Meredith v Tamworth Regional Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Meredith v Tamworth Regional Council [2024] NSWPIC 541
APPLICANT:	Mark Meredith
RESPONDENT:	Tamworth Regional Council
MEMBER:	Adam Halstead
DATE OF DECISION:	1 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted injury to right shoulder, right elbow and cervical spine; whether left shoulder is a consequential condition; Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Ltd, Nguyen v Cosmopolitan Homes and Drca v KAB Seating Systems Pty Ltd considered; Held – applicant sustained consequential condition to the left shoulder resulting from overuse due to injury restriction in right shoulder; remitted to the President for referral to a Medical Assessor to determine permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. It is undisputed the applicant suffered injury to his cervical spine, right shoulder and right elbow in the course of his employment with the respondent on 20 January 2020. 2. The applicant suffered a consequential condition to his left shoulder as a result of injury sustained on 20 January 2020. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder and elbow), left upper extremity (shoulder) and cervical spine arising from injury on 20 January 2020. 4. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the respondent’s Reply and attached documents; (c) the applicant’s Application to Admit Late Documents dated 14 August 2024; (d) the respondent’s Application to Admit Late Documents of 5 September 2024 annexing the report of Dr Paul Miniter dated 17 July 2024, and (e) this Certificate of Determination with reasons.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Mark Meredith, claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the Act). These proceedings are about whether the applicant has suffered a consequential condition to his left shoulder as a result of injury he sustained on 20 January 2020 when he fell while working for the respondent, Tamworth Regional Council. It is uncontentious that he injured his right shoulder, right elbow and cervical spine following the fall. The applicant’s claim for lump sum compensation refers to all injuries, which is disputed by the respondent in relation to any left shoulder condition.
An Application to Resolve a Dispute (ARD) related to the claim was filed by the applicant in the Personal Injury Commission (Commission) on 14 June 2024.

ISSUE FOR DETERMINATION

The parties request referral of the matter to a Medical Assessor for assessment of permanent impairment after the Commission determines whether the applicant suffered consequential injury to his left shoulder as a result of injury received on 20 January 2020.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was before the Commission for conciliation and an arbitration hearing on
4 September 2024. Mr McManamey of counsel, instructed by Mr Glavan solicitor, appeared for the applicant, who was also present. Mr Brown of counsel appeared for the respondent, instructed by Mr van der Hout solicitor.
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 endeavoured to bring the parties to the dispute to an acceptable settlement and am satisfied that the parties have had sufficient opportunity to explore settlement. 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)    Reply and attachments (Reply), and
(c)    Application to Admit Late Documents made by the applicant dated 14 August 2024 with attachments that was admitted without objection at the arbitration hearing.

Oral evidence

Neither party made application to cross-examine any witness or call oral evidence.

Applicant’s evidence

Workplace incident

In his statement dated 16 April 2024, made for these proceedings, the applicant recalled that on 20 January 2020:[1]
“I was inspecting the job site where I was working and tripped on debris on the job site, which had not been removed by the previous Tamworth Regional Council Crew. I fell down an embankment approximately 6 - 8 foot and landed heavily on my head and my right arm. I felt pain in my right shoulder and elbow, and my neck and head.”
[1] ARD p 4 at para 11.
It is undisputed the applicant sustained injury to his right shoulder, right elbow and cervical spine from that incident.

Left shoulder

The applicant’s evidence in relation to his left shoulder is that:[2]
“29. In about mid 2022 I started to notice pain and stiffness in my left shoulder. Due to my injured right shoulder and arm I avoided doing most tasks with my right arm. Each time I used my right arm for any day to day task I would experience increased pain throughout my right arm and shoulder. In order to avoid the increased levels of pain I avoided doing anything I could with my right arm. If I had no choice but to use my right arm I would, but where possible I tried to do anything I could with my left arm.
30. I relied on my left arm to lift things, to move things around, and to carry things like shopping bags. Over time I started to get niggling pains in my left shoulder. Over time I noticed that my left shoulder would feel very tired at the end of the day.
31. Gradually the pain in my left shoulder started to increase and get worse.
32. I reported my left shoulder pain to my GP and also to my physiotherapist. My GP sent me to have an ultrasound of left shoulder and as far as I understand it the ultrasound report said I suffered a tear to my rotor cuff from overuse or injury.
33. My physiotherapist performed physiotherapy on my left shoulder as well as my right shoulder and neck when I attended physio sessions. My physio also recommended I do exercises at home to strengthen both shoulders.”
[2] ibid.

