Moody v Evolution Traffic Control Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moody v Evolution Traffic Control Pty Ltd [2024] NSWPIC 420
APPLICANT:	Jason Matthew Moody
RESPONDENT:	Evolution Traffic Control Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	6 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted left shoulder injury and consequential scarring; whether consequential right shoulder condition due to compensatory overuse; degenerative pathology in both shoulders; whether onset of symptoms causally related to injury; Held – the opinions expressed by the applicant’s medical experts were more consistent with the treating evidence; applicant’s onus discharged; matter remitted to President for referral to a Medical Assessor to assess permanent impairment of both shoulders and skin.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential condition at his right shoulder as a result of the injury to his left upper extremity on 28 February 2018. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 28 February 2018 (personal) Body parts: left upper extremity (shoulder) right upper extremity (shoulder) (consequential) skin/ TEMSKI (consequential) Method: whole person impairment. 3. The materials to be referred to the Medical Assessor are to include all of the documents admitted in these proceedings.

STATEMENT OF REASONS

BACKGROUND

Mr Jason Matthew Moody (the applicant) was employed as a traffic controller by Evolution Traffic Control Pty Ltd (the respondent).
On 28 February 2018, the applicant sustained an injury in the course of employment when a fence he was sitting on shifted and he fell approximately 2m backwards onto rocks.
The respondent’s insurer accepted liability for an injury to the applicant’s left upper extremity in the incident. Liability in respect of a consequential right shoulder condition was disputed in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 8 May 2020, 7 April 2022 and following internal review, on 17 October 2023.
The applicant subsequently made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987, which was amended on 17 July 2023. The applicant relied on an assessment made by Dr James Bodel, dated 4 July 2023, of 30% whole person impairment of both shoulders and consequential scarring.
Liability to pay lump sum compensation was disputed in further notices issued on
3 December 2020 and 23 October 2023.
The applicant commenced the present proceedings by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 16 April 2024. The applicant seeks lump sum compensation in accordance with Dr Bodel’s assessment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a consequential condition at his right shoulder as a result of the injury to his left upper extremity on 28 February 2018, and
(b) the degree of permanent impairment resulting from the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing via Microsoft Teams on 25 June 2024. The applicant was represented by Mr De Meyrick of counsel. The respondent was represented by Mr Rickard of counsel.
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)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 9 May 2024, and
(d)    documents attached to an Application to Admit Late Documents lodged by the respondent on 28 May 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 13 July 2021 and
2 April 2024.
In his first statement, the applicant described the incident on 28 February 2018.
The applicant said he sat on a brick fence, which appeared to be solid and stable, to make a phone call. During the phone call, the fence shifted and the applicant fell backwards approximately 2m, landing onto rocks. Immediately after the incident, the applicant was in pain and struggling to breathe. An ambulance was called and police attended the scene. The applicant was transported to Royal North Shore Hospital.
The applicant began experiencing soreness and stiffness in his right shoulder around August or September 2019. Prior to the incident, he had never injured the right shoulder and it was asymptomatic. The applicant stated,
“Since the incident, I had no choice but to over-use my right shoulder to compensate for my left shoulder for daily activities such as grocery shopping, laundry, cleaning, cooking, gardening, dressing and showering. Due to this, I started to feel symptoms in my right shoulder which became progressively worse.”
