Liehr v BC Sands Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Liehr v BC Sands Pty Ltd [2023] NSWPIC 651
APPLICANT:	Paul Liehr
RESPONDENT:	BC Sands Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	6 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; consequential condition; section 66; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, State of New South Wales v Bishop, Kooragang Cement Pty Ltd v Bates, and Briginshaw v Briginshaw considered and applied; Held – the applicant sustained a consequential condition of his left shoulder as a result of the accepted worker related injury to the right shoulder on 26 February 2020.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained a consequential condition of his left shoulder as a result of the accepted worker related injury to the right shoulder on 26 February 2020. The Commission orders: 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for assessment as follows: a. Date of injury: 26 February 2020 (personal injury) b. Body systems/parts: i. right upper extremity (shoulder), and ii. left upper extremity (shoulder) (consequential). c. Method of assessment: Whole person impairment 3. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents, and c. this Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

Paul Liehr, the applicant, is left hand dominant and was at the relevant time employed by BC Sands Pty Limited, the respondent, as a maintenance officer.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained injury to his right arm, right shoulder and right hand on
26 February 2020 whilst in the course of his employment with the respondent when the ladder on which he was situated servicing a piece of equipment slid out from underneath him. In an attempt to break his fall he grabbed hold of the frame of a machine which caused his right arm to be jerked by his body weight. The applicant also alleges that he developed a consequential condition of his left shoulder as a result of overreliance throughout the rehabilitation process for the right arm injury.
The respondent does not dispute that it is liable for the injury to the right shoulder.
The applicant seeks compensation for permanent impairment of the right and left upper extremities pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent:
(a) disputes that the applicant is eligible for permanent impairment compensation asserting that his accepted injury has not resulted in more than 10% permanent impairment as required by s 66(1) of the 1987 Act;
(b)    disputes that the claimed consequential condition of the left shoulder has resulted from the accepted injury;
(c)    disputes that the applicant suffered an aggravation or exacerbation of an underlying disease process in the left shoulder as a result of the injury on
26 February 2020;
(d)    disputes pursuant to s 9A of the 1987 Act that employment is a substantial contributing factor to the alleged left shoulder injury, and
(e) disputes that the applicant is entitled to permanent impairment compensation for the claimed consequential condition because the permanent impairment has not resulted from an injury as required by s 66(1) of the 1987 Act.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a) whether the applicant has received an injury that results in permanent impairment greater than 10% and is therefore eligible for permanent impairment compensation as required by s 66(1) of the 1987 Act;
(b)    whether the claimed consequential condition of the left shoulder has resulted from the accepted right arm injury;
(c)    whether the applicant suffered an aggravation or exacerbation of an underlying disease process in the left shoulder as a result of the injury on 26 February 2020;
(d)    whether pursuant to s 9A of the 1987 Act employment is a substantial contributing factor to the alleged left shoulder injury, and
(e) whether the applicant is entitled to permanent impairment compensation for the claimed consequential condition because the permanent impairment has not resulted from an injury as required by s 66(1) of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference / arbitration hearing before me on
9 November 2023. Mr James McEnaney, counsel, instructed by Ms Nadene Alawie, appeared for the applicant, who was present. Mr Tom Grimes, counsel, appeared for the respondent, instructed by Ms Mai Nguyen. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Oral evidence

Neither party sought leave to adduce oral evidence.

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.
A brief summary of the evidence follows.

