Neemia v Busways Penrith Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Neemia v Busways Penrith Pty Ltd [2023] NSWPIC 678
APPLICANT:	Ali Neemia
RESPONDENT:	Busways Penrith Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	18 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum permanent impairment compensation pursuant to section 66; applicant had accepted injury to his cervical spine and right shoulder, sustained on 26 October 2021; whether the applicant sustained a consequential condition of the left shoulder as a result of the accepted injury to his cervical spine and right shoulder; Held – the applicant sustained a consequential condition of his left shoulder as a result of the accepted injury to his cervical spine and right shoulder, sustained on 26 October 2021; matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential condition of his left shoulder, as a result the accepted injuries to his cervical spine, and right shoulder sustained on 26 October 2021. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 26 October 2021 (with consequential condition). Body parts: cervical spine right upper extremity (shoulder) left upper extremity (shoulder) TEMSKI/scarring Method: whole person impairment. 3. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attachments; (b) Reply to Application to Resolve a Dispute and attachments, and (c) Application to Admit Late Documents and attachments.

STATEMENT OF REASONS

BACKGROUND

Ali Neemia (the applicant) injured his cervical spine and right shoulder in the course of his employment as a bus driver with Busways Penrith Pty Ltd (the respondent) on 26 October 2021.
The respondent admitted liability for the applicant’s cervical spine injury and right shoulder injury on 26 October 2021 (the accepted injuries).
The applicant underwent spinal surgery, in the form of right C5/6 foraminotomy and decompression (the surgery), on 16 December 2021.
The applicant made a claim for lump sum permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for total 33% whole person impairment (WPI) from injury on 26 October 2021 in respect of injury on 26 October 2021 to the cervical spine and the right shoulder, with consequential condition of the left shoulder. It was calculated on the basis of 22% WPI to the cervical spine, 12% WPI of the right shoulder and 3% WPI of the left shoulder, in accordance with the assessment of Dr Mark Ridalgh, consultant neurologist.
The respondent disputes liability for the claim of consequential condition of the left shoulder.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a conciliation conference and arbitration hearing on 23 November 2023, the applicant was represented by Ms Sue Bowrey, solicitor of Bowrey Lawyers. The respondent was represented by Mr Josh Beran of counsel, instructed by Mr Stephen Lott of Hall & Wilcox Lawyers.
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.

ISSUES FOR DETERMINATION

The respondent accepted injury to the applicant’s cervical spine injury and right shoulder injuries, with a date of injury of 26 October 2021.
The parties agree that the accepted injuries should be remitted to the President for referral to a Medical Assessor for assessment of WPI pursuant to ss 65 and 66 of the 1987 Act. The issue for determination concerns the nature and extent of such referral.
The following issues remain in dispute:
(a) whether the applicant sustained a consequential condition of his left shoulder, and
(b) the extent and quantification of the applicant’s entitlement to permanent impairment lump sum compensation.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) with attached documents;
(b)    Reply to Application to Resolve a Dispute (Reply to ARD), and
(c)    Application to Admit Late Documents (AALD) with attached documents, lodged by the applicant.

Oral evidence

No party applied to adduce oral evidence nor cross-examined any witness.

Applicant’s statement

The applicant gave evidence by way of a written statement dated 5 September 2023.
The applicant stated that he injured his neck and right shoulder in the course of performing his work duties as a bus driver for the respondent on 26 October 2021.
The applicant stated that he suffered ongoing pain and symptoms as a result of the accepted injuries and he detailed various medical attendances, investigations and treatment of his injuries.
The applicant stated that he underwent a right C5/6 foraminotomy and decompression surgery, performed by Dr Shanu Gambhir on 16 December 2021.
The applicant stated that he has nevertheless continued to experience severe ongoing pain.
The applicant stated that through 2022, he was treated by Dr Deshpande, pain management specialist and consultant anaesthetist with right brachial plexus block and right suprascapular block injections, however that only worsened his pain.
The applicant stated that, because of his injury, he was required to use his left arm for everything, including personal care, shopping, eating and driving a car. The applicant stated that his left shoulder became stiff and sore and he was diagnosed with frozen left shoulder.
The applicant stated that he also consulted Dr Moopenar and Dr Charles New, orthopaedic specialist, in early 2023. The applicant underwent further injections in his neck and right shoulder in early 2023 however they did not provide any significant relief. Dr New recommended that the applicant undergo carpal tunnel surgery however he has not had such surgy after the insurer disagreed.
The applicant stated that he now has constant neck pain and experiences pain and restricted movement of both his right shoulder and his left shoulder.