The applicant said he sought medical advice from his general practitioner, Dr Manee Vandebona, around December 2019. The applicant was referred for an ultrasound of his right shoulder, which was performed in January 2020. The applicant was then referred to orthopaedic surgeon, Dr Wade Harper. Dr Harper recommended a reverse shoulder arthroplasty surgery, however, as liability for the right shoulder was declined, the applicant was unable to undergo the procedure.
The applicant’s ongoing symptoms included an inability to carry weights of 500g or more for more than a minute, difficulty dressing, ongoing tightness, stiffness and pain in the front and side of the shoulder.
In his supplementary statement, the applicant said he did recall experiencing stiffness and pain in his left shoulder for which he consulted Dr Harper in 2015. The applicant did not require treatment and the pain improved on its own. The applicant continued working without difficulty.
The applicant also recalled reporting some minor pain in his right shoulder to his general practitioner in Maroubra in about 2007. The pain improved.
The applicant described the treatment he received following the injury. Following a three day admission at Royal North Shore Hospital, the applicant was treated with physiotherapy and pain medication. The applicant was referred for an MRI scan of the left shoulder in May 2018. In June 2018, Dr Harper indicated that the applicant had an irreparable tear in his left shoulder. The applicant continued with nonoperative treatment but his condition did not improve. The applicant was in constant pain with limited function.
At the time the applicant saw Dr Harper again in November 2018, his pain had worsened and he was unable to fully mobilise the left shoulder. The applicant decided to proceed with a left total shoulder replacement surgery.
The surgery was performed on 12 March 2019 and paid for by the respondent’s insurer. Following the surgery, the applicant wore a sling for approximately 8 to 10 weeks. The applicant continued with physiotherapy and pain medication as needed.
After the surgery, the applicant felt his range of movement had improved but he was still in a lot of pain. The shoulder was tender and stiff. The applicant said he relied heavily on his right shoulder and arm to perform activities of daily living and this caused pain in his right shoulder. The applicant struggled to toilet and drive due to persisting pain in his right shoulder.
After the insurer declined liability to pay for the right shoulder replacement surgery, the applicant was placed on a waiting list by Dr Harper. The applicant tried to manage his pain doing physiotherapy and taking pain medication.
Around the same time, the applicant’s wife passed away from cancer. The applicant’s mental health deteriorated and was worsened by the ongoing pain and disability in his shoulders. When an opening to do the surgery privately arose, the applicant decided to proceed for the sake of his mental health. The surgery was performed on 5 August 2022.
The applicant stated:
“I would like to state that I did not have any major issues with my right shoulder at the time of injury on 28 February 2018. I do not recall any specific injury or trauma to my right shoulder, rather I slowly developed symptoms in my right shoulder at the end of 2019.
I had started relying on my right shoulder to more to do things, because my left shoulder was injured and painful.
I used to be able carry groceries with my left hand, however I had trouble carrying items over 2 kilograms given my left shoulder injury. I would then have to hold groceries using my right arm and shoulder which started to become sore.
I used to be able to hang clothes outside on the clothesline, however after the injury to my left shoulder, I had difficulty putting my left arm over my head. I then had to then rely on my right shoulder to wash clothes and hang laundry.
I struggled with toileting and showering because it hurt putting my left shoulder above my head. I had to rely on my right shoulder to shampoo my hair, wash my body and get dressed.
I had difficulty at home carrying pots, cooking, preparing dishes, cleaning and taking out rubbish due to my left shoulder injury, therefore I had to rely on my right shoulder to do these things.
I do believe that the pain I developed in my right shoulder was due to overcompensating from my left shoulder injuries.
I had to start relying on my right shoulder significantly as my left shoulder worsened. It got to the point where my right shoulder started hurting badly that I had to see my GP about it.”