Applicant’s statement evidence

It is the applicant’s evidence that he sustained injury to his right shoulder and arm on
[1] ARD p. 2.
26 February 2020 whilst in the course of his employment with the respondent performing regular maintenance on the firewood tumble machine. He was on a 3 to 3.5m long ladder when the base of the ladder slipped slightly. To prevent himself from falling he grabbed the steelwork of the firewood tumble machine with his right hand sustaining injury to his right arm due to his arm being pulled forcibly by his body weight.[1] As previously noted the respondent does not dispute that the applicant sustained injury to right shoulder in the incident.
It is also the applicant’s evidence that during the rehabilitation process he overcompensated with his left side and suffered a consequential left shoulder and arm condition.[2]
[2] ARD p. 2.
It is the applicant’s evidence that he felt immediate sharp and intense pain in his right shoulder and arm at the time of the accident on 26 February 2020.[3] Two weeks later an MRI scan was performed by which time the right shoulder pain had “severely worsened and I could barely move my arm at this point.”[4]
[3] ARD p. 2.
[4] ARD p. 3.
About one month after the accident he started having physiotherapy which he found slightly helpful in regaining strength in his right arm however the pain associated with the physiotherapy was “excruciating” and he was often in pain for two to three days after each session and incapable of using his right arm at all at that time.
It is the applicant’s evidence that the first few months were the hardest as he had no mobility in his arm which prevented him in assisting his wife around the house.[5]
[5] ARD p. 3.
As the pain in his right arm lessened, the applicant was able to return to work on restricted duties three days per week. However, he found it difficult to perform all his necessary and expected duties due to the restriction of movement of his “shoulders and arms.” In particular he was unable to perform any heavy manual lifting, climb ladders, repetitive work, manual work above shoulder height and heavy work. As a result, he was given the assistance of an offsider to undertake any heavy work and he worked for the next three to four months on “small duties on the work bench that could be performed with his left hand.”[6]
[6] ARD p. 4.
It is the applicant’s evidence that in or about early 2021, he began to experience left shoulder pain. At home he used his left side to perform activities which came naturally to him as he is left-handed. He did not do any physically strenuous activities with his left arm, but constantly used his left arm for general housework like carrying groceries, helping in the kitchen and setting the table.[7]
[7] ARD p. 4.
It is the applicant’s evidence that he reported to Dr Annett on 12 March 2021 that he had begun experiencing left shoulder pain with a restricted range of motion and that Dr Annett informed him that he had a frozen left shoulder which was a common result of over-reliance.[8]
[8] ARD p. 4.
It is the applicant’s evidence that in May 2021 he was told by the respondent that he would be made redundant as he was unable to return to his pre-injury duties. Subsequently the respondent withdrew the offer of redundancy, and he was put off work on stress leave and told to focus on getting better. Sometime after 4 June 2021 the applicant returned to work with the respondent performing office based duties.[9]

Medical evidence

[9] ARD p. 5.

On 23 April 2020 the applicant’s physiotherapist recorded in a clinical noted that the applicant reported that he was tolerating some normal duties at work as he isn’t using his right arm.[10]
[10] Reply p. 258.
On 24 June 2020 Dr Paul Annett, sport and exercise medicine physician, reported to the applicant’s general practitioner (GP), Dr Chien, that the applicant continued to make slow but favourable progress with respect to his right shoulder adhesive capsulitis. The applicant had reported that he had gained significant pain relief after a second cortisone injection to the right shoulder. There continued to be some global restriction in shoulder motion. The applicant was continuing to work eight hours per day, three days per week on restricted and supervisory duties. The applicant had a lifting restriction of less than 2 to 3kg with his right arm. On 24 June Dr Annett performed a further injection to the right shoulder.[11]
[11] ARD pp. 43-44.
On 7 August 2020 Dr Annett reported to Dr Chien that the applicant was making slow but seemingly forward progress however he continued to have a lot of pain issues. The applicant was tolerating working four days per week on restricted duties. Dr Annett performed a fourth injection to the shoulder and also recommended that the applicant trial Endep for his pain and sleep.[12]
[12] ARD p. 45.
On 18 September 2020 Dr Annett reported to Dr Chien that the right shoulder condition had improved since his previous examination six weeks prior. The applicant had benefited from taking Endep particularly with respect to his sleep. The applicant was experiencing a lot less pain. Dr Annett recommended that the applicant remain on Endep. The applicant was continuing to work eight hours per day, four days per week mainly doing light manual and supervisory duties. The doctor noted a loss of around 10 to 20 degrees in flexion motion which was a marked improvement on when he had first been seen.[13]
[13] ARD p. 46.
On 24 September 2020 the applicant attended on Dr Chien who recorded in his clinical note of the attendance that the right shoulder was still painful after work but improving.[14]
[14] Reply p. 139.
On 24 September 2020 the applicant’s physiotherapist recorded in a clinical note that the applicant was on Endep and that he reported that most of the pain was gone.[15]
[15] ARD p. 150.