Treating medical evidence

The various treating medical evidence includes various correspondence, reports and other clinical records in relation to investigations and treatment of the applicant’s various pain and symptoms.
The treating medical evidence is not in dispute and I accept the following relevant medical history which is disclosed by the evidence:
(a)    the applicant attended Dr Andy Huang of the Emerton Medical Centre on 27 October 2021 (which was the day immediately following the accepted injuries) and reported right sided neck pain and right shoulder pain. Dr Huang diagnosed muscular pain;
(b)    the following day, 28 October 2021, the applicant again consulted Dr Huang and reported worsening pain in his neck and upper back and difficulty driving. Dr Huang diagnosed muscular strain of the right side of the neck, upper back and right shoulder;
(c)    on 1 November 2021, Dr Huang reported that the applicant had undergone three physiotherapy sessions however he experienced ongoing pain and restriction of movement in his cervical spine and right shoulder and numbness in the fingers of his right hand. Dr Huang stated that clinically, the applicant’s symptoms were more consistent with muscular strain although he requested imaging;
(d)    on 3 November 2021, Dr Huang reported that the applicant was experiencing worsening pain from his neck to right shoulder to right elbow and right thumb. Dr Huang noted that a CT of the cervical spine showed low-grade multi-level disc bulges, especially at C5/6 and C6/7. Dr Huang recorded that the applicant was in distress with pain and still experienced reduction in movement of the cervical spine and right shoulder;
(e)    on various subsequent occasions during November 2021, Dr Huang recorded that the applicant reported ongoing pain and, on some occasions, limited movement of his neck and right shoulder;
(f)    on 27 November 2021, Dr Huang, for the first time, recorded that the applicant also reported symptoms on his left arm. There is no evidence that the applicant experienced any left arm or shoulder symptoms prior to that time;
(g)    on 29 November 2021, Dr Huang recorded that the applicant’s neck and right upper extremity pain and numbness had not improved after cortisone injection. Dr Huang stated that it was also starting to affect the applicant’s right shoulder movement and there were also some early symptoms over the left side of his arm as well;
(h)    an MRI Cervical Spine on 2 December 2021 showed multi-level abnormalities of the applicant’s cervical spine, with the most significant changes at C5/6;
(i)    on 2 December 2021, Dr Huang recorded that the applicant still experienced pain over his neck, and right shoulder which radiated down to his right hand. Dr Huang stated that the applicant was also experiencing pain over the left shoulder/arm and upper back “likely from overcompensating”. Dr Huang recorded that the applicant had a reduced range of movement of his cervical spine and right shoulder;
(j)    on 7 December 2021, Dr Shanu Gambhir, neurosurgeon and spine surgeon, reported on his review of the applicant. Dr Gambhir recorded a history of injury on 26 October 2021 when the applicant experienced “sudden onset of excruciating neck pain. It was mainly radiating down his right arm but also behind his left shoulder blade”. Dr Gambhir stated that the applicant had severe right arm radiculopathy;
(k)    on 16 December 2021, the applicant underwent right C5/6 foraminotomy and decompression surgery under the hand of Dr Gambhir;
(l)    on 6 January 2022, Dr Huang recorded that the applicant did not feel any significant improvement after the operation and he still had significant pain, which was worse over his right shoulder and the back of his neck;
(m)     on 19 January 2022, Dr Huang recorded that the applicant had a painful and weak right upper arm. Dr Huang stated that the applicant was “unable to hold a cup” with his right hand and only minimal movement of his right shoulder was possible due to pain and stiffness;
(n)    on or about 6 February 2022, the applicant received inpatient treatment at the Mount Druitt Hospital for severe shoulder pain;
(o)    on 10 February 2022 a CT of the cervical spine showed no complicating feature in relation to the surgery and no central disc herniation or critical central canal stenosis;
(p)    on 14 February 2022, Dr Gambhir reported that, two months post the surgery, the applicant reported having less pain and greater movement following the surgery;
(q)    on 25 February 2022, A/Professor Nimeshan Geevasinga reported that the applicant had significant right upper limb discomfort and some weakness in finger abduction. A/Professor Nimeshan Geevasinga reported that the applicant held his right arm “gingerly through the consultation”;
(r)    on 26 April 2022, Dr Chambhir reported that the applicant still had right sided shoulder abduction weakness and radicular pain going down his right arm;