Ms Alicia Seery, physiotherapist

In a report to the applicant’s general practitioner (GP) of 22 December 2022, the physiotherapist treating the applicant, Ms Alicia Seery, stated:[3]
“It looks like Mark has developed a rotator cuff tendinopathy in his left shoulder. I have educated Mark that completing his exercises on both shoulder [sic] will help to settle the pain in his left shoulder. I have also educated him to keep his left shoulder pain to less than 5/10 pain.”
[3] ARD, p 74.
Ms Seery provided a further report to the GP following a consultation with the applicant on
20 January 2023 when she noted:[4]
“He also reports he has had left shoulder pain over the last 6 months which over the last month has become a lot worse. Mark tried 2 days back at work in the community garden. He reports he couldn't complete a lot of tasks and the tasks he did complete significantly increased his pain by that afternoon.
…
His left shoulder range of movement is 120 degrees forward flexion, 80 degrees abduction and internal rotation hand to L5. It looks like Mark has a rotator cuff tendinopathy in his left shoulder. He has full passive range of movement of his shoulder so it is unlikely that he has adhesive capsulitis.
…
We also discussed his left shoulder. I have educated Mark at this stage if he improves the strengthen in his shoulder without overloading it the pain caused by the tendinopathy should settle. He was happy with this.”
[4] ARD, p 78.

Dr Matthew Chan, treating general practitioner

In his 2 May 2024 response to a request for information about the applicant’s left shoulder, Dr Matthew Chan, the applicant’s treating GP, reported that related consultations occurred on 13 April 2023 and 9 June 2023.[5] During the first appointment the applicant “reported that he had been experiencing pain in his left shoulder for a little longer than a month” that he “was unable to ascertain which particular movements or patterns elicited more pain” and that “often lifting the left arm overhead alleviated the pain”. Although Dr Chan did not conduct an examination of the applicant on that occasion, an ultrasound of his left shoulder was arranged.
[5] ARD, p 32.
The ultrasound results were discussed during the second consultation on 9 June 2023 when the identified subacromial bursitis with impingement was explained. Dr Chan then referred the applicant for an ultrasound guided corticosteroid injection into the left subacromial bursa.
Dr Chan also provided his opinion about the nature of the applicant’s left shoulder condition in the 2 May 2024 report wherein he considered the applicant:[6]
“…sustained a significant injury to his right shoulder, and cervical spine on 20/01/2020, both requiring surgical management and substantial physical rehabilitation. To date, he still remains significantly under pre-injury capacity.
It is reasonable to deduce that as a result, especially for the retracted[7] period of recovery, that Mark would have overcompensated use of his left shoulder and arm, for activities of daily living. Along with the gradual onset of left shoulder pain, with no specific reported instigating injury, it is my opinion that the injuries sustained on the 20/01/2020 substantially contributed to the pain and symptoms in his left shoulder.”
[6] ARD, pp 32-33.
[7] Presumably should be “protracted”

Dr Janet Gray, radiologist

The ultrasound results cited by Dr Chan were in the report of Dr Janet Gray, radiologist, dated 12 May 2023, that refers to the applicant’s left shoulder and relevantly states:[8]
“Subacromial bursa is thickened to 1.5 mm and there is pain with abduction. There is some evidence of bunching as well. This is consistent with bursitis and impingement. CONCLUSION: Subacromial bursitis and impingement”
[8] ARD, p 100.