On 9 October 2020 the applicant attended on Dr Chien who recorded in his clinical note of the attendance that the right shoulder was “stable”, and that the applicant was happy to increase his work to 4.5 days. The doctor provided the applicant with prescriptions for Mersyndol Forte and Mobic whilst Endep was to be ceased.[16]
[16] Reply p. 40.
Dr Chien in a certificate of capacity dated 9 October 2020 certified the applicant, due to the right shoulder injury, as having capacity for some type of work eight hours per day, 4.5 days per week. The applicant was certified with a capacity to lift, carry, push and / or pull to 1-2kg with two hands.[17]
[17] ARD p. 72-74.
On 26 October 2020 the applicant’s physiotherapist recorded in a clinical note that the shoulder was aching from being bumped four times at work.[18]
[18] ARD p. 148.
On 5 November 2020 the applicant’s physiotherapist recorded in a clinical note that there had been improvements in the right shoulder that week and the applicant had “commenced push ups on knees” and was lifting 5kg sometimes 10kg. There were nil reports of pain, mainly tightness.[19]
[19] ARD p. 148.
On 6 November 2020 the applicant attended on Dr Chien who recorded in his clinical note of the attendance that the applicant’s pain was improving but movement was still limited. The applicant’s lifting restriction was to be increased to 5kg and work hours to 40 per week.[20]
[20] Reply p. 140.
Dr Chien in a certificate of capacity dated 6 November 2020 certified the applicant, due to the right shoulder injury, as having capacity for some type of work for eight hours per day, five days per week. The applicant was certified with a capacity to lift, carry, push and / or pull to 5kg with two hands.[21]
[21] ARD p. 66-68.
On 16 November 2020 the applicant’s physiotherapist recorded in a clinical note that the applicant had returned to work five days per week in the preceding week and reported some aches generally.[22]
[22] ARD p. 147.
Dr Chien in a certificate of capacity dated 6 December 2020 certified the applicant, due to the right shoulder injury, as having capacity for some type of work for eight hours per day, five days per week. The applicant was certified with a capacity to lift, carry, push and /or pull to 5kg with two hands.[23]
[23] ARD p. 63-65.
On 7 December 2020 the applicant’s physiotherapist simply recorded in a clinical note “doing well”.[24]
[24] ARD p. 146.
On 11 December 2020 Dr Annett reported to Dr Chien that the right shoulder was continuing to make slow but forward progress. The applicant had minimal pain although he still had discomfort into end range positions of motion of the shoulder. The applicant continued to work on restrictions with a buddy with a lifting limit of about 5kg. Dr Annett discussed the possible use of an exercise physiologist.[25]
[25] ARD p. 47.
On 17 December 2020 Dr Somnuk Phonesouk examined the applicant, providing an injury management consultation report to the respondent on 24 December 2020 in which the doctor records that he found the applicant’s left shoulder to be normal. Dr Phonesouk also recorded that the applicant’s wife had been performing most of the home duties.
Dr Phonesouk observed that on examination the applicant’s right shoulder was mildly sore on palpation and with a small amount of wincing and effort he could move through a full range of motion. Dr Phonesouk observed that the right shoulder had finally started to improve and that the treatment providers had agreed that it was time to transition to an exercise program / physiology. The doctor noted that the applicant had been working hard with his physiotherapist on a weekly basis.[26]
[26] Reply p. 9.
On 21 December 2020 the applicant’s physiotherapist recorded in a clinical note that the applicant had been off work for three weeks and his shoulder had been “okay-mainly acing [sic] post work or after using the arm a lot”.[27]
[27] ARD p. 146.
On 30 December 2020 the applicant’s physiotherapist recorded in a clinical note that the applicant was still doing light duties, getting help at work. The applicant was still feeling tension towards “EOR” which I take to mean end of range of motion of the right shoulder. The physiotherapist records that the applicant had constant ache with activity and was using Voltaren gel to ease his symptoms.[28]