Treating evidence

Clinical records from the applicant’s physiotherapist and general practitioner at Maroubra Medical Centre are in evidence. Those records include a consultation recorded on
3 March 2018 in which it was noted that the applicant had fractured his ribs in an incident on 28 February 2018. The applicant was unable to lift his left arm and required imaging.
Left arm pain, swelling and limited range of movement were noted at subsequent consultations. Eventually, the applicant was noted to have a left radial head fracture and to be wearing a sling.
On 15 May 2018, it was recorded that the applicant had been unable to lift his shoulder since the injury and had difficulty turning the arm. Dr Vandebona referred the applicant for an MRI of the left shoulder on 16 May 2018. The scan was later noted to show a massive supraspinatus tear. Dr Vandebona referred the applicant to Dr Wade Harper on
18 June 2018.
Pain and restriction of movement at the left shoulder continued to be recorded throughout 2018. By September 2018, the clinical notes referred to an impingement syndrome. In November 2018, it was noted that Dr Harper had discussed a left total shoulder replacement with the applicant.
By early 2019, the applicant was reporting worsening, throbbing left shoulder pain and being unable to sleep on his preferred left shoulder. The applicant was noted to be having difficulty with his activities of daily living and gardening.
The applicant underwent surgery with Dr Harper on 12 March 2019, following which he was prescribed Targin and Panadeine Forte.
On 23 April 2019, it was noted that the shoulder was still sore and the applicant was wearing a sling. The applicant continued to undergo physiotherapy for the left shoulder and report left shoulder pain throughout 2019.
On 31 October 2019, the applicant was noted to be having difficulty with his activities of daily living. The applicant reported having difficulty doing some gardening and having a friend complete the work.
On 20 December 2019, Dr Vandebona noted,
“over use right arm, now shoulder pain
unable to add duct more than 90 degree”
The applicant was referred for an ultrasound of the right shoulder with a suspected rotator cuff tear.
In a physiotherapy note on 2 January 2020 it was recorded that the applicant had injured his right shoulder while gardening. The note continued,
“compensates a lot with R shoulder due to L shoulder operation
now R shoulder pain”
An impingement test at the right shoulder was noted to be positive.
The report of the ultrasound performed on 9 January 2020 noted a longstanding rupture and retraction of the supraspinatus and LHB tendons as well as full thickness subscapularis and infraspinatus tendon tears. It was recorded that assessment was limited due to movement restriction.
On 13 January 2020, the applicant was referred to Dr Harper again after the results of the right shoulder ultrasound were discussed.
Right shoulder pain continued to be noted throughout January 2020 and the applicant was referred for an MRI scan.
On 29 January 2020, Dr Harper wrote to Dr Vandebona after reviewing the applicant.
Dr Harper reported that 11 months after the left reverse arthroplasty, the applicant had experienced a significant improvement in his left shoulder pain but had returned due to increasing right shoulder pain, sleep disturbance and stiffness. Dr Harper noted:
“He related the onset of right shoulder symptoms to chronic overload rather than specific trauma.”
Dr Harper noted the MRI findings and recorded that the applicant had right rotator cuff arthropathy and irreparable tears. His surgical option was a right shoulder reverse arthroplasty, principally for pain relief. There was no other viable option for pain relief.
Dr Harper prepared a report for the insurer responding to various questions about the applicant’s claim. Dr Harper expressed the view:
“I have difficulty providing a causal link between the development of symptoms in the right shoulder and the original workplace injury. Jason fell on a work site in February 2018. He had ongoing left shoulder pain. Investigations showed left shoulder irreparable massive rotator cuff tear. He was managed nonoperatively with increasing pain and loss of function. I performed his left shoulder reverse arthroplasty in March 2019. He returned in January 2020 with increasing right shoulder pain and loss of function. Scans showed a right shoulder massive irreparable rotator cuff tear with superior migration of the humeral head.”
Dr Harper said he was not aware of any pre-existing conditions or injuries to the right shoulder. He reiterated his views with regard to surgery at the right shoulder.
On 11 May 2020, Dr Vandebona noted that liability for surgery to the right shoulder had been declined. It was noted that the applicant never had problems with the shoulder before.
Worsening right shoulder pain was recorded in the clinical notes on an intermittent basis throughout 2020 and 2021, during the COVID-19 pandemic. In this same period, the applicant was noted to be the carer of his terminally ill wife.
On 15 March 2022, Dr Vandebona recorded that the applicant continued to experience shoulder pain. His right arm was not moving. The applicant was unable to sleep or lay on his side for a long time. The applicant had ceased physiotherapy due to approval being withdrawn.

