Naumovski v Eastside Formwork Pty Ltd - [2023] NSWPIC 382

CERTIFICATE OF DETERMINATION OF MEMBER

Citation:

Naumovski v Eastside Formwork Pty Ltd [2023] NSWPIC 382

APPLICANT:

Ljupco Naumovski

Respondent:

Eastside Framework Pty Ltd

Member:

Anne Gracie

DATE OF DECISION:

1 August 2023

CATCHWORDS:

WORKERS COMPENSATION - Claim for treatment expenses pursuant to section 60 of the Workers Compensation Act 1987; respondent disputes injury to right shoulder; preliminary issue section 289A of the Workplace Injury Management and Workers Compensation Act 1998 in relation to issue of worker; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the applicant sustained an injury and/or consequential injury to his right shoulder; Mateus v Zodune Pty Limited t/as Tempo Cleaning Services, Davis v Council of the City of Wagga Wagga, Email Limited (in the interests of Allianz Australia Workers Compensation (NSW) Pty Limited v Qummou and others, Briginshaw v Briginshaw, Australian Conveyor Engineering v Mecha Engineering Pty Limited, Helton v Allen, Kooragang Cement Pty Ltd v Bates, Nguyen v Cosmopolitan Homes (NSW) Pty Limited, Owen v Motor Accidents Authority of NSW considered; Held – respondent’s application pursuant to section 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 for leave to rely on a previously unnotified matter is denied; the applicant sustained an injury to his right shoulder arising out of or in the course of his employment; further the applicant sustained a consequential injury to his right shoulder as a result of the injury sustained to his right knee on 8 November 2018.

determinations made:

The Commission determines:

1. The applicant sustained an injury to his right shoulder arising out of or in the course of his employment on 8 November 2018.

2. Further the applicant sustained a consequential injury to his right shoulder as a result of the injury sustained to his right knee on 8 November 2018.

STATEMENT OF REASONS

BACKGROUND

The applicant is 67 years old. He commenced working with the respondent in 2015 as a form worker.
On 8 November 2018, he claims he sustained an injury to his right knee, hip, lower back, lumbar spine, right shoulder, anxiety and depression. He stopped work on that day and has not returned to work.
He made a claim for workers compensation which was accepted in respect of his right knee. He was paid his full entitlements of weekly benefits and the medical expenses referable to his right knee were also paid.
The applicant's claim before me is in respect of the alleged injury to the applicant’s right shoulder on 8 November 2018 and/or a consequential injury to his right shoulder arising out of the right knee injury the applicant sustained on 8 November 2018.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has sustained an injury to his right shoulder on
8 November 2018 and/or a consequential injury to his right shoulder arising out of the injury the applicant sustained to his right knee on 8 November 2018.

Matters previously notified as disputed

In the s 78 notice dated 1 March 2023 (see page 11 of the Application to Resolve a Dispute (ARD)), the respondent had previously disputed liability for the cost of the surgery to the right shoulder proposed by Dr Popoff in his report dated 27 February 2023 (see page 10 of the ARD) pursuant to s 59 and s 60 of the 1987 Act. At the arbitration hearing this dispute was withdrawn however the issue of injury with respect to the right shoulder remained in dispute. The respondent agreed that the right shoulder surgery proposed by Dr Popoff was reasonable and necessary.

