Lyons v Secretary, Department of Planning, Industry and Environment

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Lyons v Secretary, Department of Planning, Industry and Environment [2023] NSWPIC 292
APPLICANT:	Kyle Lyons
RESPONDENT:	Secretary, Department of Planning, Industry and Environment
Member:	John Wynyard
DATE OF DECISION:	20 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of right shoulder surgery; whether need for surgery arose from subject injury; applicant suffered right shoulder injury in fall, developed dislocations three months later; Held – subsequent dislocations causally connected to subject injury and would not have occurred but for subject injury; Secretary, New South Wales Department of Education v Johnson, The State Government Insurance Commission v Oakley and Carr v State of New South Wales (Mid North Coast Local Health District) considered and applied; award for the applicant.
determinations made:	1. The respondent will meet the costs of and associated with the right shoulder arthroscopy and open Latarjet stabilisation with coracoid bone transfer surgery as recommended by Dr Wade Harper.

STATEMENT OF REASONS

BACKGROUND

Kyle Lyons, the applicant, seeks a declaration that the proposed surgery recommended by Dr Wade Harper is reasonably necessary with consequent orders.
The respondent is Secretary, Department of Planning, Industry and Environment.
The Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) did the requirement for surgery arise from the pleaded injury on 30 December 2021, and
(b) there is no dispute that the surgery is reasonable necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The parties attended a video link hearing on 24 February 2023. The applicant was represented by Mr Stuart Moffet of counsel instructed by Mr Ivica Covici of the Walker Legal Group. Mr Tony Baker of counsel appeared for the respondent, instructed by Ms Mersina Kikinis from Messrs HWL Ebsworth Lawyers. Ms Karen Teuma appeared for QBE.
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
Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD) dated 8 December 2022 from applicant;
(c)    ALD dated 16 February 2023 from applicant;
(d)    Reply and attached documents, and
(e)    ALD dated 15 February 2023 from respondent.

Oral evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

Mr Lyons was employed by the Parks and Wildlife division of the respondent since about 2019. He worked as a Field Officer, doing general maintenance duties. On 30 December 2021 Mr Lyons was performing his duties at Towra Nature Reserve, placing baits for foxes from a boat on some islands within the reserve. Whilst alighting from the boat he slipped, injuring his right shoulder. He said at [16] of his statement dated 29 November 2022:
“… I had immediate pain in the right shoulder. I had trouble moving the arm immediately. I recall having feeling a crunching sensation in the right shoulder [sic].”
It is the nature of this injury that is the reason for the declinature of liability by the insurer.
Mr Lyons said at [8] of his statement that in about 2009 whilst he was in high school (Mr Lyons was born in 1991) he had a keyhole right shoulder stabilisation operation. He said he had no trouble with his shoulder and was thereafter playing rugby league. He said that in about April or May 2021, whilst playing rugby league, he fractured his right scapular and injured his right ring finger. His right arm had been in a sling for a few weeks before his fracture healed. Mr Lyons ceased playing rugby league that point, but he returned to work and “was able to manage perfectly okay.”
Mr Lyons was working on suitable duties following the subject injury, being treated by his general practitioner (GP) Dr Han, and physiotherapist Mr Ko from the Maroubra Medical Centre. “In around February” 2022 however Mr Lyons suffered a further injury to his right shoulder whilst kicking a football in the park with his son. This injury was a dislocation, which Mr Lyons said at [23] of his statement he was “able to pop it back in within a few minutes of the fall.” Mr Lyons said that prior to that incident his right shoulder condition “was still not good” and he was struggling with the pain, with restricted movement, clicking noises and a feeling of general instability and weakness in the right arm.
At [25] Mr Lyons said in about early June 2022 he woke in the early hours of the morning to find that his shoulder had dislocated whilst he had been sleeping. An ambulance was called and a paramedic “popped it back in.” Mr Lyons then consulted his GP and was referred to Dr Harper, who had performed the right shoulder stabilisation procedure in 2009.Mr Lyons saw Dr Harper on 1 August 2022 and a right shoulder revision stabilisation procedure was recommended by Dr Harper, which proposal has been not accepted by the insurer, and is the subject of these proceedings.