Dr Low

The applicant relies on medicolegal reports prepared by occupational physician, Dr Sean Low dated 16 December 2019, 5 June 2020 and 13 January 2021.
Dr Low noted the applicant to be ambidextrous.
In his first report, Dr Low took a history of the injury and subsequent treatment that was consistent with the treating evidence. The applicant reported that as a result of his left shoulder injury he now favoured his right arm where he could. As a result, he had noted recent increasing right shoulder discomfort.
Dr Low commented:
“Mr Moody’s injuries were initially managed conservatively however he continues to experience significant left shoulder pain and discomfort. Mr Moody ultimately progressed to a reversed left shoulder replacement. Post-operatively, he has undergone significant periods of conservative management however has made minimal improvement. He continues to experience significant restrictions in range of motion and power. Overall, this has translated into significant impact in his ability to perform his normal activities of daily living as well as a reduction in his work capacity.”
In his second report, Dr Low was asked to comment on whether the condition at the applicant’s right shoulder was causally related to the subject incident, Dr Low responded:
“I consider that he has sustained an aggravation of right sided pre-existing rotator cuff arthropathy. This represents a consequential injury of his left shoulder condition. I form this opinion on the basis of the extent of his left shoulder condition that would have resulted in compensatory activities. It is noted that during my initial assessment,
Mr Moody had already indicated that his right shoulder was becoming symptomatic.”
In his third report, Dr Low observed that since his last assessment the applicant had continued to attend conservative management. The applicant reported continuing symptoms in both shoulders as well as restricted range of motion which was confirmed on examination.
Dr Low reviewed the ultrasound and MRI of the right shoulder and gave the opinion that the applicant had a consequential condition at the right shoulder consisting of an aggravation of right shoulder rotator cuff pathology. Dr Low explained:
“With respect to his right shoulder specifically, I maintain that he has sustained a consequential injury as a result of the subject work injury. He developed symptoms some six months following his left shoulder surgery. I consider that the extent of the left shoulder injury and subsequent surgery would have been such that he would have to have favoured his right side for most activities of daily living. Furthermore, there was no evidence made available to me to suggest that his right shoulder had been symptomatic prior to the subject work injury.”

Dr Bodel

The applicant additionally relies on medicolegal reports prepared by orthopaedic surgeon,
Dr James Bodel, dated 4 July 2023 and 29 April 2024.
In his first report, Dr Bodel diagnosed injuries to the left shoulder and upper limb and a “consequential” injury to the right shoulder.
Dr Bodel recorded a history that was broadly consistent with the other evidence. On examination, he noted pain and stiffness in both shoulders as well as reduced range of movement. Dr Bodel observed healed scarring consistent with reverse total shoulder replacements at both shoulders.
Dr Bodel considered the radiological investigations of the right shoulder noting,
“A CT scan of the right shoulder dated 17 March 2022, shows the moderate arthritic change in the AC joint and the glenohumeral joint on the right hand side with a chronic full thickness tear in that area as well.
… A report of the MRI scan of the right shoulder on 24 January 2020, also shows the severe arthritic change with a complete rupture of the supraspinatus and full thickness tear of most of the infraspinatus tendon with the moderate muscle atrophy and arthritic change in the glenohumeral joint.”
Dr Bodel referred to Dr Harper’s reports and the records of Maroubra Medical Centre.
Asked to provide an opinion on whether the applicant had developed a consequential condition to the right shoulder as a result of the workplace injury, Dr Bodel responded:
“The right shoulder injury became increasingly evident while trying to recover from the initial aggravation, acceleration, exacerbation and deterioration of the left shoulder and the subsequent surgical repair, and over time, the underlying and previously unknown cuff arthropathy deteriorated to the point that the right shoulder also needed the surgery.”