Matters not previously notified

The parties agreed that the following preliminary issue was in dispute that had not previously been notified:
(a) whether leave should be granted to the respondent pursuant to s 289A of the Workplace Injury Management and Compensation Act 1998 (the 1998 Act) to dispute that the applicant was employed by the respondent and therefore not a worker within the meaning of s 4 of the 1998 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The matter commenced and submissions were made by both counsel in relation to the preliminary issue that needed to be addressed before the arbitration could proceed. The issue was in relation to whether leave should be granted to the respondent pursuant to
s 289A of the 1998 Act to dispute that the applicant was employed by the respondent and therefore not a worker within the meaning of s 4 of the 1998 Act.
On 19 June 2023 the respondent lodged an Application to Admit Late Documents (AALD) annexing a further s 78 notice dated 5 June 2023 together with other documents. The s 78 notice raised the issue of “worker” pursuant to s 4 of the 1998 Act.
At the arbitration, the respondent sought leave pursuant to s 289A (4) of the 1998 Act to raise a previously unnotified dispute in relation to the issue of “worker” as set out in the s 78 notice dated 5 June 2023 which is annexed to the AALD (see page 1 of the AALD dated
19 June 2023).
The applicant objected to the admission of the s 78 notice dated 5 June 2023.
Submissions were made by the applicant and the respondent which have been recorded and I will not repeat the submissions here.
After considering the submissions made by both parties, I rejected the s 78 Notice dated
5 June 2023. My reasons for rejecting the respondent’s application to raise a previously unnotified dispute in relation to the issue of “worker” have been recorded. I indicated to the parties that I would supplement the reasons that were recorded on 4 July 2023 in my written decision.
The applicant and the respondent took me to the decision of Deputy President Roche in the matter of Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227. In that matter Roche DP made the following observations:
“(a)    a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(b)     any insurer seeking to dispute an unnotified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(c)     any unreasonable or unexplained delay in giving notice of an unnotified matter will be relevant to the exercise of the discretion;
(d)     In exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(e)     in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the unnotified issue that is sought to be raised
(f)     though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative;
and
(g)     the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion.”
In addition to the reasons that I delivered orally at the commencement of the arbitration after I had heard submissions from the applicant and the respondent, I wish to supplement those reasons as I indicated to the parties, particularly addressing the issue of prejudice to the applicant.
The claim before me is in respect of an injury that occurred on 8 November 2018, over five years ago. The applicant made a claim for compensation for his injury and the claim was accepted. He did not return to work after the injury. He was paid weekly benefits of workers compensation up until 7 November 2019 and his medical expenses referable to his right knee were paid up until November 2020 pursuant to s 60 and s 52 of the 1987 Act.
At the time of his injury, the applicant was almost 67 years old. According to his statement, he had been working with the respondent, Eastside Formwork Pty Ltd since 2015.
On the evidence before me, the applicant started to experience pain in his right shoulder in June 2019. According to the s 78 notice attached to the ARD dated 1 March 2023, the applicant’s claim was closed in 2020.
The applicant advises in his statement that he was referred to see Dr Nabavi, orthopaedic surgeon in relation to his right shoulder in October 2019 and he had an MRI of his right shoulder on 17 December 2019. Dr Nabavi recommended surgery to the right shoulder in January 2020. On 24 March 2021, the applicant consulted Dr Popoff, orthopaedic surgeon, in relation to his right shoulder. He saw Dr Popoff several times during 2021. On 17 September 2021 he was advised by Dr Popoff that he needed surgery to his right shoulder. The applicant advises in his statement that Dr Popoff told him that he would seek approval from the insurer in relation to the surgery. This is confirmed in the report from Dr Popoff to
Dr Tjeuw dated 17 September 2021 (see page 71 of the ARD).
I note that the consultations with Dr Popoff were during the COVID-19 pandemic at a time when attendance with medical practitioners and elective surgical procedures were limited. The applicant’s next attendance with Dr Popoff was on 30 June 2022 when the applicant was advised by Dr Popoff that the insurance company had declined liability for the right shoulder surgery. I have not been provided with any correspondence from the insurer declining liability at that time for the surgery that Dr Popoff refers to in his report dated 30 June 2022 (see page 72 of the ARD). In his statement, the applicant advised Dr Popoff that he would speak to his solicitor about this.
On 27 February 2023, the applicant’s solicitor wrote to the insurer requesting a review of the decision to decline liability for the right shoulder surgery. Of note, is that in that letter the applicant’s solicitor refers to two requests for review which had previously been forwarded to the insurer on 7 February 2023 and 9 February 2023. I do not have copies of those requests for review nor the original s 78 notice issued by the insurer in relation to the right shoulder surgery, if, in fact, an earlier s 78 notice was issued by the respondent.
In the s 78 notice dated 1 March 2023, (see page 11 of the ARD), the insurer claims it had not received the request for approval for the right shoulder surgery that had been sent by
Dr Popoff in September 2021. I do note at that stage the claim file had, according to the insurer, been closed since 2020.
The s 78 notice dated 1 March 2023 references material on the insurer’s file but makes no mention of the issue of “Worker”. The s 78 notice dated 1 March 2023 clearly states that the s 78 notice is in respect of “your injury on 8 November 2018 while working for Eastside Formwork Pty Ltd”.
The matter was listed for a preliminary conference on 2 May 2023. At no time during the preliminary conference was the issue of “worker” raised.
The applicant has been advised that he needed right shoulder surgery since January 2020 when he consulted Dr Nabavi. According to the report from Dr Dixon dated 12 April 2021, (see page 22 of the ARD), the applicant has pain and stiffness in his right shoulder and has difficulty elevating the right arm above shoulder height. He has difficulty sleeping on the right shoulder due to pain.
I agree with the submissions made by both parties that the solicitor acting on behalf of the respondent has acted promptly in advising the applicant’s solicitor of her concerns when she became aware of the two payslips identifying a different named employer, however the issue was raised only six weeks before the conciliation/arbitration conference on 4 July 2023. The issue was not raised by the insurer when the claim for surgery was made nor when it issued the s 78 Notice dated 1 March 2023 denying liability for the right shoulder surgery. It was not raised before the ARD was filed on 30 March 2023. It was not raised in the Reply that was filed on 20 April 2023. It was not raised during the Preliminary Conference that was held on