[28] ARD p, 145.
On 11 January 2021 the applicant’s physiotherapist recorded in a clinical note that the applicant reported some ache through his shoulder that day – “busy first day back at work”.[29]
[29] ARD p. 145.
On 15 January 2021 the applicant attended on Dr Chien who recorded in his clinical note of the attendance that the applicant was improving very slowly.[30]
[30] Reply p. 141-142.
Dr Chien in a certificate of capacity dated 15 January 2021 certified the applicant, due to the right shoulder injury, as having capacity for some type of work for eight hours per day, five days per week with a capacity to lift, carry, push and pull to 5kg with two hands.[31]
[31] ARD p. 60-62.
On 18 January 2021 the applicant’s physiotherapist recorded in a clinical note that the applicant reported right shoulder ache, mainly with overhead movements.[32]
[32] ARD p. 144.
On 25 January 2021 the applicant’s physiotherapist recorded in a clinical note that the right shoulder ache had settled, “not as noticeable during the day now”. The applicant was noted to have pain on the top of his shoulder.[33]
[33] ARD p. 144.
On 1 February 2021 the applicant’s physiotherapist recorded in a clinical note that the right shoulder ached that day – “work has been busy moving”. The applicant was advised to “reduce OH ex’s on days where arm is aching from work”.[34]
[34] ARD p. 143.
On 8 February 2021 the applicant’s physiotherapist recorded in a clinical note that the right shoulder continued to ache with busy days at work.[35]
[35] ARD p. 142-143.
On 12 February 2021 the applicant attended on Dr Chien who recorded in his clinical note of the attendance that the applicant was the same and that he was managing being back on 40 hours per week at work. He was to start exercise physiology on the following Monday.[36]
[36] Reply p. 142.
Dr Chien in a certificate of capacity dated 12 February 2021 certified the applicant, due to the right shoulder injury, as having capacity for some type of work for eight hours per day, five days per week with a capacity to lift, carry, push and / or pull to 5kg with two hands.[37]
[37] ARD pp. 57-59.
On 26 February 2021 Dr Chien provided a prescription to the applicant for Mobic. The doctor provided a further prescription for Mobic on 12 March 2021.[38]
[38] Reply p. 143.
On 12 March 2021 the applicant’s physiotherapist recorded in a clinical note that there had been improvements in pain and that stiffness was the main complaint.[39]
[39] Reply p. 240-241.
On 12 March 2021 Dr Annett reported to Dr Chien that the applicant had reported that his right shoulder pain had continued to improve although he continued to have some stiffness. The applicant was still working with a buddy and had problems with some functional activities over the top of his head and also getting up and down ladders and in and out of trucks.
[40] ARD p. 48.
Dr Annett noted that the applicant had commenced with an exercise physiologist over the previous two weeks which he was finding helpful.[40] Dr Annett does not mention the applicant’s left shoulder in his report.
Dr Chien in a certificate of capacity dated 12 March 2021 certified the applicant, due to the right shoulder injury, as having capacity for some type of work for eight hours per day, five days per week. The applicant was certified with a capacity to lift and carry to 10kg with two hands and push and pull to 15kg with two hands.[41]
[41] ARD pp. 54-56.
On 12 April 2021 Dr Chien, in his clinical note of a case conference, records that the applicant was able to lift up to 15kg and push up to 20kg. That the applicant was attending physiotherapy every three weeks and “exercise physio weekly”. Dr Chien referred the applicant to Dr John Trantalis.[42]
[42] Reply p. 144.
Dr Chien in a certificate of capacity dated 12 April 2021 certified the applicant, due to the right shoulder injury, as having capacity for some type of work for eight hours per day, five days per week. The applicant was certified with a capacity to lift and carry to 15kg with two hands and push and pull to 20kg with two hands.[43]
[43] ARD pp. 51-53.