Dr Bodel expressed the view that the right total reverse shoulder replacement performed by Dr Harper was reasonably necessary as a result of the injury. Dr Bodel made an assessment of 30% whole person impairment.
Dr Bodel was asked to comment on the report of the respondent’s medicolegal expert,
Dr Roger Rowe, dated 22 April 2020. Dr Bodel responded:
“In regard to the right shoulder, he makes the observation that ‘Mr Moody has a chronic degenerative ruptured rotator cuff of the right shoulder. This is the result of age and constitutional determined degeneration”. He then goes on to indicate that there is “no history of any accident or injury involving the right shoulder. There is no evidence to relate his right shoulder symptoms to the subject workplace injury’. The statements as read are correct. He does indeed have a chronic ruptured rotator cuff in the region of the right shoulder and medically he was unaware of that and was not being treated for it. It is primarily an age related constitutionally determined degeneration, as it is also in the left shoulder.
I believe, however, that both shoulders are work related because of the disease provisions of the Act. I have made a substantial deduction of the left shoulder (50%) deduction because of the known previous history and the fact that he had been offered a reverse total shoulder replacement prior to the injury that is the subject of this claim.
On the right hand side, there is no known history of previous problems with the right shoulder.
The causal link of the injury to the right shoulder is the aggravation, acceleration, exacerbation and deterioration of a disease process in the region of the right shoulder caused by favouring that right side while recovering from the lengthy process of management of the left shoulder injury.
I agree with the pathological statements made by Dr Rowe about the pathology that is present in both shoulders, but I disagree with the causation issue which I have outlined above.”
In his supplementary report, Dr Bodel reiterated his view that the right reverse total shoulder replacement surgery was causally related to the injury to the left shoulder. All other treatment options had been exhausted, it was likely to be cost-effective and was an acceptable practice for management of the condition at the shoulder at the time.
Dr Bodel was referred to the further report of Dr Rowe dated 6 September 2023. Dr Bodel noted that Dr Rowe appeared to accept that the surgery at the right shoulder was appropriate treatment. Dr Bodel commented:
“He sees no causal link between the subject injury dated 28 February 2018 which was primarily to the left shoulder and does not accept that this is a consequential injury in the right shoulder. I disagree with this conclusion. Clearly there is underlying pathology in both shoulders prior to the original injury that occurred on 28 February 2018. Both had well established post-traumatic degenerative pathology in both shoulders. The injury to the right shoulder is the aggravation, acceleration, exacerbation and deterioration to that disease process caused by overuse in this circumstance. I disagree with the assessment by Dr Rowe because in my view, the right shoulder is covered by the disease provisions of the Act as I have indicated.”