2 May 2023. The amended s 78 notice was sent to the applicant on 5 June 2023, one month before the conciliation/arbitration hearing. I accept how the respondent’s solicitor became aware that the issue of “Worker” may become an issue as it had not been pleaded in the s 78 notice issued on 1 March 2023. It is unclear from Ms Whiting’s statement, which was tendered by the respondent in relation to the preliminary issue, when she received the insurer’s file.
As I have already pointed out in my extempore decision in relation to this preliminary issue, which has been recorded, I am not convinced on the basis of two payslips that were annexed to the s 78 notice dated 5 June 2023, that the applicant was employed by the entity named in those payslips. At the time of making the initial claim in 2018, the insurer had the opportunity to consider the issue of “worker”. I do not know what information was given to the insurer at that time however it was clearly enough evidence to satisfy the insurer that the applicant was employed by the respondent at the time of his injury in 2018.
On the evidence before me it is not clear what investigations were made by the insurer to carefully consider the factual and legal issues in any detail in this matter dating back to when the claim was first made by the applicant in 2018. I have no evidence before me from the insurer as to what investigations were made at the time the initial claim was made.
In relation to the issue of prejudice to the applicant, the applicant has relied on the insurer’s actions since the initial claim was made. The applicant has been waiting to have right shoulder surgery since 2021 when Dr Popoff contacted the insurer. He is in pain and has difficulty sleeping on his right side. He should not have to wait any longer to have his claim determined due to the insurer’s failure to properly address the issue of “worker”. Any further delay would be unreasonable and unacceptable. The insurer should have addressed the issue of “worker” when the initial claim was made and accepted following the accident on
8 November 2018 or when Dr Popoff requested approval from the insurer for the right shoulder surgery in September 2021. Any further delay in this claim would result in significant prejudice to the applicant.
The respondent asked me to specifically address the information contained in the ASIC Current and Historical Organisation Extract in relation to the company known as Inestimable Holdings Pty Ltd and a petition filed by the Workers Compensation Nominal Insurer which appears to relate to an application for a winding up order lodged with the Supreme Court on 4 June 2021. I have noted that document however it takes the issue of “worker” no further. Apart from two payslips which allegedly identify another entity as the applicant’s employer at the time of the reported accident, I have no other information before me to satisfy me that the named respondent was not the applicant’s employer at the time of the accident. It would appear from the ASIC extract the entity named on the two payslips relied on by the respondent from Inestimable Holdings Pty Ltd may have been uninsured as the Supreme Court winding up petition has been lodged by the Workers Compensation Nominal Insurer.
In the event that Inestimable Holdings Pty Ltd was the applicant’s employer at the time of his accident, which I do not, this would result in further delay and further prejudice to the applicant as he may be required to make a separate application to the Workers Compensation Nominal Insurer and the claim would need to be investigated by the Workers Compensation Nominal Insurer. This would significantly delay the applicant’s ability to have the issue of liability for the right shoulder surgery determined by the Personal Injury Commission (Commission). Without further evidence I remain unconvinced that the named respondent was not the applicant’s employer at the time of the accident on 8 November 2018.
For the reasons set out above and the detailed reasons I provided during the conciliation/ arbitration on 4 July 2023, I reject the s 78 notice dated 5 June 2023 attached to the AALD filed by the respondent on 19 June 2023. I confirm the respondent’s application pursuant to
s 289A (4) of the 1998 Act for leave to rely on a previously unnotified matter is denied.
A further issue arose in respect of documents produced to the Commission by Dr Tjeuw pursuant to a direction for production issued by the respondent. The documents produced by Dr Tjeuw were received on 3 July 2023. The conciliation/arbitration was listed for hearing on 5 July 2023. To avoid any further delays in this matter, I gave access to the applicant on the morning of the conciliation/arbitration to inspect the documents produced by Dr Tjeuw following which access was given to the respondent to inspect the documents produced by Dr Tjeuw before the substantive matter commenced. I also made the following orders in relation to written submissions in relation to the documents produced by Dr Tjeuw. The documents produced by Dr Tjeuw were quite substantial comprising 182 pages. The orders I made were as follows:
“The Commission directs:
1.    “The applicant is to lodge and serve by 11 July 2023 written submissions in relation to the clinical notes of Dr Tjeuw received by the Personal Injury Commission on 3 July 2023 pursuant to a direction for production issued by the respondent and produced to the parties during the conciliation phase of the hearing of this matter on 4 July 2023 if it deems this necessary. The clinical notes were tendered with the consent of both parties and marked exhibit two during the Arbitration. The applicant should annex to the submissions, those documents taken from the clinical notes of Dr Tjeuw to which the applicant’s submissions relate.
2.    The respondent is to lodge and serve by 18 July 2023 written submissions in relation to the clinical notes of Dr Tjeuw received by the Personal Injury Commission on 3 July 2023 pursuant to a direction for production issued by the respondent and produced to the parties during the conciliation phase of the hearing of this matter if it deems this necessary. The respondent should annex to the submissions, those documents taken from the clinical notes of Dr Tjeuw to which the respondent’s submissions relate.
3.    The applicant is to lodge and serve submissions in reply in relation to the respondent’s written submissions by 25 July 2023 if the applicant deems this necessary.
4.    Liberty is granted to both parties to advise me if they do not wish to lodge and serve written submissions in relation to the documents produced by Dr Tjeuw.
5.    At the conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’.’’
The respondent filed written submissions and additional documents on 18 July 2023, which I have considered.
The applicant did not file submissions or submissions in reply.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents filed on 30 March 2023;
(b)    Reply and attached documents filed on 21 April 2023;
(c)    AALD filed by the respondent on 16 June 2023;
(d)    AALD filed by the applicant on 21 June 2023;
(e)    statement of Hannah Whiting dated 4 July 2023 admitted by consent in relation to the preliminary argument;
(f)    clinical notes of Dr Tjeuw produced pursuant to a Direction for Production issued by the respondent admitted by consent by both parties, and
(g)    written submissions and additional documents filed by the respondent on
18 July 2023 pursuant to Directions made on 5 July 2023 in respect of the clinical notes of Dr Tjeuw.