On 28 September 2022 Mr Lyons consulted Dr Peter Endrey -Walder. That morning, Mr Lyons’ right shoulder again dislocated, but relocated of itself. At [35] Mr Lyons said:
“I am not a doctor, but I would say that the incident when I injured my shoulder at work on 30 December 2021 has been the cause of my right shoulder problems. Ever since then, my right shoulder and arm had been troubled by pain, restricted movement and weakness and instability and clicking noises. Even though I have had subsequent dislocations of the shoulder, I would say that it is because of the initial dislocation that happened at work and my right shoulder condition had not completely healed by the time of the subsequent dislocations.”

Dr Wade Harper

Dr Wade Harper, shoulder and elbow surgeon, reported on 1 August 2022. Dr Harper took a history that was consistent with Mr Lyons statement, noting that on 30 December 2021 Mr Lyons “reinjured” his right shoulder when getting off the front of a boat at work. Dr Harper recorded:[1]
“To avoid falling on its head, [Mr Lyons] took all force with his right outstretched arm…”
[1] ARD page 28.
Dr Harper noted the subsequent two dislocations and said that X-rays of the right shoulder showed a “large Hill-Sachs lesion, evidence of previous radio lucent anchors in the anterior glenoid and loss of anterior glenoid bone definition.”
Dr Harper stated that Mr Lyons “had recurrent right shoulder instability after significant fall at work.” He recommended the operative treatment that is the subject of this application.

Dr Peter Endrey-Walder

Dr Peter Endrey-Walder, general and trauma surgeon, supplied a medico-legal report dated 27 September 2022.
Dr Endrey-Walder took a consistent history of the injury on 30 December 2021. He also recorded the subsequent dislocations in February and July 2022. He also noted that Mr Lyons had suffered a dislocation of the shoulder on the morning of the consultation. He noted Dr Harper’s recommendation, and his comment on the X-ray of the right shoulder. Dr Endrey-Walder also noted that liability had been declined on the basis of a report by Dr Cairns.
Dr Endrey-Walder referred to Dr Cairns’ report of 24 August 2022, and noted that Dr Cairns had taken an incorrect history. Dr Cairns had said that Mr Lyons had “recovered satisfactorily” from the subject injury and was back at work on normal duties when he suffered his injury whilst kicking a football with his son. Dr Endrey-Walder noted that his history was that Mr Lyons was not back on pre-injury duties at the time, and that in fact Mr Lyons had been on light duties for some weeks following the subject injury. That fact, Dr Endrey-Walder stated, “would attest to a significant injury, in fact, significant enough to be the main contributing factor to the subsequent recurrence of subluxations/dislocations of his right (dominant) shoulder.”[2]
[2] ARD page 26.
In a further report dated 30 November 2022, Dr Endrey-Walder was invited by his retaining solicitors to consider again the report of Dr Cairns of 24 August 2022, along with clinical notes from Maroubra Medical Centre and various radiology reports. Dr Endrey-Walder stated that Dr Cairns’ opinion was “an illogical conclusion.”[3]
[3] ALD dated 8 December 2022, page 1.
Dr Endrey-Walder noted that the dispute notice from the insurer had accepted that Mr Lyons suffered an injury on “13” December 2021 (the date of “13” December 2021 is obviously a typographical error, and should be “30”). Dr Endrey-Walder advised that in claiming that the subsequent dislocations had broken the chain of causation, the insurer had exhibited “a very twisted logic by any standard.”
“… It is unreasonable, in my opinion, to contended that the fall onto the right arm while kicking a football with his son would have precipitated a dislocation were it not for the damage suffered in the work incident only some weeks earlier.
More specifically, it is my opinion that Mr Lyons is likely to have suffered damage to the labrum of the glenoid cavity of his right shoulder and likely some stretching of the shoulder joint capsule that predisposed him to the dislocation when he fell playing with his son.”
In a third report dated 13 February 2023, Dr Endrey-Walder was asked to comment on a further report from Dr Cairns dated 9 January 2023. Dr Endrey-Walder noted that Dr Cairns on this occasion had extracted a portion of Dr Harper’s report, but had failed to comment on Dr Harper’s view of causation, which was that Mr Lyons had suffered a recurrent right shoulder instability after his significant fall at work. Dr Endrey-Walder dismissed Dr Cairns’ report as containing selective quotes from Dr Harper and failing to grapple with either Dr Harper’s or Dr Endrey-Walder’s opinions regarding causation.