Professor Youssef Ghabrial, orthopaedic surgeon

The applicant qualified Professor Youssef Ghabrial, orthopaedic surgeon, to assess permanent impairment for which a report dated 9 October 2023 was provided. In relation to the applicant’s left shoulder, Professor Ghabrial notes in the report that the applicant “developed pain in his left shoulder consequential to the pain in the right shoulder injury”.[9] In his opinion the applicant “developed a similar problem in the left shoulder consistent with probably a partial tear of the rotator cuff”, making a comparison with the applicant’s right side rotator cuff tear and a tear of the long head of the biceps.[10] Professor Ghabrial noted there had been a “re-rupture of the long head of the biceps” and there was continued right shoulder “pain, stiffness and weakness”.[11] While an impairment assessment of the left shoulder was provided in the report, Professor Ghabrial did not express an opinion as to the likely cause of the condition other than the general observation it was “consequential to the pain in the right shoulder injury”.
[9] ARD, p 28.
[10] ARD, p 30.
[11] ARD, p 30.

Associate Professor Paul Miniter, orthopaedic surgeon

Associate Professor Paul Miniter, orthopaedic surgeon, was qualified by the respondent to examine and report on the applicant. Three reports[12] were prepared by Associate Professor Miniter, those of 13 May 2021, 5 July 2021 and 31 January 2024. Although it was not specifically examined at the time (given it was not yet identified as problematic), Associate Professor Miniter refers to the applicant’s left shoulder in the 13 May 2021 report for comparative purposes with the right shoulder:[13]
“… There is wasting of the parascapular musculature at the right shoulder. The power of abduction and therefore power of supraspinatus is reduced on the right and normal on the left and the power of infraspinatus is reduced on the right and also reduced on the left. There are no features of capsulitis. Subscapularis appears to be clinically intact, and the biceps tendon is non-tender.”
[12] But also see paragraph 53 following regarding a further report.
[13] Reply, p 34.
Associate Professor Miniter’s report of 31 January 2024 specifically addresses the applicant’s left shoulder, wherein he:[14]
“…could see no evidence of injury to the left shoulder or right wrist associated with the incident on 20/01/2020. You will note that as far as I could determine, he has no investigations at the left shoulder, nor at the right wrist, and that both of these areas are normal to examination.
…
There is no evidence of consequential injury to the left shoulder. Indeed, the fact that he has symmetrical range of motion of both shoulders suggests a degree of abnormal illness behaviour.”
[14] Reply, p 43 at (d) and (e).
However, that report also refers to Associate Professor Miniter as having reviewed an ultrasound for the applicant’s left shoulder dated 12 May 2023,[15] which is presumably the report prepared by Dr Gray of that date (there is no evidence of another ultrasound).

SUBMISSIONS

[15] Reply, p 40 at (l).

Applicant’s submissions

The applicant contends his left shoulder condition results from injury he received following the incident on 20 January 2020. Specifically, that the nature of his right shoulder injury required greater reliance and use of his left arm for day-to-day living in circumstances where he would have otherwise used his right arm, but for the injury on that side, given he is right hand dominant.[16]
[16] Reply, p 71.
The applicant first reported problems with his left shoulder on 16 December 2022 during a consultation with his treating physiotherapist, Ms Seery. He had been using his left side to compensate for the right and Ms Seery made a preliminary diagnosis of tendinopathy in the left shoulder. There is evidence of a history of less reliance on use of the applicant’s right arm in the report of Associate Professor Miniter dated 13 May 2021 wherein muscle wasting of the right shoulder was noted.
On 12 May 2023, Dr Gray reported left shoulder pathology for the applicant of subacromial bursitis and impingement and Dr Chan has established a causal link between the applicant’s right shoulder injury and a consequential left shoulder condition. He considered the applicant would have overcompensated using his left shoulder and arm because of the significant nature of the right-side injury. As there was no specific “instigating injury” to the left shoulder and given the gradual onset of the left shoulder condition, the right side injury sustained on 20 January 2020 was the cause.
The applicant argues that Associate Professor Miniter’s report of 31 January 2024 is flawed because he did not consider medical investigation evidence that was available to him in the form of the 12 May 2023 ultrasound report. Given that failure, his findings and opinion in relation to the applicant’s left shoulder should be given no weight in the proceedings.