Oral evidence

There was no oral evidence called at the arbitration. Both counsel made oral submissions which were sound recorded and a copy of the recording is available to the parties. The respondent filed written submissions and additional documents on 18 July 2023 pursuant to the Direction made on 5 July 2023.

Applicant’s submissions

The applicant took me to the clinical notes from Dr Tjeuw and submitted that the medical assessment certificate contained therein dated 20 February 2006 in respect of an earlier injury sustained by the applicant on 26 September 2003 (see page 18 of the clinical notes from Dr Tjeuw) supports the applicant’s claim that prior to the injury on 8 November 2018, the applicant was not suffering from any symptoms in his right shoulder. The medical assessment certificate records a 0% whole person impairment of the right shoulder.
The applicant also points out that the applicant was able to carry out heavy work as a form worker in the 12 years after the medical assessment certificate was issued.
The applicant then took me to the treating doctors’ reports from Dr Nabavi, Dr Rosenberg and Dr Popoff together with the MRI scan of 17 December 2019 and the applicant’s statement. The applicant submitted that I would be comfortably satisfied that there is clear pathology in the right shoulder which was not there before the fall on 8 November 2018 and there is an unbroken chain of causation between the fall the applicant sustained on
8 November 2018, the use of the crutches and walking stick following surgery to the right knee on 9 May 2019 and the resultant pathology in the right shoulder disclosed in the MRI scan of 17 December 2019 (see page 43 of the ARD).
The applicant referred to the absence of the reporting of right shoulder symptoms by the applicant in the clinical notes from Dr Tjeuw in the first 12 months after the initial injury. The applicant referred to the case of Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 and cautioned that it was dangerous to read anything into clinical notes that do not record injury or complaints particularly in light of the applicant’s statement.
The applicant then took me to the forensic medical reports from Dr Dixon dated 12 April 2021 (see page 20 of the ARD), and 31 January 2023 (see page 27 of the ARD) prepared by
Dr Dixon on behalf of the applicant. The applicant submits that Dr Dixon supports the applicant’s claim of an initial injury to the right shoulder on 8 November 2018 and an aggravation of that injury when the applicant was using crutches and a walking stick post-surgery.