Dr Gavin Soo

Dr Gavin Soo, shoulder and knee surgeon, also supplied a medico-legal report for the applicant, on 16 February 2023.[4] Dr Soo took a consistent history of the subject injury, noting that Mr Lyons, following the event, noted ongoing pain, clicking and weakness in the right arm and feeling that something was not right in his shoulder. Dr Soo also noted that Mr Lyons saw his GP on 5 January 2022 when X-rays and an ultrasound were ordered which subsequently led to a diagnosis of tendinitis and a referral for physiotherapy. Mr Lyons was also placed on light duties, Dr Soo recorded.
[4] ALD 16.3.23 page 5.
Dr Soo also reported that despite the physiotherapy, Mr Lyons continued to experience pain and clicking as well as restricted movement in his shoulder, which restricted him from doing activities above shoulder height. Dr Soo took a consistent history of the subsequent problems encountered by Mr Lyons, culminating in his attendance on Dr Harper and the subject claim.
As to causation, Dr Soo noted Mr Lyons’ past history. There had been no problems of instability since the surgical stabilisation in 2009 and Dr Soo noted Mr Lyons’ return to playing rugby league thereafter. He took a history that Mr Lyons fractured his right scapular and April 2021, but noted that no surgical and invention was required, and that he recovered sufficiently to be able to continue to play rugby league.
Dr Soo noted that following the subject accident Mr Lyons experienced ongoing instability in the right shoulder, and that he returned to work on light duties, with the shoulder continuing to give symptoms. Dr Soo said:[5]
“… Although there was not a frank dislocation event on the 30/12/2021, it is highly likely that he suffered an acute subluxation of the right shoulder which rendered the shoulder unstable and caused his ongoing symptoms of pain, clicking and weakness.”
[5] ALD 16.3.23 page 9
Dr Soo noted that Mr Lyons was still on restricted duties when he suffered the dislocation whilst playing with his son in February 2022. Dr Soo said:
“Thus I am of the opinion that the accident work on the 30/12/2021 in the course of his employment as a Field Officer for Parks & Wildlife OEH is a substantial contributing factor towards Mr Lyons right shoulder instability and the need for ongoing treatment.”

Dispute notices

The respondent issued dispute notices dated 31 August 2022 and 10 October 2022. It relied on the opinion of Dr Cairns to decline liability on the basis that it had not been shown that employment was a substantial contributing factor to the right shoulder injury pursuant to s 9A of the Workers Compensation Act 1987 (the 1987 Act). Specifically, the notices maintained that Mr Lyons had recovered from the subject injury to the extent where he could perform his preinjury duties, and that therefore the requirement for the proposed surgical treatment had arisen as a result of the February 2022 incident when Mr Lyons dislocated his shoulder whilst playing with his son.
The s 287A notice of 10 October 2022 noted Dr Endrey-Walder’s opinion but preferred Dr Cairns view that the subsequent dislocations “have broken the chain of causation between the [subject injury] and your current presentation and need for surgery.” The notice relied on Dr Cairns’ finding that Mr Lyons had returned to his preinjury duties prior to the first shoulder dislocation in February 2022.