Dr Rowe

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Roger Rowe, dated 22 April 2020, 6 September 2023 and 15 May 2024.
In his first report, Dr Rowe took a history of the incident involving the fall backwards and onto the applicant’s left side. The applicant was found to have a fracture of the left seventh rib whilst at hospital. The applicant subsequently attended his general practitioner and physiotherapist for his ribs and left arm. Dr Harper undertook a reverse left shoulder replacement “with relief of his pain” and now wished to replace the right shoulder.
The applicant reported that he had lost his pain at the left shoulder but still had some residual weakness and restricted range of movement. The applicant was now able to lie on the shoulder but felt stiff on awakening. The applicant had restricted range of shoulder movement at the right and it ached if he lay on it or carried weights.
Dr Rowe reviewed the reports of the ultrasound and MRI of the right shoulder. Dr Rowe said he was not able to fully clarify when the right shoulder symptoms began. He diagnosed a chronic degenerative ruptured rotator cuff of the right shoulder which he found were the result of age and constitutionally determined degeneration. There was no history of any accident or injury involving the right shoulder or any evidence to relate the right shoulder symptoms to the workplace injury.
In his second report, Dr Rowe noted that the applicant had undergone a right total shoulder replacement in August 2022 performed by Dr Harper. The applicant reported that his right shoulder symptoms had commenced about six months after the injury and became worse during 2019 the applicant began receiving physiotherapy for his right shoulder and using a TENS machine and medication from late 2019 or 2020.
The applicant reported that his shoulders were much the same in regard to ongoing symptoms. He experienced intermittent pain and restricted range of movement.
Asked whether the applicant had sustained a consequential injury to the right shoulder as a result of overuse in protecting his left shoulder, Dr Rowe responded:
“There is no evidence that Mr Moody sustained a consequential injury to the right upper limb as a result of overuse protecting the left shoulder. He clearly had a long history of chronic rotator cuff pathology with secondary osteoarthritis in both shoulders. It is noted a report by Dr Bodel that Mr Moody initially attended Dr Harper in regard to the left shoulder in February 2015. There was significant pathology present at that time. The subject incident may have aggravated the left shoulder but there is no evidence that it aggravated the right shoulder. The mere use of the right shoulder would not aggravate the underlying pathology and would not make any difference to the requirement for total joint replacement of the right side.”
Dr Rowe expressed the opinion that the right reverse shoulder replacement was required for treatment of osteoarthritis in the shoulder joint.
In his final report, Dr Rowe was asked to comment on the report of Dr Bodel dated
29 April 2024. Dr Rowe responded:
“The review of this report by Dr Bodel does not lead me to change my assessment in any way. I remain of the view as clearly expressed in my earlier report that there was well established degenerative change in the right shoulder and indeed in both shoulders. The development of symptoms in the right shoulder was simply an expression of the underlying pathology which was well established. There is no evidence of overuse of the right arm as he has been doing very little and simple day to day activity would not cause any material aggravation. Thus, I remain of the view that there is no evidence of any consequential injury involving the right shoulder.”

Applicant’s submissions

The applicant submitted that the injurious event involved a significant fall. The injury to the applicant’s left shoulder resulted in a need for surgery, following which the applicant wore a sling for 8-10 weeks. The surgery had a sub-optimal outcome.
The applicant referred to his first written statement in which he said he was overcompensating for the left shoulder injury by using his right arm. The applicant continued with his activities of daily living by using his right shoulder.
The applicant submitted that the clinical notes supported his evidence. Dr Low also took a history of overuse and concluded that the condition at the applicant’s right shoulder was consequential to the work injury.
The reports of Dr Bodel responded to the respondent’s medicolegal opinions. In his supplementary report, Dr Bodel expressed the view, in no uncertain terms, that there was a causal connection between the left shoulder injury and the right shoulder condition.
The applicant submitted that Dr Rowe took a simplistic view that did not take into account the relevant considerations from a legal perspective. Even in his most recent report, Dr Rowe failed to take into account the history before the Commission. The applicant observed that in his report of 15 May 2024, Dr Rowe gave the opinion that the development of symptoms was simply an expression of underlying pathology. There was said to be no evidence of overuse.
The applicant said that this opinion did not accord with the history and the statement evidence. It was clear that the applicant had ongoing problems with his injured left shoulder. Nevertheless, the applicant tried to continue to live an active life, relying on his right arm.
The applicant noted that the relevant legal principles set out in cases such as Moon v Conmah[1] and Kumar v Royal Comfort Bedding Pty Ltd.[2] It was not necessary for the applicant to establish an “injury”. Referring to the decision in Federal Broom Co Pty Ltd v Semlitch[3] the applicant submitted that he did not have to prove a change in pathology. A change in symptoms was enough.
[1] [2009] NSWWCCPD 134.
[2] [2012] NSWWCCPD 8.
[3] [1964] HCA 34.
It was the applicant’s case that any degenerative pathology became symptomatic in late 2019 onwards due to the history of overuse.
The applicant submitted that the relevant causal connection was established on the evidence and both shoulders ought to be referred to a Medical Assessor for an assessment of the degree of permanent impairment.