The applicant then referred me to the report of Dr Rowe dated 21 April 2023 relied on by the respondent (see page 56 of the AALD dated 18 June 2023). The applicant submits that
Dr Rowe’s report should not be relied on as Dr Rowe took an incomplete history. The applicant submits that Dr Rowe has assumed the applicant only injured his right knee.
Dr Rowe records the applicant used his left hand to use the crutch and stick. The applicant points out that this is inconsistent with the applicant’s statement. The applicant used both arms to utilise the crutches and his right hand to use the walking stick until the pain in his right shoulder forced him to use his left hand. Furthermore, Dr Rowe records the applicant first developed pain in his right shoulder in late 2020 or early 2021. This is inconsistent with the applicant’s statement and the medical reports from the applicant’s treating doctors. The applicant advises that he first started to experience pain in his right shoulder in June 2019 and the applicant was referred to see Dr Nabavi in relation to his right shoulder in October 2019.
Finally, the applicant submits that the applicant was unable to return to work following the accident on 8 November 2018. The applicant submits that this is not surprising given the pathology of the right shoulder which is demonstrated on the MRI scan dated 17 December 2019.
In reply to the respondent’s submission in respect of the earlier injury the applicant sustained to his right shoulder in 2003, the applicant points out the applicant had been able to return to work as a form worker which is a heavy occupation from approximately 2006 to 2018 without any further complaint of right shoulder pain until 2019.

Respondent’s submissions

The respondent submits that the applicant could not have injured his right shoulder in the fall on 8 November 2018. Dr Tjeuw takes a history from the applicant that he hit his right knee on the “medial aspect” (see page 129 in the clinical notes of Dr Tjeuw). The respondent submits that the there is a difficulty with injury simplicitor considering the mechanics of how the injury occurred recorded in Dr Tjeuw’s notes and questions how the applicant could have injured his right shoulder if the injury to the right knee involved the medial aspect of the knee.
The respondent notes the absence of recorded complaints or symptoms in relation to the right shoulder in the clinical notes from Dr Tjeuw from the date of the incident on 8 November 2018 until late 2019 when Dr Tjeuw refers to the right shoulder pain (see page 134 of the clinical notes of Dr Tjeuw).
The respondent submits that the applicant had previously complained of right shoulder pain to Dr Tjeuw in 2006 prior to the accident on 8 November 2018.The applicant underwent an MRI scan of the right shoulder on 13 March 2006 and an ultrasound of the left shoulder on 20 March 2006.
The respondent submits that the applicant’s submission that the right shoulder injury allegedly sustained in 2018 was so serious that it prevented the applicant from returning to work is a completely unsupported proposition. The respondent submits that the evidence that the applicant had sustained an earlier injury to his right shoulder in 2003 must also be considered.
The respondent submits that the 0% finding by the Approved Medical Specialist in the medical assessment certificate dated 20 February 2006 referable to a right shoulder injury on 26 September 2003 must be considered in the light of the knowledge that for the applicant to make an impairment claim in 2006, the applicant must have had evidence supporting a permanent impairment to the right shoulder arising out of the injury on 26 September 2003.
The respondent then took me to the medical evidence. In relation to the reports from
Dr Dixon, the respondent submits that in his report of 12 April 2021, Dr Dixon did not record that the applicant sustained a frank injury to his right shoulder on 8 November 2018 (see page 21 of the ARD). The respondent submits that it is an unlikely proposition that the applicant injured his right shoulder on 8 November 2018.
The respondent submits that the applicant’s solicitor must have also harboured reservations in relation to this aspect of the applicant’s claim. Following the initial consultation in April 2021, Dr Dixon was provided with a detailed chronology of right shoulder symptoms experienced by the applicant following the incident on 8 November 2018 in a letter from the applicant’s solicitor dated 25 January 2023 (see page 27 of the ARD). The letter from the applicant’s solicitor pointed out the symptoms the applicant developed in his right shoulder following the right knee surgery when the applicant was using crutches and a walking stick. The respondent points out that the report from Dr Dixon dated 31 January 2023 was not based on a re-examination of the applicant (see page 34 of the ARD). The respondent submits that the applicant had the opportunity of providing this history to Dr Dixon in 2021 when the medico legal consultation was conducted however the applicant did not provide
Dr Dixon with this history. Considering this, the respondent submits that the supplementary report from Dr Dixon is unhelpful and an unpersuasive piece of medico legal commentary. Furthermore, the respondent made the observation that Dr Dixon did not comment on the need for right shoulder surgery.
The respondent then made submissions in relation to the MRI scan findings of the right shoulder from 2006 and the findings from the MRI scan of the right shoulder undertaken by the applicant in 2019 and submitted that if the 2006 MRI scan had been made available to the parties prior to the day of the conciliation/arbitration, a radiologist may have been engaged to comment on the pathology recorded on the two diagnostic studies.
The respondent then addressed the applicant’s treating doctor’s reports and in particular the report from Dr Nabavi dated 13 January 2020 (see page 68 of the ARD). The respondent points out in that report Dr Nabavi has identified the need for right shoulder surgery but recommended self-funding of the operation. At that time Dr Nabavi was not considering this as part of the applicant’s workers compensation claim.
The respondent then considered the reports from Dr Popoff and made the submission that
Dr Popoff had not been given the prior history of injury to the right shoulder in 2003. Further Dr Popoff does not record a description of the incident in 2018 that the applicant alleges caused the injury to his right shoulder.
The respondent then took me to the report of Dr Rowe dated 21 April 2023 (see page 56 of the AALD). He notes the applicant attended the appointment with his daughter and an official interpreter. Dr Rowe takes a history from the applicant of injury to the right knee only on
8 November 2018, consistent with Dr Tjeuw’s clinical notes. Dr Rowe comments on the significant osteoarthritis in the applicant’s right shoulder which he opines is constitutional and age related and not related to the incident on 8 November 2018 or to the use of a crutch.

Applicant’s evidence

The applicant relies on two statements of the applicant dated 20 March 2023 (see page 1 of the ARD) and 20 June 2023 (see page 1 of the AALD dated 21 June 2023). The statement dated 20 June 2023 is similar in content to the statement of 20 March 2023 however in the later statement the applicant addressed some errors in the earlier statement that were discussed at the preliminary conference and also addressed the issue of “worker” raised by the respondent in the amended s 78 notice dated 5 June 2023.
The applicant relies on the two forensic reports from Dr Dixon dated 12 April 2021 and
31 January 2023 together with various diagnostic studies of the right shoulder, right knee, right hip and lumbar spine.
The applicant also relies on numerous reports from the applicants treating doctors including Dr Tjeuw, Dr Lieu, Dr Nabavi, Dr Rosenberg and Dr Popoff.
The applicant also provided reports in relation to the item numbers for the surgery in the event that the respondent raised the issue of s 59A of the 1987 Act. The respondent did not raise or rely on s 59A during the conciliation/arbitration.
The applicant also relies on the clinical notes of Dr Tjeuw which were admitted by consent during the conciliation/arbitration.