Respondent’s submissions

The applicant must establish there was increased loading and frequency of use of his left shoulder, that there are symptoms of a left shoulder condition and that the increased loading and frequency of use caused the symptoms. The applicant’s statement at paragraph 30 describes the totality of his evidence about how overloading of the left shoulder is said to have occurred.[17] It is essentially confined to occasionally carrying shopping bags.
[17] ARD, p 6.
Clinical notes from the GP treating the applicant include reference to continued improvements in the right shoulder condition between 26 October 2021 to 15 March 2022.[18] By December 2022 there had been improvements to the extent the applicant had sufficient capacity to start a gardening job. The improvement and increased function of the right shoulder would not require additional use of the left side. It could also be assumed that there had been a general reduction in the loading of the applicant’s left shoulder given he was no longer working as a grader driver for the respondent at that time, which had previously been a physically demanding role.
[18] ARD, pp 102-109, which record several consultations between those dates that refer to the right shoulder.
The treating GP clinical notes record the applicant’s first complaint of left shoulder pain on
[19] ARD, p 129.
[20] ARD, p 131.
16 March 2023 to Dr Nguyen and that it comes and goes at night.[19] The applicant did not relate the problem to any loading when he consulted with Dr Chan and they discussed it for the first time on 13 April 2023 by which time it was reported as problematic for a bit longer than a month.[20]
The opinion of Dr Chan on causation of the left shoulder condition in the report of
2 May 2024 lacks sufficient reasoning on causation and the deductive reasoning process is inadequate and, in any case, not appropriate given there are multiple other possible causes that were not considered by him. It is not for the respondent to establish alternative theses as to other possible causes. In summary, Dr Chan’s opinion could not be accepted as it does not contain a proper reasoning process and is not supported by records.
The report of Professor Ghabrial does not assist the applicant because it does not contain any meaningful history, reasoning or opinion as to causation of the left shoulder condition. Similarly, Ms Seery does not provide any opinion on causation.
The applicant has not discharged the onus to establish a causal link on the evidence and accordingly there should be an award in favour of the respondent on the left shoulder issue.

CONSIDERATION AND FINDINGS

The applicant bears the onus of proving his left shoulder condition is consequential to an accepted injury. The relevant test for causation was stated by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (Kooragang),[21] which is that the Commission must apply commonsense to determine causation.
[21] Kooragang Cement Pty Ltd v Bates (1994) 10 NSW CCR 796.
In Kumar v Royal Comfort Bedding Pty Ltd[22] (Kumar), Roche DP found that it is unnecessary for an applicant to satisfy a requirement of having suffered injury for the purposes of s 4 of the Act for a consequential condition to be found. This means the applicant is not required to satisfy the definition of “injury” as set out in s 4 of the Act.
[22] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSW WCCPD 8.
In Moon v Conmah Pty Limited[23] (Moon), there was an agreed compensable injury to the right shoulder which was claimed to result in a consequential condition to the left shoulder. Roche DP set out the requirements to establish a consequential condition: [24]
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder in the meaning of that term in section 4 of the 1987 Act. All he needs is to establish that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Kumar, they asked the wrong question.”
[23] Moon v Conmah Pty Limited [2009] NSWWCCPD 134.
[24] Moon at 45.
It is also unnecessary for specific pathology to be identified when finding a consequential condition exists,[25] however there must be an unbroken chain of causation from the accepted injury to the development of the consequential condition. The applicant is not required to prove injury to his left shoulder in this case, only demonstrate that his left shoulder symptoms arise from his accepted injury, that is, the right shoulder.
[25] Kumar at 55.
According to Roche DP in Drca v KAB Seating Systems Pty Ltd[26] (Drca), for an applicant to succeed in a claim for compensation, the Commission need be satisfied that on the balance of probabilities of the facts that establish the claim. In relation to the applicant’s claim, this means he needs to establish that it was more probable than not that the left shoulder condition resulted from the accepted right shoulder injury. I am required to have a ‘feeling of actual persuasion’ the applicant has met this onus: Nguyen v Cosmopolitan Homes.[27]
[26] Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10.
[27] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.