The applicant completed a patient information sheet for Dr John Trantalis, shoulder and elbow surgeon, on which the applicant recorded that both shoulders were a problem.[44] The patient information sheet is undated but presumably was completed prior to, or at the time of his first appointment with Dr Trantalis. The applicant was referred to Dr Trantalis by Dr Chien on 12 April 2021. It is the applicant’s evidence that he was first examined by Dr Trantalis on 7 May 2021 and that at that time he informed the doctor of increasing left shoulder pain.[45]
[44] ARD p. 228.
[45] ARD p. 5.
Dr Trantalis appears to have initially reported on the applicant on 7 May 2021.
On 7 May 2021 Dr Trantalis reported to Dr Chien observing that the applicant had since the subject work injury had a difficult time with quite a lot of right shoulder pain and stiffness.
[46] ARD pp. 176-177.
Dr Trantalis noted that the applicant had constant right shoulder pain which radiated down the arm and at times he had numbness and paraesthesia in both hands. The doctor noted that the applicant had a lot of rest pain which implied that the shoulder condition was in its early stages and recommended that the applicant stop physical therapy and exercise physiology to give the shoulder time to settle down.[46]
Even though Dr Trantalis appears to have been advised that the left shoulder was symptomatic, the applicant’s evidence being that he discussed his left shoulder problems with the doctor and also the patient information sheet on which the applicant had recorded that both shoulders were a problem, the doctor does not comment on the condition of the left shoulder in his report.
On 11 May 2021 Dr Chien, in his clinal note of a case conference, records that the applicant had been seen by an orthopaedic surgeon (Dr Trantalis), that the applicant was not to exercise, that he was to rest and take pain relief and not to lift more than 2kg.[47]
[47] Reply p. 145.
On 20 May 2021 the applicant attended on Dr Chien. The clinical note from the attendance records that the applicant complained of both right and left shoulder pain. That he could not do his usual work. Dr Chien in the clinical note records “L shoulder pain – not better, R starts to have pain”.[48] To my mind there is uncertainty as to whether the doctor has confused the shoulders as the right shoulder had been painful since the subject work accident and this is the first time that Dr Chien refers to left shoulder pain following the subject work incident. It seems strange that the doctor would have referred to the right shoulder starting to pain when the applicant had suffered from varying degrees of right shoulder pain since the work accident.
[48] Reply p. 145.
On 23 July 2021 Dr Trantalis reported to the workers compensation insurer that the applicant had a very aggravated left shoulder with quite significant inflammation.[49]
[49] ARD p. 174.
On 9 February 2022 Dr Linda Martin (fellow for Dr Trantalis) reported to Dr Chien that the applicant had reported that whilst his right shoulder was doing quite well with minimal pain he was suffering from pain along the anterior aspect of his left shoulder. The applicant denied any trauma or injury to the left upper extremity. Dr Martin observed that there had been an improvement in the right shoulder symptoms since his previous visit. In respect to the left shoulder the doctor was of the opinion that the clinical findings were consistent with early adhesive capsulitis.[50] Dr Martin did not provide an opinion as to what had caused the left shoulder condition to develop.
[50] ARD p. 38.
On 10 August 2022 Dr Nicholas Murray (a fellow for Dr Trantalis) reported to Dr Chien that the applicant was suffering from bilateral shoulder problems. Dr Murray reported in regard to the left shoulder that there had been some tenderness for around nine months which is clearly incorrect with the left shoulder having been symptomatic from at least May 2021.[51]
[51] ARD p. 168.
On 12 July 2023 Dr Chien reported on the applicant. Dr Chien records that the applicant started experiencing pain in his left shoulder with limitation of movement in early 2021 due to overuse of his left shoulder to compensate for his injured right shoulder. The applicant was advised not to overuse and overlift with his left shoulder and rest as required.[52]
[52] ARD pp. 40-41.
Dr Roger Rowe, orthopaedic surgeon, provided an expert forensic report to the respondent dated 1 June 2021. Dr Rowe noted that the applicant reported that his left shoulder was starting to ache.[53] In respect to the applicant’s activities post injury Dr Rowe noted that the applicant had continued to work on light duties with the assistance of an offsider to undertake any heavier duties. At home the applicant did some cooking, washing and washing of dishes. As he had been unable to use the pull start on the lawn mower his wife and children had been mowing the lawns.[54] Otherwise the doctor did not take any history of the applicant’s activities post injury. Dr Rowe at this stage did not provide any opinion as to the cause of the development of the left shoulder symptoms.
[53] Reply p. 16.
[54] Reply pp. 15-16.
On examination Dr Rowe observed that the right shoulder still had some restricted range of motion. The right shoulder ached with a lot of use such as when he was working. Dr Rowe noted that the applicant reported that his right shoulder had improved since he had been off work for the last couple of weeks on stress leave, he had also ceased physiotherapy during this period.[55] Dr Rowe agreed with Dr Trantalis that the applicant should not be attending physiotherapy or exercise physiology or have any further injections to his right shoulder to give the shoulder a chance to settle.[56]
[55] Reply p. 16.
[56] Reply p.19.
Dr Rowe provided a further medico-legal report on 7 March 2023 in which the doctor reported that the applicant had developed a left frozen shoulder in addition to his right frozen shoulder. Dr Rowe noted that the applicant had reported that he thought that the left shoulder symptoms had commenced about six to nine months after the right shoulder injury however, Dr Rowe noted that the first reference to left shoulder complaints which he was able to find in the documentation with which he had been provided was in around the middle of 2021.[57] The doctor noted that the applicant was of the opinion that his left shoulder symptoms had been caused by favouring his right shoulder.[58]
[57] Reply p. 35.
[58] Reply p. 39.
Dr Rowe is of the opinion that the left frozen shoulder has not developed as a consequence of the right shoulder injury. In support of his opinion Dr Rowe observed that the applicant’s left shoulder is his dominant shoulder and would be used more actively than his right shoulder in the normal course of his day to day activities, that there was no description of any markedly increased work required by the left shoulder and that the condition of frozen shoulder is an inflammatory one and does not come on secondary to the similar problem in the other shoulder.[59] Dr Rowe records no real history of the applicant’s activities post injury and prior to the onset of the left shoulder symptoms.
[59] Reply p. 41.
It is noted that whilst the applicant has served a report of Dr Bodel with the documents attached to the ARD the applicant does not rely on that report in respect to causation and concedes that the doctor has taken an incorrect history in respect to injury.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