Dr Anthony Cairns

Dr Anthony Cairns, consultant orthopaedic surgeon, provided three reports to the insurer dated 24 August 2022, 9 January 2023 and 7 February 2023.
In his report of 24 August 2022, Dr Cairns took a consistent history of the subject injury, noting that an X-ray had been taken at the behest of Dr Han, Mr Lyons’ GP, which showed that Mr Lyons was suffering tendinitis.
Dr Cairns recorded:[6]
“[Mr Lyons] was placed on light duties and attended physiotherapy for an unspecified interval during which his shoulder improved to the extent that although it was ‘clicking’ it was non-painful and a return to normal duties was pending.”
[6] Reply page 3
Dr Cairns recorded as part of the history that Mr Lyons had not participated in rugby league for two years with the exception of two occasions in 2021, one of which resulted in his suffering a scapular fracture which took two or three weeks to recover.
Dr Cairns’ diagnosis was that the subject incident had resulted in a soft tissue strain involving the rotator cuff tendon “from which he effected a satisfactory recovery over the ensuing eight weeks.” A second diagnosis was that there was a subsequent frank shoulder dislocation when Lyons was playing with his son about two months later “shortly before pending return to work.”
Dr Cairns advised that the subject incident was not a substantial contributing factor to his current clinical presentation, as distinct from the subsequent incident when Mr Lyons was kicking a football with his son.
Dr Cairns’ report of 9 January 2023 followed a further review of the documentation that was before him.[7] He consulted Dr Han’s clinical notes, observing that Dr Han certified Mr Lyons as being fit for restricted duties following the subject injury. Dr Cairns also noted the claim form/incident report dated 6 January 2022 in which Mr Lyons had written that as he fell forward from the boat he “hit the ground “and that he felt his shoulder “giving way” and that he “felt a crunch.”
[7] ALD 15.1.23 page 1
Dr Cairns observed in parenthesis at this point:
“(Noted that despite his long-standing awareness and familiarity with the sensation of shoulder instability/dislocation, [Mr Lyons] does not specifically report that sensation ie dislocation, as he does on subsequent occasions, rather ‘giving way’.)”
Dr Cairns also indicated that he “clearly” recalled discussing “in some depth” the circumstances of the subject injury and in particular whether Mr Lyons had felt any subluxation or dislocation, to which he got a negative answer. Dr Cairns noted that at the time of the first dislocation in February 2022, Mr Lyons was on light duties but that a return to preinjury duties was pending.
Dr Cairns observed that Mr Lyons was “an affable and entirely credible witness, and I have no cause to doubt any element of his history has presented to me.”
Dr Cairns was specifically asked whether he considered Mr Lyons to have recovered from the shoulder injury of 30 December 2021, and he responded:[8]
[8] ALD 15.2.23 pages 3-4.
“•      On the basis of the credible history offered by the claimant, and consistent with my previously expressed opinion, the claimant appears to have recovered from any injury to the right shoulder on 30 December 2021, at least until the setback when playing with his son in the park on or about 7 June 2022 wherein he sustained a frank dislocation of the subject shoulder.
•       However, on review there does seem to be an element of doubt about the extent of the recovery, indeed as to whether the initial injury constituted a significant adverse impact upon the inherent stability of his shoulder, noting that [Mr Lyons] had confirmed with me that at the time he had not been aware of any subluxation, dislocation nor subsequent ongoing instability until the latter incident.
•       As always, the accuracy of recall of any given individual varies widely.
In my opinion, a possible indication as to whether the index incident
compromised the inherent stability of his shoulder may lie within his recorded statement of 6 January 2022, inter alia, ‘as I hit the ground I felt my shoulder giving way and felt a crunch’, which does suggest possible instability.
•       However, given his past extensive history of recurrent shoulder dislocations, I would have expected him to have recognised an episode of instability had it occurred.
•       Therefore, the answer to the question lies within the precise details of the event; and thereafter are somewhat at variance.”
(As written).
Dr Cairns then allowed that there was a possibility “as distinct from the probability,” that the later dislocations may have resulted from the subject injury. He said:
“The answer is based on the conundrum as to whether the incident of 30 December 2021 involved, probably at worst, subluxation of the glenohumeral joint.”
Dr Cairns also conceded that the subject injury may have “materially contributed” to the need for surgery. Dr Cairns observed that the first dislocation “may well have been solely precipitated” when Mr Lyons was playing with his son, or in the alternative the dislocations had been predisposed to by the subject injury.
In considering the report of Dr Endrey-Walder Dr Cairns said he would have “no argument” with the opinion that the fact that Mr Lyons remained unfit for full duties for quite some weeks after the subject injury would attest to a significant injury. Dr Cairns stated however that Dr Endrey-Walder’s opinion that the subject injury was significant enough to be the main contributing factor to the subsequent subluxation/dislocations of the shoulder was “open to question, notwithstanding the acknowledged possibility.”
In his report of 7 February 2023, Dr Cairns reviewed his decision further.[9] He was asked whether he considered the subject injury made Mr Lyons’ shoulder become unstable such that it resulted in the subsequent dislocation. Dr Cairns responded that he had canvassed the various uncertainties in relation to this issue in his prior report. He suggested perhaps getting radiologists to look at the comparative imaging taken after the subject injury, and after the first subluxation/dislocation.
[9] ALD dated 15 February 2023 at page 7.
Dr Cairns was also asked whether Mr Lyons would have suffered his dislocations if he had not fallen in the park was playing with his son. Dr Cairns responded that the question required “an element of speculation.”