(s)    on or about 8 May 2022, the applicant received inpatient treatment at the Mount Druitt Hospital for severe shoulder pain;
(t)    on 12 May 2022, Dr Sushama Deshpande, interventional pain specialist, reported that the applicant had right arm pain and paraesthesia and had required emergency admission to the Mount Druitt Hospital and analgesia;
(u)    on or about 24 May 2022, the applicant received inpatient treatment at the Mount Druitt Hospital for severe shoulder pain;
(v)    on 31 May 2022, Dr Deshpande, reported that the applicant had right shoulder and arm neuropathic pain and his right hand was supported by a sling;
(w)   on 8 June 2022, an MRI Right Shoulder showed severe osteoarthritis of the AC joint, subacromial bursitis and tendinopathy and intrasubstance fissuring of the supraspinatus tendon;
(x)    on 16 June 2022, Jethro Abdon, exercise physiologist, stated that the applicant reported significant right arm pain when his arm was moving, weakness, poor range of movement and that his right arm needed to be supported. Mr Abdon stated that the applicant reported that his “uninjured left arm has started to get some onset pain as well”;
(y)    on 23 June 2022, Dr Eugene Ng reported on the results of an ultrasound of the applicant’s left shoulder. Dr Ng noted a clinical history of four weeks of shoulder pain and marked reduced range of motion. Dr Ng reported that tendinotic change was seen of the supra spinatus and infraspinatus tendons of at least moderate degree with some reactive subacromial bursitis. Noting the marked restriction of range of motion, Dr Ng reported a possibility of adhesive capsulitis. Dr Ng suggested a trial of ultrasound-guided steroid injection into the subacromial bursa first and, if there was no significant improvement, hydrodilation and steroid injection under CT guidance with post-procedure rehabilitative physiotherapy;
(z)    on 29 June 2022, Dr Huang requested that the applicant undergo a cortisone injection of his left shoulder. Dr Huang noted a clinical history of greater than five weeks of progression left shoulder pain with a global reduction in the range of movement. Dr Huang noted that an ultrasound had “revealed changes of bursitis/tendinitis and adhesive capsulitis”;
(aa)    on or about 29 June 2022, the applicant underwent a cortisone injection to his left arm which was covered by Medicare as it was not approved by the insurer;
(bb)    on 5 July 2022, the applicant underwent a nerve block procedure in respect of his right shoulder;
(cc)     on 18 July 2022, Dr Deshpande reported that the applicant’s shoulder had no benefit from a nerve block procedure and the applicant was frightened to move his right shoulder. Dr Deshpande stated that there is significant fear avoidance and he was concerned that the applicant’s right shoulder may develop adhesive capsulitis and frozen shoulder;
(dd)    various Certificates of Capacity certified that the applicant had no current capacity for work as a result of the accepted injuries between February and September 2022. A Certificate of Capacity issued on 22 August 2022 also noted “US L shoulder”.
(ee)    on 15 November 2022, the applicant was referred to Dr Terence Moopanar for assessment of his right shoulder;
(ff)    on 1 February 2023, Dr Moopanar reported that, following the laminectomy on the cervical spine in 2021, the applicant had experienced debilitating pain in the right neck and trapezial area;
(gg)    on 27 February 2023, Dr Charles New, orthopaedic specialist, reported that the applicant had continuing debilitating neck and right arm pain, markedly reduced range of movement in his cervical spine, difficulty moving his shoulder and reduced grip strength. Dr New referred the applicant for further investigations;
(hh)    on 27 March 2023, Dr New reported that the applicant “has bilateral carpal tunnel syndrome on the back of his known cervical and shoulder pathology, and has chronic pain. He will require bilateral sequential carpal tunnel releases” and he requested approval for such surgery;
(ii)    on 17 April 2023, Dr New reported that the applicant “has not had much success with his neck injections. The cervical pain is still causing him problems, but he does have symptoms of significant carpal tunnel syndrome, the right side being worse than the left”. Dr New proposed to follow up regarding his request for approval for surgery for the applicant’s carpal tunnel syndrome;
(jj)    on 21 April 2023, Dr Huang reported that the applicant “has been suffering from ongoing left shoulder pain since 2022 as a result of his right shoulder condition. He has to rely on using his left shoulder more often due to his chronic right shoulder pain which has been present for over 18 months”, and
(kk)     the applicant underwent regular physiotherapy treatment between November 2021 and September 2023. On 20 September 2023, Hai Le, physiotherapist, reported that the applicant was “progressing slowly” and still had pain and restricted movement.