Respondent’s evidence

The respondent relies on the s 78 notice dated 1 March 2023.
The respondent also relies on the forensic medical report of Dr Rowe dated 21 April 2023.
The respondent also relies on the clinical notes of Dr Tjeuw which were admitted by consent during the conciliation/arbitration. The respondent has provided written submissions on the clinical notes from Dr Tjeuw and referred me to several specific documents in those notes including a report from Dr Tjeuw to the applicant’s solicitor dated 7 June 2006 (see page 3 of the respondent’s written submissions and annexures), a certificate of capacity from Dr Tjeuw dated 17 January 2019 (see page 8 of the respondent’s written submissions and annexures) and progress notes from Dr Tjeuw for the periods 8 August 2005 to 9 October 2006,
14 October 2018 to 27 June 2020 and 26 September 2003 to 29 September 2003 (see pages 7 to 10 and 5 to 18 of the respondent’s written submissions and annexures).

Consideration of the evidence

Section 4 of the 1987 Act defines injury as follows:
“Injury
means a personal injury arising out of or in the course of employment.”
The applicant has the onus of proving that he has suffered an injury within the terms of s 4 of the 1987 Act.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSW CA 246 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.”
The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates (1938) 60 CLR 336 wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at [462 E]):
“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.”
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts.”
Further in the case of Email Limited (in the interests of Allianz Australia Workers Compensation (NSW) Limited v Qummou and others [2006] NSWWCCPD198:
“if there can be identified an incident which involves - either by being itself the change, or by bringing about the change - a physical change in the worker, then - even though that change may be no more than the culmination of a progressive disease, and not the product of some external force - that damage is to be regarded as an ‘injury’ within the meaning of par(a) of the definition of ‘injury’ in s4 of the Act (see Powell J in Australian Conveyor Engineering v Mecha Engineering Pty Limited (1998) 17 NSWCCR 309 at 324).”
The abovementioned legal principles need to be considered in the context of the evidence in this case.
The applicant’s case is pleaded as follows:
“on 8 November 2018 whilst using a magnetic field to removed [sic] metal filings where rio bars had been cut, one of the ties joining the rio bars broke, causing my right foot to fall down approximately 40cm and for me to fall to my right side causing injury to right knee, hip, right shoulder, lower back, lumbar spine, anxiety and depression and following right knee arthroscopic surgery for the right knee injury on 9 May 2019, used crutches to walk for two months and after one month began to suffer consequential injury to right shoulder and thereafter used a walking stick, initially in the right hand and then, with increased pain in the right shoulder using walking stick in the left hand causing injury to the right shoulder and to a lesser extent injury to neck and aggravation of back.”
I have considered the documentary evidence and the oral and written submissions in this matter.
The applicant’s statements dated 20 March 2023 and 20 June 2023 have not been challenged. The applicant was not cross examined by the respondent.
In the statement dated 20 June 2023, which I will refer to as “the statement” from herein, the applicant provides a history of working as a carpenter and foreman for many years. The applicant also provides details in relation to symptoms he experienced in his right shoulder in 2003 and 2006. He does not specifically refer to the motor vehicle accident he was involved in on the way home from work on 26 September 2003 during the course of his employment as a formwork carpenter with a company called Hunani Pty Ltd. This additional information is contained in the medical assessment certificate which is before me and taken from the clinical notes of Dr Tjeuw (see page 18 of the clinical notes of Dr Tjeuw).
Further in the statement, the applicant advises that he commenced work with the respondent in 2015. He worked six days a week, Monday to Friday 7:00am to 3:30pm and Saturday 8:00am to 1:00pm with some Saturdays off.
The applicant provides the following history in relation to the accident that occurred on
8 November 2018 at Miller Street, North Sydney during the course of his employment with the respondent:
“On 8 November 2018 I was at Miller St North Sydney. I arrived at work at 7:00am. I was picking up filings using a magnetic field. It was raining and I stepped on a rio bar and a tie broke causing the rio bar to give way and my right foot fell through about 40cm. That caused me to fall across to my right side and I felt pain in right knee and my right hand, my right hip and back and my right shoulder. However, it was my right knee that was extremely painful. I only sought treatment initially and until the knee surgery in relation to my right knee.”
The applicant advises that he has been unable to work since the accident.
The applicant then provides a detailed chronology of the treatment he received for his right knee following the injury from his nominated treating doctor, Dr Tjeuw, his physiotherapist
Dr Leong and his orthopaedic specialist, Dr Lieu. I note in this respect the applicant advises that he was using a crutch in December 2018, one month after the accident (see paragraph 20 on page 3 of the AALD). There is also a reference to the applicant using crutches before the right knee surgery in the clinical notes from Dr Tjeuw, which are before me, at attendances with Dr Tjeuw on 15 February 2019 and 28 February 2019. On those two days the applicant advised Dr Tjeuw that he was using one crutch to walk (see page 12 of the respondent’s written submissions and annexures).
The applicant then provided a history of the right knee arthroscopy he underwent under the care of Dr Lieu on 9 May 2019. On that day, after the surgery, he was given a wheelchair to wheel him down to his daughter's car and he was helped into the car. The applicant advises that he used crutches from the following day for the next two months. The applicant advises that after about a month he started to feel pain in his right shoulder and as he continued to use the crutches the pain in the right shoulder got worse.
The applicant advises that he was reviewed by Dr Lieu on 1 June 2019 and at that time he was still using a crutch. By mid July 2019, the applicant had stopped using the crutches and had started using a walking stick. The applicant advises that when the pain in the right shoulder increased, he stopped using the walking stick with his right hand and started to use his left hand. As a result of this, the applicant experienced an increase in back pain.
The applicant’s symptoms in his right arm are first recorded by Dr Tjeuw in his clinical notes at an attendance on 17 October 2019 where there is a reference to back pain, right arm and difficulty walking (see page 15 of the annexures to the respondent’s written submissions). Soon after this, the applicant was referred to orthopaedic surgeon, Dr Nabavi. The referral to Dr Nabavi from Dr Tjeuw dated 24 October 2019 is relevant. In the referral Dr Tjeuw records the following:
“Had a fall 8/11/18 at work injury R knee subsequently developed pain at low back and R shoulder.” (see page 60 of the ARD).
The applicant attended Dr Nabavi on 28 October 2019 and the applicant advised Dr Nabavi that the main problem he was having was pain in his right shoulder. Dr Nabavi referred him for an MRI scan of the right shoulder.
The applicant underwent the MRI scan on 17 December 2019, just over one year since the initial accident. The applicant was reviewed by Dr Nabavi on 13 January 2020 and Dr Nabavi advised the applicant that he needed surgery of the right shoulder. According to Dr Tjeuw’s clinical notes the applicant discussed the advice he received from Dr Nabavi at a consultation with Dr Tjeuw on 17 January 2020 (see page 135 of the clinical notes of
Dr Tjeuw).