The respondent contends the required onus has not been discharged, including with respect to the causal link between the left shoulder condition and right shoulder injury.
The medical evidence of Dr Chan, Professor Ghabrial, Dr Gray and Ms Seery is that the applicant suffers a left shoulder condition. It seems likely on the balance of that evidence the condition, at least of 12 May 2023, was subacromial bursitis and impingement, although it is unnecessary for the Commission to determine whether that diagnosis is confirmed.
In his 31 January 2024 report, Associate Professor Miniter was unable to find “evidence of injury to the left shoulder”[28] and found “no evidence of consequential injury to the left shoulder”.[29] As was highlighted by the applicant however, Associate Professor Miniter failed to consider the content of the ultrasound report of Dr Gray dated 12 May 2023 that was plainly in his possession at the time of preparing the 31 January 2024 report (given his statement therein that it had been reviewed). I accept the applicant’s submission about Associate Professor Miniter’s report in relation to the weight it should be given. Associate Professor Miniter based his opinion on there being “no investigations at the left shoulder”, which is clearly wrong. It seems he overlooked the highly relevant ultrasound report of
[28] Reply, p 43 at (d).
[29] Reply, p43 at (e).
12 May 2023 which would have been critical to providing a fully informed opinion on the true state of the applicant’s left shoulder. In circumstances where a pertinent investigation report was available and not considered, the finding of Associate Professor Miniter in relation to the applicant’s left shoulder can be given no weight.
The balance of the other available medical investigations and opinion is that the applicant suffers a left shoulder condition. The condition became evident to him sometime during 2022 and was causing pain by late that year to the extent he sought physiotherapy assistance. The first available record of the condition is in Ms Seery’s report of 16 December 2022.[30] I am satisfied the applicant developed a left shoulder condition.
[30] ARD, p 74.
The applicant argues that additional loading on, and use of, his left arm and shoulder was responsible for its deterioration and the left shoulder condition. His evidence is that he avoided use of his injured right arm and shoulder instead preferring use of his left arm and shoulder where possible. The left side was used for lifting, carrying and moving objects. He noticed pain and stiffness in the left shoulder from sometime in mid-2022.[31]
[31] ARD, p 6 at 29 and 30.
The respondent referred to the applicant’s evidence of overloading as being confined to carrying shopping bags, which would likely occur only occasionally given the expected usual weekly frequency of shopping trips. Such infrequent loading could not reasonably be responsible for a shoulder condition according to the respondent.
It is correct that carrying shopping bags is evidence given by the applicant in reference to when he would “carry things” using his left arm and shoulder. However, the description of that task by the applicant is clearly offered as an example of one such carrying task; the applicant would “carry things like shopping bags”.[32] It is not intended as evidence excluding the applicant carrying other items when undertaking “any day to day task” as he would have otherwise done with his right arm and shoulder previously. The applicant’s evidence does not limit use of his left arm and shoulder to carrying shopping bags.
[32] ARD, p 6 at 30.
I am satisfied the applicant’s evidence establishes that in most instances of daily living where he would have used his right arm and shoulder to undertake some task, if it were not for the injury suffered to that side, he used his left arm and shoulder. Although it is not specified in the statement, it can be reasonably inferred from his evidence that “[d]ue to my injured right shoulder and arm I avoided doing most tasks with my right arm”, at least some left arm preferencing commenced immediately or soon after he sustained the right-side injury on
20 January 2020. Around two and a half years later, being mid-2022 according to his evidence, there was “pain and stiffness in [his] left shoulder”. The problem accrued to the point that it was made known to Ms Seery in December that year.
The respondent highlights GP clinical notes that record the applicant’s right shoulder improving from 26 October 2021 to 15 March 2022 and that he commenced a gardening job in December 2022. There are references to the applicant’s left “shoulder on the mend”,[33] “improving”[34] and “going well”[35]. Based on that improvement in the right shoulder, the Commission could not be persuaded there was overloading of the left shoulder, according to the respondent, because presumably the right side would have again been available.
[33] ARD, p 104 in the note for 10 December 2021.
[34] ARD, p 104 in the note for 21 December 2021.
[35] ARD, pp 108 and 109 being notes for 15 December 2022 and 15 March 2022.
I consider those notes rather to support the applicant’s contention regarding his increased use of the left arm and shoulder. That is, by using his left arm and shoulder in preference to the right, the right side was effectively rested to the extent that the recorded improvements became possible. This has some indirect support in the report of Associate Professor Miniter dated 13 May 2021[36] wherein right shoulder muscle wasting was noted, which is an effect that might be expected if that side was not being used as previously. The implication being that the left side was being used instead. The reports of an improving right shoulder are precisely what might be expected if the left side was in greater use.