Independent medical evidence

Dr Mark Ridhalgh, orthopaedic surgeon

Dr Ridhalgh provided an independent medical opinion, qualified by the applicant.
In a report dated 20 March 2023, Dr Ridhalgh stated that the applicant’s left shoulder condition has been a consequence of the right shoulder condition. Dr Ridhalgh stated that the applicant’s right arm was almost useless and he cannot use it for activities of daily living. Dr Ridhalgh said that the applicant had been unable to use his right upper limb for 18 months and was using the left upper limb more often without the assistance of the right arm. Based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th edition (AMA Guides) Dr Ridhalgh assessed total 33% WPI, calculated on the basis of 22% WPI of the cervical spine, 12% WPI of the right shoulder and 3% WPI of the left shoulder.

Dr Stephen Rimmer, orthopaedic surgeon

Dr Rimmer provided an independent medical opinion, qualified by the respondent.
In a report dated 25 August 2022, Dr Rimmer noted that the applicant described right shoulder pain and decreased range of movement and numbness in his right little finger. Dr Rimmer stated that the applicant reported that “As the result of overcompensating with his left shoulder, he describes the gradual onset of pain and has required two cortisone injections to the left shoulder with good beneficial effect...”. Dr Rimmer reported that the applicant claimed that his activities of daily living had not been affected and “that he can drive left handed”.
In a supplementary report dated 2 November 2022, Dr Rimmer stated that, based on “an essentially normal MRI scan of the cervical spine dated 2 October 2022 in conjunction with the normal MRI scan of the brachial plexus dated 10 December 2021”, he predominantly diagnosed “abnormal illness behaviour”. On that basis, Dr Rimmer did not believe that the applicant had any physical incapacity.

Dr Ron Haig, orthopaedic surgeon

Dr Haig provided an independent medical opinion, qualified by the respondent.
In a report dated 15 June 2023, Dr Haig recorded that the applicant has continuing pain in the right shoulder and right side of his neck and a global reduction of movement in the right shoulder. Dr Haig stated a diagnosis of right-sided cervical disc prolapse. Dr Haig also diagnosed right frozen shoulder, which he believed to be unrelated to any work injury. Dr Haig was not convinced that the applicant has a carpal tunnel syndrome. Dr Haig stated that he believed that the applicant exhibited abnormal pain behaviour. Dr Haig stated that the applicant was “nursing” his right upper extremity and the applicant removed his upper garments “essentially left-handedly only”.
In relation to a left shoulder consequential condition, Dr Haig stated that:
“I do not believe any left shoulder complaint has resulted as a consequence of the right shoulder condition. There is no high level evidence to this effect of ‘other side pathology’. In this regard I would like to quote from the ‘AMA Guides to the Evaluation of Disease and Injury Causation’ (2^nd Edition), page 766 where it is stated ‘In summary the articles reviewed do not support ‘favouring’ as a reasonable cause for development of symptoms in the contralateral shoulder...’” (emphasis in original)
In a supplementary report dated 27 July 2023, Dr Haig expressed his opinion that the applicant’s employment and the incident on 26 October 2021 was a substantial contributing factor to the applicant’s neck condition. Dr Haig stated that 10% WPI deduction would be appropriate due to prior complaints of neck pain.

SUBMISSIONS

Applicant’s submissions

In summary, the applicant’s submissions were that:
(a)    there is no evidence of any left shoulder condition prior to the accepted work injury;
(b)    the applicant’s evidence and the treating medical evidence supports a finding that the applicant has a left shoulder condition and, further, that it is a result of overuse of the left arm as a consequence of the accepted injury to the right shoulder;
(c)    the Commission should prefer and accept the opinion of Dr Ridhalgh to the effect that the applicant has a left shoulder condition which is a consequence of the right shoulder condition, and
(d)    there is no evidence of any alternative hypothesis which satisfactorily explains the applicant’s left shoulder condition.