CONTEMPORANEOUS MATERIAL

Following the accident. Mr Lyons immediately recorded its details to his employer.[10] The form reported a shoulder injury described as follows:
“Whilst undertaking fox baiting operations on the canal boat I had disembarked from the front of the vessel and caught my foot on the anchor rope causing me to fell [sic] forward onto the sand of the vessel using my right arm to brace for impact. As I hit the ground I felt my shoulder giving way and felt a crunch.”
[10] ARD page 6. The date on the printed form was 6 January 2022, but it stated that Mr Lyons had reported to Mr Hetherington at 11:39 AM on 30 December 2021, the accident having occurred at 8:30 AM.
The responsible officer was named as Thomas Hetherington.
Mr Lyons attended the Maroubra Medical Centre, the notes of which were lodged.[11]
[11] ARD page 54.
Mr Lyons was there attended by Dr Christopher Han, but was also seen by Mr Yohan Ko, physiotherapist.

Submissions
Mr Baker

Mr Baker relied primarily on the contents of the clinical notes in attempting to support the dispute. His submissions were designed to establish that the subject claim for surgery had been caused by the dislocation of Mr Lyons’ shoulder when he was playing with his son in either February or March 2022, and thus, to use the language of the dispute notice, “broke the chain of causation” between the subject injury and the accepted need for surgery.
Mr Baker made reference to many entries in the notes. His submissions have been recorded and it is not necessary to refer to them in detail. He noted that there had been a steady improvement in Mr Lyons’ capacity to do light duties from 5 January 2022 when a certificate had issued stating that he had a capacity for some type of work with a lifting restriction of 5kg. This was gradually increased until on 10 March 2022 the lifting tolerance had been increased to 16kg. It was during the currency of this certificate that the dislocation occurred whilst Mr Lyons was playing with his son, Mr Baker noted, as the entry of 29 March 2022 recorded that event. Mr Baker referred to the entry by Dr Han of 7 February 2022 that Mr Lyons’ shoulder pain was “better” with the level of discomfort improved. The entry also noted under “physio” that the case might be closed. Mr Baker noted that the physiotherapist entry of 3 March 2022 also recorded an improvement in the right shoulder.
Mr Baker noted that Dr Han had caused imaging to be taken after both 30 December 2021 and 29 March 2022, the former being an X-ray and ultrasound of 7 January 2022, and the latter an X-ray on 30 March 2022. Mr Baker, noting that the latter X-ray demonstrated a Hill-Sachs deformity of the humeral head and other pathology consistent with a recent dislocation, submitted that the imaging following the subject injury showed only mild pain on abduction with bursal impingement at 90°, although with a full range of movement. A full range of motion “with no pain” was also noted by the physiotherapist Mr Ko on 18 January 2022, Mr Baker observed.
It was incongruous with the applicant’s case, Mr Baker submitted, that the subject injury did not dislocate Mr Lyons shoulder, and indeed the contemporaneous report of injury mentioned that Mr Lyons had fallen onto the sand using his right arm to brace for impact. Mr Baker submitted accordingly that Mr Lyons description in his statement of the subject injury causing “the initial dislocation” could not be accepted. It was made with the benefit of hindsight following the later dislocations.
It was during the currency of the WorkCover certificate of 10 March 2022 that the dislocation occurred whilst Mr Lyons was playing with his son, Mr Baker noted, as the entry of 29 March 2022 recorded that event.
Mr Baker referred to the note of 18 January 2022 when Dr Han first recorded the subject injury, observing that Dr Han noted by 7 February 2022 that Mr Lyons had said in a telephone consultation that he was “much better,” and had not at that stage seen “physio.” Mr Baker referred to the entry by Dr Han of 7 February 2022 that Mr Lyons’ shoulder pain was “better” with the level of discomfort improved. The entry also noted under “physio” that the case might be closed. Mr Baker noted that the physiotherapist, Mr Ko, on 3 March 2022 also recorded an improvement in the right shoulder.
Dr Cairns’ opinion was originally based on an assumption that Mr Lyons had recovered from the subject injury prior to the dislocation of 29 March 2022, Mr Baker said. When Dr Cairns was made aware of the contemporaneous material, although he spoke of a possibility that the subject injury might have been significant enough to have destabilised the shoulder, Mr Baker argued that nonetheless Dr Cairns adhered to his opinion that it was probable that the subject injury was unrelated to the subsequent dislocations. Mr Lyons could not demonstrate that the need for surgery arose from the subject incident.