Respondent’s submissions

The respondent submitted that the views expressed by Dr Rowe were unambiguous.
Dr Rowe maintained his view after considering the reports of Dr Bodel. He considered that the development of symptoms was simply an expression of well-established underlying pathology. Dr Rowe did not consider that simple day-to-day activity would result in an aggravation of that pathology.
The history recorded by Dr Rowe indicated that he clearly understood the applicant’s claim of functional restrictions and alleged overuse. It was apparent that the applicant was ambidextrous. The right arm was not an inferior or non-dominant arm.
Dr Harper appeared to share the views expressed by Dr Rowe.
The respondent submitted that the Commission would prefer the views expressed by
Dr Rowe over the opinion of Dr Low as an occupational physician.
Dr Bodel’s reports conflated the provisions of s 4(b)(ii) with the test for a consequential condition and ought not be preferred over Dr Rowe and Dr Harper.
As the treating specialist, Dr Harper was in the best position to make an assessment as to whether the condition at the right shoulder had any relationship to the left shoulder injury.
Dr Harper did not make that connection.
The respondent submitted that the applicant bore the onus. The applicant’s onus had not been discharged in the absence of support from his treating specialist.

Applicant’s submissions in reply

The applicant submitted that Dr Harper’s report of 29 January 2020 was not prepared for the purposes of litigation. Understandably the doctor was upbeat about the results of his own surgery. Treating surgeon’s reports did not always provide a frank view as to the success of a surgery.
Although Dr Harper was not prepared to draw a causal connection between the right shoulder condition in the left shoulder injury, this was a legal question.
Dr Harper did note that the applicant had attributed his right shoulder condition to chronic overloading.
The applicant submitted that it was not surprising that without a proper legal analysis,
Dr Harper may have considered the right shoulder condition to be separate from the fall off a fence. The causal mechanism was different to the initial event. A temporal connection was not necessary. The applicant submitted that the Commission would not find Dr Harper’s views on causation helpful.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act.
The test for establishing a consequential condition can be distinguished from that required to establish an “injury”. In this regard, the comments of Deputy President Roche in Moon v Conmah[4] at [45]-[46] are relevant:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[4] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[5] Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[5] [2013] NSWWCCPD 4.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[6] Snell DP referred to the decisions in Moon v Conmah[7] and Kumar v Royal Comfort Bedding[8] and observed:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.”
[6] [2016] NSWWCCPD 23.
[7] [2009] NSWWCCPD 134.
[8] [2012] NSWWCCPD 8.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[9] where Kirby P (as his Honour then was) said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[9] (1994) 10 NSWCCR 796 at [810].
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained a condition at his right shoulder which has resulted from the injury to his left shoulder. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[10] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[10] [2008] NSWCA 246.
It is uncontroversial that the applicant has pathology at his right shoulder which is degenerative in nature. There is also no dispute between the parties that the pathology at the right shoulder became symptomatic in late 2019 and that the surgery ultimately performed at that shoulder by Dr Harper was reasonably necessary medical treatment for that condition.
The dispute between the parties lies in the differing expert opinions as to whether the onset of symptoms was causally related to the accepted work injury to the left shoulder on
28 February 2018.
In raising the dispute, the respondent relies on the opinions given by Dr Rowe. Dr Rowe found the pathology at the right shoulder was primarily age related and constitutionally determined degeneration. While Dr Rowe accepted that the incident on 28 February 2018 may have aggravated similar pathology at the left shoulder, he found no evidence that it aggravated the right shoulder. Dr Rowe said the mere use of the right shoulder would not aggravate the underlying pathology and would not make any difference to the requirement for total joint replacement of the right side.
The respondent also relies on Dr Harper’s report to the insurer, where he expressed difficulty identifying a causal link between the development of symptoms in the right shoulder and the original workplace injury.
It is not the applicant’s case that the right shoulder was injured in the initial event.
Furthermore, the authorities to which I have referred above establish that, in the circumstances of this case, it is only necessary for the applicant to demonstrate, on the balance of probabilities, that he has experienced an onset or increase in symptoms or restrictions at the right shoulder which has resulted from the left shoulder injury. It is not necessary for the applicant to establish that the pathology revealed on the radiological investigations resulted from the work injury or was made worse by the work injury.
I am not satisfied that Dr Rowe’s reports or Dr Harper’s opinion on causation reveal a correct understanding of the legal test to the be applied in this case.
I have, however, considered whether Dr Rowe’s comment, that “mere use of the right shoulder would not aggravate the underlying pathology”, should be understood to mean that mere use of the shoulder would not result in an increase in symptoms and restrictions.
Even adopting this approach, I am not satisfied that Dr Rowe’s opinion properly engages with the history of this case.
My own review of the lay and treating medical evidence indicates that the incident on
28 February 2018 resulted in significant injuries to the applicant’s left upper limb including a radial head fracture and aggravation of pathology at the left shoulder necessitating a left shoulder arthroplasty.
The clinical notes from the applicant’s general practitioner and physiotherapist reveal that the applicant experienced considerable pain, swelling and limited range of movement at the left limb following the incident for a prolonged period. The applicant was noted to be wearing a sling both shortly after the incident and for an extended period following the left shoulder surgery, which took place more than a year later. Whilst I accept that the surgery did ultimately provide some relief of the symptoms at the applicant’s left shoulder, they did not resolve completely.
The applicant said that he relied heavily on his right shoulder and arm to perform activities of daily living during this time. The applicant has given evidence that he performed personal care tasks and household chores including, laundry, carrying pots, cooking, preparing dishes, cleaning and taking out rubbish with his right arm to protect his injured left arm.