FINDINGS AND REASONS

Consideration and findings

It is not disputed that the applicant sustained injury to his right shoulder in the course of his employment on 26 February 2020. The applicant does not allege that he sustained an injury to his left shoulder on 26 February 2020, rather the applicant alleges that he has sustained a consequential condition of the left shoulder as a result of the accepted right shoulder injury.
The respondent disputes that the applicant has sustained a consequential condition of the left shoulder.
There is no dispute that the applicant does suffer from a left shoulder condition. The medical evidence supports that the applicant suffers from a left frozen shoulder.
To establish that the left shoulder is a consequential condition the applicant has to prove, on the balance of probabilities, that the left shoulder symptoms and restrictions have resulted from the injury sustained to the right shoulder on 26 February 2020. In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [100] (Brennan) Deputy President Snell observed that it is not necessary for a worker alleging a consequential condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act.
Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) involved a compensable injury to the right shoulder which allegedly resulted in a consequential condition of the left shoulder. In Moon Deputy President Roche at [45] stated:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury…”
The question whether a consequential condition has been sustained is a question of fact: State of New South Wales v Bishop [2014] NSWCA 354. Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Bates).
The applicant bears the onus of establishing on the balance of probabilities that he has developed a consequential condition of the left shoulder as a result of the accepted injury to his right shoulder on 26 February 2020. For a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact: see Briginshaw v Briginshaw [1938] HCA 34; 91938) 60 CLR 336.
Whilst the respondent gave notice to the applicant that it disputed pursuant to s 9A of the 1987 Act that employment is a substantial contributing factor to the alleged left shoulder injury as well as that the applicant suffered an aggravation or exacerbation of an underlying disease process in the left shoulder as a result of the injury on 26 February 2020 I am of the understanding that these two issues were not pressed at the arbitration hearing. Notice of these two issues appears to have been given by the respondent in response to the possibility that the applicant was alleging that he had sustained injury to his left shoulder in the work incident on 26 February 2020. However, for the sake of completeness s 9A of the 1987 Act and s 4(b) of the 1987 Act which defines “injury” to include “disease injury” have no application in the current matter as the applicant is only alleging that he has suffered a consequential condition of the left shoulder. Therefore, in accordance with the decisions in Brennan and Moon the applicant does not need to establish injury in accordance with s 4 of the 1987 Act but rather that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury.
The respondent submits that the opinion of Dr Rowe that the left frozen shoulder has not developed as a consequence of the right shoulder injury should be accepted. The applicant submits that the said opinion of Dr Rowe should not be accepted.
The respondent in summary submits that the evidence supports that prior to the development of the left shoulder condition the applicant had significant functional use of his right shoulder and that his work duties following the subject accident completely changed with the applicant being placed on light duties and being provided with an assistant and therefore the history taken by Dr Rowe that there was no markedly increased work by the left shoulder is correct.
I do not accept the opinion of Dr Rowe for the following reasons.
Dr Rowe, apart from noting that the applicant continued to work on light duties with an assistant to undertake the heavier duties, that he assisted with some cooking, washing and washing of dishes and that the applicant’s wife and children took over mowing the lawn, records little in respect to the applicant’s activities post injury. In particular Dr Rowe records no detail as to the nature of the work duties which the applicant did perform, how his restrictions changed overtime, what effect those duties had on his right shoulder and what reliance he placed on his left shoulder. The key aspect for Dr Rowe appears to be that the duties were lighter, no consideration appears to be given to repetition.
It is the applicant’s evidence that he began to experience left shoulder symptoms in or about early 2021 and that during an interview with Dr Annett on 12 March 2021 he told the doctor that he had begun experiencing excruciating left shoulder pain with a restricted range of motion. However, Dr Annett in his report of 12 March 2021 makes no mention of the left shoulder. The first reference in the medical records to the left shoulder being symptomatic is on or about 7 May 2021 when the applicant completed a patient information sheet for
Dr Trantalis on which the applicant gave notice that he was having problems with both shoulders.
Whilst it is the applicant’s evidence that he discussed his left shoulder symptoms with
Dr Trantalis the doctor makes no reference to left shoulder symptoms in his report to
Dr Chien of 7 May 2021. Dr Chien however in his clinical note for the applicant’s attendance on 20 May 2021 clearly records that the applicant had complained of left shoulder pain and on 23 July 2021 Dr Trantalis noted that the applicant’s left shoulder was very aggravated with quite significant inflammation.
The evidence therefore supports that the applicant had developed left shoulder symptoms either by 12 March 2021, or if the applicant’s recollection of reporting the symptoms to