Mr Moffet

Mr Moffet made oral submissions, which there had been not enough time left for him to complete. Accordingly written submissions were also made, and Mr Baker’s response was also in writing.
It is not necessary to traverse Mr Moffet’s oral or written submissions, as I have largely accepted them and incorporated them in my decision.

Mr Baker in response

In his written submissions in reply, Mr Baker submitted that the factual circumstances did not admit of any causative link between the subject injury and the subsequent shoulder dislocations.
Mr Moffet had relied in his written submissions on a decision by Member Paul Sweeney in Carr v State of New South Wales (Mid North Coast Local Health District),[12] in which the learned Member had discussed the Court of Appeal decision of Secretary, New South Wales Department of Education v Johnson.[13] Johnson in turn had applied the principles regarding causation as discussed in The State Government Insurance Commission v Oakley.[14]
[12] [2021] NSWPIC 195.
[13] [2019] NSWCA 321.
[14] (1990) Aust Torts Rep 81-003.
There were three principles that applied when considering the question of causation vis-à-vis the potential effect of a subsequent injury on an earlier injury. Mr Baker submitted that the facts showed that the applicant could not establish that the subject injury created a causal relationship with the dislocation of 29 March 2022. Applying the well-known test in Kooragang Cement Pty Ltd v Bates[15] a common sense evaluation of the causal chain would show that either the dislocation would have occurred in any event, or that there was no element of aggravation of the earlier injury in the dislocation – which were the applicable two tests discussed in Oakley and Johnson.
[15] (1994) 35 NSWLR 452.
Mr Baker repeated his oral submissions as to how the evidence established these propositions.