Dr Nabavi records in his report dated 13 January 2020 (see page 68 of the ARD), that the applicant will contact him if he wishes to proceed. Dr Nabavi also provided him with a “self-funded quote”, which the respondent submits supports the respondent’s position that the right shoulder condition was not related to the original accident on 8 November 2018 or any consequential condition as a result of using crutches and a walking stick after the right knee arthroscopy. In this respect, I do note in the earlier report from Dr Nabavi dated 28 October 2019 (see page 62 of the ARD), that the history he took from the applicant was as follows:
“Thank you for asking me to see this 67 year old gentleman. He is a Builder and he had a fall on the job while he was cleaning prior to concreting. He injured his right shoulder, his right hip and right knee.”
Following the applicant’s attendance with Dr Nabavi in 2020, the COVID-19 pandemic intervened which made access to medical care difficult.
The applicant also relies on several reports from Dr Rosenberg, orthopaedic surgeon, (see pages 63 to 67 of the ARD). Dr Rosenberg saw the applicant in late 2019 primarily in relation to the applicant’s back pain. Dr Rosenberg only records an injury to the right knee and lower back on 8 November 2018. His recorded history of how the injury occurred on the
8 November 2018 is at odds with the other reports. Dr Rosenberg records that the applicant fell, twisting forward and slightly to the left side when the beam gave away. The referral from Dr Tjeuw to Dr Rosenberg dated 24 October 2019 does refer to the right shoulder however this is not referred to in any of the reports from Dr Rosenberg (see page 61 of the ARD). I further note at that time the applicant was seeing Dr Rosenberg for his back and right knee and also seeing Dr Nabavi in relation to his right shoulder.
The applicant provides a history of his attendances with Dr Popoff, orthopaedic surgeon, who he first saw on 24 March 2021 in relation to his right shoulder and right knee on referral from Dr Tjeuw.
Dr Popoff has provided several reports (see pages 70-75 of the ARD and page 30 of the clinical notes of Dr Tjeuw).
In his report of 24 March 2021 (see page 30 of the clinical notes of Dr Tjeuw), Dr Popoff takes the following history from the applicant:
“Lupco had a fall in 2018. He was walking along some rio bars which broke and he fell, injuring his right knee and right shoulder. Both have remained problematic.”
The respondent was critical of the reports from Dr Popoff as he did not take a history of the earlier right shoulder problems the applicant experienced after the work-related motor vehicle accident in 2003. In this respect I do note that Dr Popoff acknowledges the applicant has underlying arthritis of the glenohumeral joint in his right shoulder. In a further report from
Dr Popoff dated 18 August 2021 (see page 70 of the ARD), Dr Popoff states the following:
“the MRI scan revealed a full thickness tear in the supraspinatus and advanced glenohumeral joint degeneration…Both are work related injuries which should be treated as such… The precipitating incidents for both these injuries occurred in the injury at work that he sustained in 2018.”
In his statement, the applicant advises that on 26 May 2021, Dr Popoff injected the right knee and right shoulder with anaesthetic and corticosteroid.
In his report dated 17 September 2021, Dr Popoff notes that the applicant has decided to proceed with surgery for his right shoulder (see page 71 of the ARD). Dr Popoff advises that he will be seeking the insurance company approval for the surgery. Dr Popoff confirms that in his opinion, the applicant’s right shoulder condition and injury is in direct response to the work-related incident dating back to 2018. He advises there is no non workplace related factors.
In his report dated 30 June 2022 (see page 72 of the ARD), Dr Popoff advises that the applicant’s claim for the cost of the right shoulder surgery had been declined by the workers compensation insurer. Dr Popoff expresses concern in relation to this decision as, in his opinion, both the right shoulder and the right knee were injured in the work-related incident. Dr Popoff also refers to the period that the applicant had to use crutches which caused him to overload the workplace injured right shoulder which became progressively worse.
Dr Popoff confirms that in his opinion, the right shoulder and right knee conditions are workplace related injuries.
Dr Popoff has also provided a medico legal report to the applicant’s solicitors dated
9 December 2022 which provides a summary of the previous reports prepared by Dr Popoff (see page 74 of the ARD). In that report, Dr Popoff confirms the previous history of injury discussed above and provides the following further information:
“My opinion is that Lupco has suffered a medial meniscal tear in his right knee and a rotator cuff tear in his right shoulder in the incident at work on 8th November 2018. Prior to that incident both his shoulder and knee were totally asymptomatic and became symptomatic immediately after the injury, and have remained so.
Lupco almost certainly had underlying pre-existing degeneration of both joints, but the work related injury has caused significant aggravation of this, leading to them both becoming symptomatic, and they have failed to settle with appropriate non-operative management to date…
Regarding his shoulder, it is my opinion that he tore his supraspinatus in the fall on 8th November 2018, and this led to him to decompensate for his pre-existing osteoarthritis. This was further aggravated as he required use of crutches post arthroscopic knee surgery on 9th May 2019, he used crutches to walk for two months and this aggravated his shoulder significantly.”
In his statement the applicant provides his explanation as to why he did not give a history of the pain he developed in his right shoulder associated with the use of the crutches and the walking stick to some of the doctors he has seen since the original injury on 8 November 2018. The applicant advises that he did not know how to offer this history to the doctors. The applicant advises that he wasn't trying to mislead anyone. He simply told the doctors that he had pain but did not advise how the pain developed (see page 8 of the AALD).
The applicant relies on a report from Dr Dixon dated 12 April 2021 and a supplementary report dated 31 January 2023. The respondent was critical of the two reports provided by
Dr Dixon. In the first report, the respondent notes that on page 1 of the report under the heading “Accident Details as given by the Claimant”, Dr Dixon does not record an injury to the right shoulder. Dr Dixon does however note that the applicant needed to use a crutch for six weeks following the surgery. Dr Dixon does take a history of the injuries the applicant sustained to his back and right shoulder in October 2003 and notes these injuries gradually settled and he was able to return to work as a form work carpenter/labourer. Despite not recording the right shoulder injury on page 1 of his report, Dr Dixon provides the following diagnosis on page 5 of his report (see page 24 of the ARD), “Right shoulder strain injury with post traumatic stiffness with subacromial bursitis and supraspinatus tear and impingement on abduction and biceps tendonitis clinically with deltoid and trapezial muscle pain”. Dr Dixon advises that the condition has been causally related to the injury received on 8 November 2018. Dr Dixon notes that up until the subject injury, the applicant had been able to cope with his manual work as a form work carpenter/labourer from 2015 to 2018.
In the supplementary report from Dr Dixon dated 31 January 2023, he addresses the issue of causation in respect of the right shoulder condition and provides the following comment:
“I concur that the claimant suffered a medial meniscal tear of the right knee and that the use of crutches subsequently caused significant aggravation to the claimant's right shoulder resulting in the need for surgery… both the right knee and right shoulder were asymptomatic prior to the subject accident.”
The supplementary report was provided to the applicant’s solicitor in response to a 5-page letter to Dr Dixon from the applicant’s solicitor setting out the applicant’s chronology of events that are reflected in the applicant’s statement. I acknowledge the respondent’s concern that the supplementary report was prepared without further review of the applicant however in light of the applicant’s own statement that he had difficulty expressing how the right shoulder symptoms developed after using crutches and a walking stick, I consider the report useful for my consideration.
The respondent relies on a report from Dr Rowe dated 21 April 2023 (see page 56 of the AALD). Dr Rowe expresses the following opinion:
“Mr Naumovski has quite marked osteoarthritis of the right shoulder which is the cause of his current symptoms and restrictions. the arthritis is the result of age and constitutional factors. There is no evidence to relate it to the knee injury on 08 November 2018 nor is it secondary to the use of a crutch for about 3 months in his left hand.”
I find the report from Dr Rowe largely unhelpful. Dr Rowe does not take a proper history from the applicant. He states that the applicant first noted discomfort in his right shoulder around late 2020 or early 2021. This is at odds with the medical evidence referred to above. He also only takes a history that the applicant injured his right knee on 8 November 2018. There is no reference to the lower back, right hip, right hand or right shoulder being injured in the fall. He mentions the use of the crutch and walking stick for three to four months after the right knee surgery but states that the applicant used the crutch and the walking stick in his left hand which is contrary to the applicant’s statement and the history provided to treating doctors.
Dr Rowe does not consider the aggravation to the underlying degenerative condition in the applicant’s right shoulder that Dr Popoff believes was caused by the fall and the use of the crutches and walking stick. Dr Rowe does not consider the opinion expressed by Dr Dixon in his report of 31 January 2023 that the applicant has aggravated the underling degenerative changes in his right shoulder with the prolonged use of the crutches and walking stick after the right knee surgery. Dr Rowe does not provide an alternative cause for the increase in symptoms in the applicant’s right shoulder apart from age related changes which had been asymptomatic, on the information contained in the clinical notes from Dr Tjeuw, since 2006 with no further mention of the right shoulder in the clinical notes until 2019.
The applicant and the respondent have taken me to the MRI scan of the right shoulder dated 13 March 2006 (see page 100 of the clinical notes of Dr Tjeuw) and the MRI scan of the right shoulder dated 17 December 2019 (see page 43 of the ARD). The applicant underwent a further MRI scan of his right shoulder in July/August 2021 which is referred to in the applicant’s statement and the report from Dr Popoff dated 18 August 2021 (see page 70 of the ARD). The results of this scan are not before me.
As the respondent points out, we do not have the benefit of a radiologist commenting on the MRI scans. The 2006 scan predates the 2018 injury by 12 years. The 2006 scan records a minor partial thickness tear on the bursal surface of the supraspinatus tendon distally. The tear is less than 1 cm in length. The 2019 scan shows an irregular approximately 18 x 14mm anterior supraspinatus tendon tear together with fluid within the subacromial subdeltoid bursa and moderate glenohumeral osteoarthritis. Dr Popoff in his report of 18 August 2021, notes the MRI scan taken in July /August 2021 reveals a full thickness tear in the supraspinatus and advanced glenohumeral joint degeneration.
Although I do not have the benefit of a report from a radiologist commenting on the scans, it would appear, to me on the information provided in the MRI reports and the report from
Dr Popoff dated 19 August 2021, that the supraspinatus tendon tear has increased in size since 2006.
It should also be noted that between 2006 to 2019 there is no mention of shoulder pain or symptoms in the clinical notes from the applicant’s treating doctor, Dr Tjeuw.