Dr Annett is incorrect, at least by 7 May 2021. The report of Dr Phonesouk that the left shoulder was normal on examination on 17 December 2020 is consistent with the left shoulder having become symptomatic in early to mid-2021.
Following sustaining injury to his right shoulder on 26 February 2020 the applicant had significant right shoulder pain as well as severe restriction of right shoulder range of movement. However, whilst during this period the applicant was heavily reliant on his left arm and shoulder, the right shoulder having little functional capacity, the applicant was off work, and it is the applicant’s evidence that for the first few months he was prevented from assisting his wife around the house as he had no right arm mobility. During this period, the applicant would have been utilising his left shoulder to a lesser degree than he would have had he not sustained the right shoulder injury.
With time the applicant’s right shoulder symptoms lessened and on or about 15 April 2020 the applicant returned to work on restricted duties and reduced hours. On 9 April 2020
[60] ARD p. 112.
Dr Chien certified the applicant fit to work eight hours per day, three days per week with a lifting, carrying, pushing and / or pulling capacity of 1-2kg.[60] Prior to 10 April 2020 the applicant had been certified with no current work capacity.
Due to the restrictions caused by the right shoulder injury the applicant was given the assistance of an offsider to undertake the heavy work and it is the applicant’s evidence that he worked for the next three to four months on small duties that could be performed with his left hand on a work bench. The applicant’s evidence is supported by a clinical note made by the applicant’s physiotherapist on 23 April 2020 who recorded that the applicant was tolerating normal duties at work as he wasn’t using his right arm. Therefore, on returning to work the applicant’s duties were far lighter than they had been prior to sustaining injury to his right shoulder however the duties which he was performing were performed solely with his left arm.
Following his return to work the applicant continued to receive treatment for his right shoulder and some improvement in his left shoulder condition appears to have occurred.
On 1 July 2020 Dr Chien provides a certificate of capacity which increases the hours which the applicant was able to work from eight hours per day, three days per week to eight hours per day, four days per week. The previous lifting, carrying, pushing and pulling limit of 1-2kg remained unchanged. Whilst Dr Annett reported to Dr Chien on 7 August 2020 that the applicant was tolerating working four days per week it is clear that the right shoulder continued to be significantly symptomatic with Dr Annett performing a fourth injection to the shoulder and recommending that the applicant trial Endep for his pain and sleep.
By September 2020 the applicant does appear to have had a significant improvement in respect to his right shoulder pain with Dr Annett reporting to Dr Chien on 18 September 2020 that the applicant was experiencing a lot less pain and the applicant’s physiotherapist noting on 24 September that the applicant reported that most of his pain was gone. However, even though the applicant was continuing to perform light duties eight hours per day, four days per week, those duties were aggravating the right shoulder condition with Dr Chien noting on
24 September 2020 that the right shoulder was still painful after work.
The applicant appears to be a particularly stoic person as Dr Chien records that on
9 October 2020 the applicant was happy to increase his work hours to 4.5 days per week whilst at the same time being provided with prescriptions for Mersyndol Forte and Mobic. Whilst the applicant’s hours of work were increased to eight hours per day, 4.5 days per week his capacity to lift, carry, push and / or pull remained at 1-2kg with two hands.
By November 2020 the right shoulder had improved to the point where the applicant’s physiotherapist on 5 November commenced the applicant performing push ups on his knees and noted nil reports of pain however there was still tightness of the right shoulder. On
6 November 2020 Dr Chien noted that the applicant’s pain was improving rather than that there was nil pain and also noted that right shoulder movement was still limited.
On 6 November 2020 Dr Chien increased the hours which the applicant could work to eight hours per day, five days per week whilst at the same time increasing the amount which the applicant could lift, carry, push and pull with two hands from 1-2kgs to 5kg. On 16 November the applicant’s physiotherapist noted that the applicant reported some general aches having returned working eight hours per day, five days per week in the preceding week.
On 11 December 2020 Dr Annett reported to Dr Chien that the applicant had minimal right shoulder pain whilst Dr Phonesouk who examined the applicant on 17 December 2020 observed that the right shoulder was mildly sore on palpation. Both Dr Annett and
Dr Phonesouk noted that the applicant had discomfort in the right shoulder at end range of motion. Significantly the applicant appears to have been off work at the time that he was examined by both Dr Annett and Dr Phonesouk with the applicant’s physiotherapist noting on 21 December that the applicant had been off work for three weeks and significantly also noting that that the shoulder had been okay, mainly aching post work after using it a lot.
At this point the applicant’s complaints in respect to his right shoulder symptoms increasing with activity, and in particular in respect to his work duties commence to increase.
On 30 December 2020 the applicant’s physiotherapist noted that the applicant had constant right shoulder ache with activity and using Voltaren gel to relieve his symptoms. Then on
11 January 2021 the physiotherapist noted that the applicant had some aching of the shoulder that day noting that the applicant had reported a “busy first day back at work”.