DISCUSSION

In Johnson, Emmett A JA referred to the three principles from Oakley at [70]:
“•      Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
·         Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
·         Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
As can be seen from my comments regarding the applicant’s submissions, I am satisfied that there is a causal connection between Mr Lyons’ injury on 30 December 2021 and the unchallenged need for surgery to his right shoulder.
There are two factual inaccuracies that need to be addressed at the outset. Mr Lyons stated that the dislocation of his shoulder whilst playing with his son occurred in February 2022, and some commentators also used that date. I am satisfied that the actual date was 29 March 2022, as recorded in Dr Han’s notes. Nothing turns on that discrepancy, and indeed no submission was made regarding it.
Secondly, at [35] of his statement, Mr Lyons described the subject injury as “the initial dislocation that happened at work.” Mr Baker stressed that this was not supported by the contemporaneous evidence. Indeed, he submitted that the clinical notes of Dr Han and Mr Koo demonstrated that Mr Lyons had no instability in his shoulder during treatment after the subject injury, and that he had a full, pain free range of motion prior to the dislocation on 29 March 2022.
Whilst Mr Baker’s submission that there had been no dislocation on 30 December 2021 must be accepted, I do not find Mr Lyons’ expression at [35] to be determinative. When describing the outcome of his injury on that date at [16] of his statement he did not make that allegation. He said that he had trouble moving the arm and that he had a “crunching sensation” in his right shoulder.
This was confirmed also by the record of injury completed the same day which described the mechanics of the accident in some detail. Mr Lyons was recorded as saying that his foot caught on the anchor rope as he was disembarking the vessel, causing him to fall forward onto the sand. The record stated that Mr Lyons used his right arm to brace for impact (which was emphasised by Mr Baker in his submissions) and that, as Mr Lyons hit the ground, he felt his “shoulder giving way and felt a crunch” (which Mr Baker did not emphasise).
Moreover, the entry in Dr Han’s notes on 5 January 2022 made no such observation, simply noting that the right shoulder was “most painful.”[16] The term “dislocation” used in [35] of Mr Lyons’ statement I accordingly find to have been used inadvertently.
[16] ARD page 56.
Mr Baker relied on the entries in the clinical notes of the Maroubra Medical Centre to disprove the assertion that the subject injury was connected, as indicated. He submitted that the entries of 18 January 2022,[17] 20 January 2022,[18] 2 February 2022,[19] 22 February 2022 and 3 March 2022,[20] 8 March 2022[21] and 15 March 2022[22] all showed very little pathology, and all recorded:
“R shoulder AROM full ROM with no pain”
[17] ARD page 57 (Mr Ko).
[18] AED page 57 (Mr Ko).
[19] ARD page 58 (Mr Ko).
[20] ARD page 59 (Mr Ko).
[21] ARD page 60 (Mr Ko).
[22] ARD page 61 (Mr Ko).
The entries showed a steady improvement in Mr Lyons’ shoulder problems until the 29 March 2022 dislocation. Dr Han was recorded as noting that Mr Lyon was “much better” on 12 January 2022,[23] “better” on 7 February 2022,[24] and that on 10 March 2022 Mr Lyons was:[25]
“well
Progressing
Patient keen to close case.”
[23] ARD page 57.
[24] ARD page 58.
[25] ARD pages 60-61.
Whilst of themselves these entries demonstrated that the problem in Mr Lyons shoulder was improving, the same entries from Mr Ko recorded positive impingement tests and empty can tests. Notwithstanding the optimism expressed in the entries, Mr Lyons was nonetheless continually throughout the relevant period certified as being fit for light duties. The WorkCover certificates issued by Dr Han referred to by Mr Baker as indicating an improvement in Mr Lyons lifting restrictions were more comprehensive. They also stated that pushing/pulling ability should be “as tolerated, minimal usage on r shoulder,” and that in the case of the certificates dated 5 January 2022 and 12 January 2022 Mr Lyons should “avoid aggravating factors on R shoulder, minimize R shoulder usage.” In the certificates of 7 February 2022 and 13 March 2022, they said that Mr Lyons should “avoid aggravating factors on R shoulder, R shoulder usage at discretion.”
Thus, for example, although Mr Lyons was noted on 3 March 2022 to be doing welding with only occasional pain on the right shoulder, he was nonetheless noted to be having problems holding his child and working above shoulder level.[26]
[26] ARD page 59 (Mr Ko).
It is also clear that Mr Lyons himself was keen to accelerate the process of being certified as fully fit. The entry by Mr Ko of 8 March 2022 stated:
“also wants to close the case because fire training is coming up
If he misses fire training he will miss doing extra fire related work during peak season // this requires he is fully fit to work.”
It is relevant that, notwithstanding that motivation, Dr Han continued to certify the restrictions discussed above.
I found the reports of Dr Harper, Dr Endrey-Walder and Dr Soo to be consistent to the cause of Mr Lyons’ need for surgery to his right shoulder. It was not suggested by any of the above doctors that Mr Lyons had dislocated his shoulder at the time of the subject accident. Their view, expressed in different ways, was that the subject injury was of such significance that it caused an instability in the right shoulder, which had been a material factor in the subsequent dislocations.