Findings and reasons

There is no dispute that the applicant injured his right knee during the course of his employment on 8 November 2018.
I accept the applicant's description of how the injury occurred on 8 November 2018. According to the applicant he stepped on a rio bar, a tie broke, the rio bar gave way and the applicant's right foot went through approximately 40cm and he fell onto his right side and felt pain in his right knee, right hip, right hand, back and right shoulder. At that time the applicant's main concern was his right knee.
This history is supported in the reports from Dr Nabavi dated 28 October 2019 and Dr Popoff dated 24 March 2021.
The respondent submits that the first medical record of the incident on 8 November 2018 in the clinical notes from Dr Tjeuw, record the applicant hit his right knee on the medial aspect and in those circumstances, he could not have injured his right shoulder.
I do not accept this submission. I agree that Dr Tjeuw has recorded on 19 November 2018 that the applicant fell and hit the medial aspect of his right knee, however, the report from the orthopaedic surgeon who treated the applicant’s right knee, Dr Lieu dated
19 December 2018 (see page 92 of the clinical notes from Dr Tjeuw), records the following history:
“he felt his knee externally rotate and go into valgus.”
A valgus movement of the right knee, in my opinion, is consistent with the applicant impacting the medial aspect of his right knee resulting in a medial meniscal tear. The applicant’s right foot fell through the formwork that he was preparing for concreting a distance of 40cm after he stepped on a rio bar which gave way. This evidence has not been challenged. This is a significant distance. The evidence is silent on what the applicant’s right knee impacted however it is not difficult to accept that a fall of 40cm into formwork after stepping on a rio bar that gave way resulted in an impact to the medial aspect of the right knee and also resulted in the applicant falling to his right side onto his right hand, right hip and right shoulder and I accept the applicant’s history of injury in this respect. It is important at this point to note the history of injury taken by Dr Lieu, the orthopaedic surgeon the applicant was referred to by Dr Tjeuw for treatment of his right knee. In his first report dated December 2018 (see page 93 of the clinical notes from Dr Tjeuw) Dr Lieu records the following:
“He is a 67-year-old gentleman who sustained a valgus and twisting injury to his right knee 6 weeks ago.”
The additional information contained in Dr Lieu’s description of the mechanism of the injury to include the twisting of the right knee in addition to the impact to the medial side of the right knee adds further information to be considered by me when considering the applicant’s statement in relation to how he fell to his right side after his right foot dropped 40cm into the formwork. Furthermore, the applicant was not cross examined on his recollection of how the injury occurred that appears in his statement.
The respondent further submits that the absence of complaints of pain to any medical practitioner by the applicant in respect of his right shoulder between the date of accident and October 2019 supports the respondent’s submission that the applicant did not injure his right shoulder when he fell on 8 November 2018.
I do not accept this submission. It is apparent from the significant treatment the applicant received for his right knee as detailed in his statement and the reports from Dr Lieu that the applicant’s primary concern was the right knee injury.
I note the applicant has taken me to the decision of Davis v The Council ofthe City of Wagga Wagga [2004] NSWCA 34 in relation to the absence of complaints by the applicant in the clinical notes produced by Dr Tjeuw. I also note the comments made by Campbell J in Owen v Motor Accidents Authority ofNSW [2012] NSWSC 650 at [52] where his Honour stated:
“experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where there concern is with treatment or impact of an indisputable frank injury.”
On the balance of probabilities, I am persuaded on the evidence that the applicant did injure his right shoulder in the fall that occurred on 8 November 2018.
The applicant did not report the injury to his treating doctor at that time as his right knee injury was his main concern. He was having significant treatment from Dr Lieu and his physiotherapist Dr Leong. His right knee condition was not getting any better.
According to the applicant’s statement and Dr Tjeuw’s clinical notes, the applicant had been using crutches to ambulate as early as December 2018 and continued to use a crutch in February 2019 prior to the right knee surgery.
I acknowledge and accept that the applicant had sustained an earlier injury to his right shoulder in 2003. I do however accept the applicant’s submission that the applicant was able to return to full time work as a formwork labourer for 12 years after 2006. He had been able to work as a formwork labourer for the respondent since 2015. I accept the applicant’s submission that the work of a formwork labourer would be heavy work and the applicant would not have been able to do this type of work if he was still experiencing symptoms in his right shoulder since the accident in 2003.
I have also noted the MRI scan reports from 2006 and 2019. On the basis of these reports, I am satisfied that there has been a deterioration of the applicant’s right shoulder condition which I accept is as a result of the injury he sustained to his right shoulder on 8 November 2018 and further aggravated by the use of crutches and a walking stick for three months after the right knee surgery.
I accept the applicant’s explanation as to why he did not advise some of the doctors that he had seen in relation to his claim about the symptoms he experienced in his right shoulder as a result of the extended period that he required the use of crutches. Further to his explanation in relation to his absence of reporting the mechanism of injury to his right shoulder due to the use of crutches, I have accepted that the applicant injured his right shoulder in the fall on 8 November 2018. The applicant was required to use crutches after the right knee surgery. The respondent paid for the right knee surgery. At that time the applicant had no reason to explain why the pain in his right shoulder had increased as his claim had been accepted. It would have been helpful if the applicant had provided this further information however his non reporting of the reason his right shoulder pain had increased while he was using crutches and a walking stick is not fatal to his claim.
I do note in the clinical notes produced by Dr Tjeuw and the reports prepared by Dr Lieu, there are numerous entries recommending that the applicant stop using the crutches and the walking stick. The clinical notes are however silent on why Dr Lieu and Dr Tjeuw were advising the applicant to stop using the walking stick and the crutches.
In relation to the applicant’s claim that he aggravated his right shoulder while using crutches and a walking stick after the right knee surgery I accept the opinions expressed by Dr Popoff and Dr Dixon. Both Dr Dixon and Dr Popoff have agreed that the applicant’s right shoulder was aggravated by the use of the crutches and walking stick after the right knee surgery in May 2019.
In relation to the respondent’s submission that Dr Popoff’s opinion cannot be relied on as he did not take a history of the previous injury in 2003, I reject this submission. Although
Dr Popoff did not specifically refer to the previous right shoulder injury in 2003, he did acknowledge the underlying pre-existing degenerative changes in the applicant's right shoulder.

I do not accept the opinion expressed by Dr Rowe for the reasons I have already outlined above.
Neither party addressed me on s 9A of the1987 Act however in light of my findings in respect of injury, I find that the applicant’s right shoulder injury was substantially caused by his employment with the respondent.
In light of the above, I find that the applicant sustained an injury to his right shoulder on
8 November 2018 during the course of his employment with the respondent. I find that his employment with the respondent was a substantial contributing factor to the injury to his right shoulder. I also find that the applicant aggravated the right shoulder injury during the three-month period following the right knee surgery when he was using crutches and a walking stick.
I note the parties have already agreed that the right shoulder surgery proposed by Dr Popoff is reasonably necessary so I will not make an order in this respect.