Respondent’s submissions

In summary, the respondent’s submissions were that:
(a)    there is no evidence of any left shoulder pathology or diagnosis;
(b)    there is no evidence that the applicant engaged in heavy, arduous or repetitive activities which place stress on his left shoulder;
(c)    Dr Gambhir noted that the applicant reported pain radiating from his neck to left shoulder, which is inconsistent with a left shoulder consequential condition;
(d)    some medical evidence refers to the applicant not using his left shoulder, which is inconsistent with a left shoulder consequential condition due to overuse;
(e)    there is only very limited evidence of reported left shoulder symptoms in the treating evidence and they should be given little weight;
(f)    the Certificates of Capacity are of no probative value and should be given little weight;
(g)    Dr Ridhalgh’s opinion that the applicant has a left shoulder consequential condition should not be accepted because it has no sound basis. Dr Ridhalgh did not record any left shoulder symptoms with the exception of limited range of movement. Dr Ridhalgh did not state any diagnosis of a left shoulder consequential condition and did not examine any radiology of the left shoulder. Further Dr Ridhalgh did not state any diagnosis of the right shoulder that was the underlying cause of a left shoulder consequential condition. Although Dr Ridhalgh provided an assessment of WPI in relation to the left shoulder, that is not supported by the contents of his report;
(h)    Dr Rimmer stated that the applicant’s left shoulder was normal on examination and, further, he did not diagnose any left shoulder condition;
(i)    Dr Haig’s opinion should be preferred because he referred to scientific evidence to support his opinion that no left shoulder complaint resulted as a consequence of the right shoulder condition;
(j)    although a consequential condition does not require a diagnosis, pathology is required;
(k)    the medical evidence does not support a finding of a left shoulder condition, and
(l)    further, the evidence does not support a finding that any left shoulder condition is consequential on the accepted right shoulder injury.

Applicant’s submissions in reply

In summary, the applicant’s submissions in reply were that:
(a)    there is a diagnosis of left shoulder bursitis, tendonitis and restriction of movement, which is supported by imaging;
(b)    medical evidence clearly shows that the applicant has a soft tissue condition of his left shoulder;
(c)    the applicant’s evidence is not in dispute and his evidence should be accepted;
(a)    Dr Haig did not dispute the existence of a left shoulder condition, he just disputed that any such condition was a consequence of the applicant’s work injury;
(b)    there is no evidence of any alternative explanation for the applicant’s left shoulder condition, and
(a)    the evidence supports a finding in favour of the applicant.

FINDINGS AND REASONS

The law

It is not necessary for the applicant to establish that a consequential condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act nor that the employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act. In Moon v Conmah Pty Ltd,[1] Deputy President Roche stated at [45]-[46]:[2]
“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.”
[1] [2009] NSWWCCPD 134.
[2] See also Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, at [61].
In Bouchmouni v Bakhos Matta t/as Western Red Services,[3] Deputy President Roche stated:
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions…
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’.”
[3] [2013] NSWWCCPD 4.
The applicable legal test of causation was set out by the Court of Appeal in Kooragang,[4] where Kirby P (as his Honour then was) stated:
“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.”[5]
[4] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[5] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated 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. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[6] raised some concerns about the common sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common sense approach still has place in the application of the legislation to the present case.
[6] [2016] HCA 43, at [42].
The Court of Appeal in Nguyen v Cosmopolitan Homes[7] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[7] [2008] NSWC 246.
The applicant bears the onus of proof.