The applicant continued on his previous work restrictions and on 18 January 2021 the physiotherapist noted that the applicant reported right shoulder ache mainly with overhead movements. Whilst the physiotherapist noted on 25 January 2021 that the right shoulder ache had settled and was not as noticeable during the day, the physiotherapist also noted pain affecting the top of the shoulder. On 1 February 2021 the physiotherapist noted that the applicant’s right shoulder was aching that day “work has been busy moving” and the applicant was advised to reduce his shoulder exercises on the days when his arm was aching from work and on 8 February 2021 the physiotherapist noted that the right shoulder continued to ache with busy days at work.
Whilst the physiotherapist had noted that the right shoulder continued to ache with busy days at work and had advised the applicant to reduce his shoulder exercises on the days when his arm was aching, Dr Chien noted on 12 February 2021 that the applicant was to commence exercise physiology on the following Monday. On 26 February 2021 Dr Chien provided a further prescription for Mobic.
On 12 March 2021 Dr Annett reported that there had been continued improvements in the right shoulder pain although some stiffness continued. Oddly, given the opinions of
Dr Trantalis and Dr Rowe, which will be discussed below, Dr Annett reported that the applicant had found the exercise physiology helpful. Whilst it is the applicant’s evidence that he reported left shoulder symptoms to Dr Annett on 12 March 2021 the doctor makes no reference to this in his report.
On 12 March 2021 Dr Chein increased the applicant’s capacity to lift and carry with two hands from 5kg to 10kg and his capacity to push and pull with two hands from 5kg to 15kg. Then on 12 April 2021 Dr Chien further increased the applicant’s capacity to lift and carry with two hands to 15kg and his capacity to push and pull with two hands to 20kg.
It is after the onset of the left shoulder symptoms either in or about March or at the latest May 2021 that on the applicant’s evidence he is offered a redundancy that is subsequently withdrawn and goes off work.
In my view the evidence supports that the applicant on returning to work with the respondent initially used his left arm almost exclusively to perform his work duties. Whilst his right shoulder condition did improve overtime with a reduction in pain and an increase in range of motion it did remain symptomatic and was aggravated by activity and in particular by his work duties. As the applicant’s hours of work increased and as the restrictions on lifting, carrying, pushing and / or pulling were reduced the applicant’s right shoulder became more susceptible to being aggravated by his work duties particularly after 6 November 2020.
The opinions of both Dr Trantalis and Dr Rowe support that the right shoulder conditions was aggravated by activity with Dr Rowe agreeing with the recommendation of Dr Trantalis of
7 May 2021 that he stop physical therapy and exercise physiology to give the right shoulder an opportunity to settle. Dr Rowe had also noted in his report of 1 June 2021 that the applicant had reported that his right shoulder had ached with a lot of use such as when he was working and that the right shoulder had improved when he was off work.
It is significant that at the time of the onset of the left shoulder condition the applicant was working approximately 40 hours per week and the lifting, carrying, pushing and pulling restrictions had been and were in the process of being relaxed. The applicant is left hand dominant. It is the applicant’s evidence that using his left hand to compensate for his right shoulder came naturally to him. As the applicant’s work duties were exacerbating his right shoulder symptoms, I accept that the applicant would have used his left arm to a greater extent to compensate especially as his hours of work increased and his restrictions in respect to lifting, carrying, pushing and / or pulling were reduced. In short as the applicant’s hours of work increased and as he was cleared to work heavier duties the right shoulder condition was aggravated by work which led to an increased use of the dominant left shoulder and arm. The increase in the physicality of the applicant’s work duties corresponds with the development of the left shoulder symptoms. Whilst the applicant is left hand dominant and would have, uninjured, relied on his left hand to a greater extent than his right he was at the time working five days a week, eight hours a day compensating for right shoulder injury with his left arm.
Dr Rowe provided the opinion that the condition of frozen shoulder is an inflammatory one and does not come on secondary to the similar problem. Dr Rowe does not state what he means by the opinion and on what basis that opinion is given.
Based on a commonsense evaluation of the causal chain I am comfortably satisfied, based on the applicant’s evidence and the histories set out in the medical evidence that that the applicant’s left shoulder symptoms have resulted from his right shoulder injury. Whilst the GP Dr Chien does in a report dated 12 July 2023 state that the applicant started experiencing pain in his left shoulder with limitation of movement in early 2021 due to overuse of the left shoulder to compensate for the injured right shoulder to quote Deputy President Roche in Moon at [49]:
“The connection between the left shoulder symptoms and the right shoulder injury – the overuse of the left shoulder as a result of restrictions in the right shoulder – is, in the circumstances of the present case, so obvious that it requires no further explanation by the medical experts (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [88]- [89]).”
The applicant submitted that rather than the matter being referred to a Medical Assessor for an assessment of permanent impairment an award should be made in favour of the applicant pursuant to s 66 of the 1987 Act for 16% whole person impairment (WPI). The respondent submits that in the event that a consequential condition of the left shoulder is found then the matter should be referred to a Medical Assessor for assessment of permanent impairment.
I decline to make an award for permanent impairment compensation pursuant to s 66 of the 1987 Act and will refer the matter to the President for referral to a Medical Assessor for the following reasons. Both Dr Rowe and Dr Bodel have made no deductions pursuant to s 323 of the 1998 for pre-existing conditions. Both doctors record no prior history of shoulder complaints. However, on 23 May 2016 the applicant attended on Dr Aaron Chien. The clinical note from the attendance records that the applicant complained of left shoulder pain.[61] Also on 20 June 2016 a right shoulder ultrasound was performed in respect to which Dr Guy O’Connell reported some abnormalities.[62] Given that there are shoulder complaints prior to the date of the subject work injury, albeit some years prior, which Drs Bodel and Rowe were unaware of I am of the opinion that it is appropriate for the matter to be referred to the president for referral to a Medical Assessor for impairment assessment.
[61] Reply pp. 120-121.
[62] Reply p. 205.

SUMMARY

I find that:
(a) the applicant sustained a consequential condition of his left shoulder as a result of the accepted worker related injury to the right shoulder on 26 February 2020.

[2023] NSWPIC 651

6 December 2023