I accept that, on the evidence, the applicant is ambidextrous, and so the right limb cannot be regarded as non-dominant. I do, however, accept that the evidence is consistent with increased loading and use of the right arm after the injury.
The applicant has, from the outset, attributed the onset of symptoms in his right shoulder to overload or overuse as a result of his injury to the left limb. This is recorded in the clinical notes of his general practitioner, physiotherapist, in the report from his treating surgeon,
Dr Harper on 29 January 2020 and in the initial report from Dr Low.
There is no evidence before me of any other precipitating event to account for the onset of symptoms. There is no evidence that the right shoulder was previously symptomatic or the subject of medical treatment, other than some minor, transitory pain some 12 years earlier.
The applicant’s explanation for the onset of symptoms receives support from the two experts on whose opinions he relies.
Dr Low recorded right shoulder symptoms, which the applicant attributed to protecting his left upper limb injury, in his first report in December 2019. In his second report, Dr Low expressed the opinion that the extent of the left shoulder condition would have resulted in compensatory activities. Dr Low found that the right sided pre-existing rotator cuff arthropathy had been aggravated as a consequence of the left shoulder injury.
Dr Bodel has expressed a similar opinion, concluding that the disease process in the region of the right shoulder was aggravated by favouring the right side while recovering from the lengthy process of management of the left shoulder injury.
While both Dr Bodel and Dr Low use the language of s 4(b)(ii) of the 1987 Act, I accept that their opinions are consistent with the test to be applied in this case.
In my opinion, the views expressed by Dr Low and Dr Bodel align more closely with the documented history of this case. Although their opinions are not directly supported by an opinion on causation from the treating surgeon, Dr Harper, his reports do not contradict their view. The history recorded by Dr Harper was consistent with the applicant’s other evidence. His responses to the insurer suggest he may have been focused on whether the right shoulder was injured in the initial event. As I have indicated, that is not the question I am tasked with determining.
After careful consideration of all the evidence and submissions, and for the reasons identified above, I am satisfied on the balance of probabilities that the applicant experienced symptoms and restrictions at his right shoulder that resulted from the left shoulder injury by way of compensatory use.
The matter will be remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment resulting from the injury on 28 February 2018 at the left shoulder, right shoulder and skin.

[2024] NSWPIC 420

6 August 2024