Dr Soo erroneously found that Mr Lyons continued to play rugby league following the fracture of his scapular in 2021, but such a misstatement is not relevant to the issue. It was not suggested that the fracture to the scapula on that occasion had any contribution to Mr Lyons’ shoulder problem, and he was able to return to his preinjury duties.
The respondent’s denial of liability purported to be based on the reports of Dr Cairns. Dr Cairns took a careful and thorough history from Mr Lyons, once Dr Cairns had the documentation which included the clinical notes from the Maroubra Medical Centre and the record of injury made on 30 December 2021.
Whilst in his first report Dr Cairns advised that Mr Lyons had simply suffered a soft tissue strain in the subject injury and had effected a satisfactory recovery (thus finding that there was no causative link between the dislocation of 29 March 2022), his view changed when he consulted that extra material. He discussed “in some depth” the circumstances of the subject injury and, significantly, found Mr Lyons to be “affable and entirely credible.” This led Dr Cairns to concede that there was an element of doubt about the extent of the recovery and Dr Cairns quite fairly allowed that whilst Mr Lyons’ recall, “as of any given individual” might have varied, Dr Cairns accepted that the contemporaneous record of injury did suggest possible instability.
Dr Cairns’ reason for expressing some doubt about that possibility was that he would have expected Mr Lyons to have recognised an episode of instability, had it occurred, because, Dr Cairns said, Mr Lyons had a “past extensive history of recurrent shoulder dislocations.”
His opinion, as he plainly stated, depended on the answer to the “conundrum” as to whether the subject injury involved “probably at worst,” a subluxation of the glenohumeral joint.
Dr Cairns again quite fairly accepted Dr Endrey-Walder’s view that the continuing partial incapacity for “quite some weeks” would attest to a significant injury. Dr Cairns’ final position was thus somewhat ambivalent, and he attempted to part company with Dr Endrey-Walder by saying that whether the subject injury was significant enough to be the main contributing factor to the subsequent dislocations was “open to question.”
Leaving aside for the moment the misstatement of the legal effect of the facts in this case, Dr Cairns’ rationale that he would have expected Mr Lyons to recognise an episode of instability because of Mr Lyons’ past extensive history of recurrent shoulder problems is, with respect, somewhat difficult to comprehend.
Mr Lyons’ one experience of instability was when he was still in high school some 12 years earlier, from which he completely recovered. His experience of instability (and subluxation) did not commence until 29 March 2022.
It is difficult to assess Dr Cairns’ meaning with regard to the subject injury, as Mr Lyons’ evidence was that when he hit the ground with his extended right arm he felt his shoulder give way and he felt a crunch. A commonsense view of that experience, confirmed as it was by the contemporaneous record of injury, would be that Mr Lyons did indeed experience instability, but there was no evidence that he had a past extensive history of the same.
The subsequent treatment which has been outlined, confirmed that the sequelae of the injury was significant enough to keep him away from pre-injury duties into March 2022 when he suffered the first of his dislocations, for which the proposed surgery is designed to stabilise.
In the circumstances I am satisfied that the possibility conceded by Dr Cairns that the subject injury was likely to be a material factor in the subsequent dislocations was, on his own evidence, probably such a material factor.
In any event, notwithstanding the detailed submissions by Mr Baker, the evidence of Mr Lyons himself and the three doctors I have mentioned, Dr Harper, Dr Endrey-Walder and Dr Soo satisfy me that the subject injury is a material factor in the subsequent development by Mr Lyons of the dislocations in his right shoulder. Even though Mr Baker argued that Dr Cairns’ opinion did not rise above the possible, were that the case (which I find against), the evidence as a whole establishes causation on a balance of probabilities.[27]
[27] See discussion in Sydney South Weat Area Health Service v Stamoulis [2009] NSWCA 153.
Finally, Dr Cairns’ and Dr Endrey-Walder’s apprehension of the legal implications of the opinion they were asked to provide was, with respect, incorrect. Whether or not the subject injury was the main contributing factor to the subsequent dislocations was not the appropriate legal test. The test was whether Mr Lyons’ employment was, not the main contributing factor, but a substantial contributing factor to the injury he suffered on 30 December 2021. The injury was pleaded as a personal injury to which s 9A of the 1987 Act applied.
The correct legal tests are those outlined above from Oakley. In Mr Lyons’ case his later dislocation injuries would not have occurred had his right shoulder not been in the physical condition caused by the subject injury. The subsequent dislocations should therefore be treated as having a causal connection with the subject injury.
Accordingly there will be an award for the applicant.

SUMMARY

The respondent will meet the costs of and associated with the right shoulder arthroscopy and open Latarjet stabilisation with coracoid bone transfer surgery as recommended by Dr Wade Harper.

[2023] NSWPIC 292

20 June 2023