[36] Reply, p 34.
I accept the respondent’s submission about the reports of Professor Ghabrial and Ms Seery being insufficient for any determination to be made on the issue of causation of the applicant’s left shoulder condition. Although Professor Ghabrial does refer to “pain in his left shoulder consequential to the pain in the right shoulder injury”, no explanation for that statement has been provided.
In his report of 2 May 2024 Dr Chan considered that the cause of the applicant’s left shoulder condition “would have” been as overcompensation for the right-side shoulder injury. In essence, Dr Chan formed the view that in the absence of some specific event affecting the left shoulder, its gradual onset and the nature of the right shoulder injury and associated restriction, the overcompensated use of the left shoulder was the consequential cause of the left shoulder condition.
The respondent expressed considerable doubt about the sufficiency of the reasoning process contained in Dr Chan’s opinion that was also said to be unsupported by clinical records. His deductive reasoning was assessed by the respondent as inadequate since the applicant’s left shoulder condition could have many causes that were not considered by
Dr Chan in the report. On those bases it was submitted the Commission could not be satisfied the opinion of Dr Chan establishes a causal link between the right shoulder injury and any left shoulder condition claimed by the applicant.
The reasoning process outlined in Dr Chan’s report about the cause of the applicant’s left shoulder condition need only be adequate to explain his conclusion. It is not required to be overly comprehensive or consider all possibilities. It should provide a proper basis for the opinion. It is accepted that Dr Chan’s report is brief. However, its content is directly on point and relevant to the cause of the applicant’s left shoulder condition. When read in totality the opinion of Dr Chan is that the applicant’s right shoulder injury is the most likely cause of the left shoulder condition because the nature of the right-side injury would have required overcompensated use of the left side. It is evident Dr Chan did consider other possibilities, the most obvious being an “instigating injury” to the left side as a potential cause of the condition, but as there had been no injury to that side, it was discounted. He was not required to consider every other possibility in circumstances where the right shoulder explanation was obvious to him and apparently the most plausible given his stated opinion.
The respondent submitted the deductive reasoning process applied by Dr Chan was deficient (apparently by reference to propositional logic in philosophical argument), given he stated in his opinion that it was “reasonable to deduce” overcompensation related to right-side injury. I do not accept Dr Chan used that term in the context of deductive reasoning as part of some philosophical thought exercise. It was a phrase used to explain the effect of the right shoulder injury on the applicant’s daily living requirements and was an expression of the ordinary usage of the word ‘deduce’, which is, to derive a conclusion from something known or assumed.[37] I consider Dr Chan was simply reaching a conclusion from the information known to him about the applicant as the treating GP with an explanation, which is what was asked and all that was required.
[37] Macquarie Dictionary.
Dr Chan formed the entirely plausible view that if the right side were unavailable due to injury, the applicant would have used his left side, which is the evidence given by the applicant in his statement. The reasoning process of Dr Chan is sufficiently clear and his opinion as to causation is accepted.
Adopting a commonsense approach, I am satisfied that it is more probable than not the left shoulder condition resulted from the accepted right shoulder injury because it became necessary for the applicant to extensively use his left arm for daily living. In turn, problems developed in his left shoulder from that extensive daily use. Accordingly, I am persuaded that the applicant has met the required onus to establish he has suffered a consequential condition to his left shoulder as a result of the accepted injury to his right shoulder.
A final matter of note is that the Commission received from the respondent, without objection by the applicant, a further report of Associate Professor Miniter dated 17 July 2024, for the sole purpose of consideration by the Medical Assessor. That report was not reviewed or considered in the determination of the dispute about the left shoulder condition. It is however now available to the Medical Assessor.

SUMMARY

The applicant developed a consequential condition to his left shoulder as a result of the accepted right shoulder injury that he sustained on 20 January 2020.
The applicant’s claim for lump sum compensation pursuant to s 66 of the Act in relation to the 20 January 2020 injury will now be remitted to the President of the Commission for referral to a Medical Assessor, for that assessor to assess the level of the applicant’s whole person impairment in relation to his right shoulder, right elbow, cervical spine and left shoulder.

[2024] NSWPIC 541

1 October 2024