Consideration

The respondent has accepted that the applicant sustained cervical spine and right shoulder injuries on 26 October 2021.
The applicant’s credibility has not been disputed and the applicant was not cross-examined.
The applicant’s evidence in relation to his left shoulder is supported by certain treating medical evidence.
There is no evidence that the applicant experienced any left arm or shoulder symptoms prior to reporting left arm symptoms to Dr Huang on 27 November 2021, which is approximately one month after the applicant sustained the accepted injuries.
Whilst the treating medical evidence seems to have focused substantially on the accepted injuries, there is nevertheless some treating medical evidence which evidences the applicant’s reports of ongoing left shoulder symptoms.
In particular, the applicant’s reported left shoulder pain was noted by Mr Abdon, Dr Ng and Dr Huang in June 2022. Reported ongoing left arm pain was also noted by Dr Huang and Dr New in April 2023.
The medical evidence indicates that the applicant underwent ultrasound and cortisone injection of his left shoulder in mid-2022.
The treating medical evidence fairly consistently shows, and I accept, that notwithstanding various conservative treatments and surgery since the accepted injuries were sustained on 26 October 2021, the applicant continued to experience significant ongoing pain and restrictions in his right shoulder, right arm and some numbness of the right fingers.
Dr Huang clearly was of the opinion that the most likely cause of the applicant’s ongoing left shoulder and arm symptoms in late November and in December 2021 was due to overcompensating. Further, on 21 April 2023, Dr Huang reported that the applicant “has been suffering from ongoing left shoulder pain since 2022 as a result of his right shoulder condition. He has to rely on using his left shoulder more often due to his chronic right shoulder pain which has been present for over 18 months”.
Notably, Dr Ridhalgh’s independent medical opinion is also that the applicant has a left shoulder condition which is a consequence of the right shoulder condition. It is apparent from Dr Ridhalgh’s assessment of WPI in relation to the left shoulder that he identified impairment of the applicant’s left shoulder. However, I accept that Dr Ridhalgh’s evidence is somewhat limited and did not include any specific diagnosis in relation to a left shoulder consequential condition.
Dr Rimmer did note that the applicant reported that “As the result of overcompensating with his left shoulder, he describes the gradual onset of pain and has required two cortisone injections to the left shoulder with good beneficial effect...”. Dr Rimmer reported that the applicant claimed that his activities of daily living had not been affected and “that he can drive left handed”. However Dr Rimmer stated that the applicant’s left shoulder was normal on examination, he did not diagnose any left shoulder condition and he did not believe that the applicant had any physical incapacity. I note that Dr Rimmer’s opinion in that regard seems to have been predicated, at least in part, on his overarching diagnosis of “abnormal illness behaviour” generally in relation to the accepted injuries.
Dr Haig relied upon AMA Guides to the Evaluation of Disease and Injury Causation’ (2^nd Edition) in support of his opinion that the applicant did not sustain a left shoulder consequential condition as a consequence of his accepted injuries. Notably however, Dr Haig’s opinion seems to be focused on any causal relationship and he did not specifically dispute the existence of a left shoulder condition.
I do not accept the respondent’s submission that there is no evidence of any left shoulder pathology or diagnosis. Turning to the treating medical evidence in respect of investigation and diagnosis of the applicant’s left arm and shoulder pain, I accept that on 23 June 2022, Dr Eugene Ng reported on the results of an ultrasound of the applicant’s left shoulder. Dr Ng noted a clinical history of four weeks of shoulder pain and marked reduced range of motion. Dr Ng reported that tendinotic change was seen of the supra spinatus and infraspinatus tendons of at least moderate degree with some reactive subacromial bursitis. Noting the marked restriction of range of motion, Dr Ng reported a possibility of adhesive capsulitis.
Further, I note that, consistent with the opinion and recommendation of Dr Ng, on 29 June 2022, Dr Huang requested that the applicant undergo a cortisone injection of his left shoulder. Dr Huang noted a clinical history of greater than 5 weeks of progression left shoulder pain with a global reduction in the range of movement. Dr Huang noted that an ultrasound had “revealed changes of bursitis/tendinitis and adhesive capsulitis”. I accept that the applicant subsequently underwent a cortisone injection of his left shoulder.
Dr Gambhir noted that the applicant reported pain radiating from his neck to left shoulder at or about the time of the accepted injury. I note that there is no other medical evidence to that effect. In any event, having regard to the evidence as a whole, I do not accept the respondent’s submission that it is necessarily inconsistent with a left shoulder consequential condition. Further, I do not accept that it precludes a finding that the applicant has a left shoulder consequential condition.
I do not accept that there is no evidence that the applicant engaged in particularly heavy, arduous or repetitive activities which placed stress on his left shoulder. The applicant’s evidence is that because of the significant ongoing pain and restrictions in his right shoulder and right arm, he was required to regularly use his left arm for activities of daily living. The applicant stated that, because of his injury, he was required to use his left arm for everything, including personal care, shopping, eating and driving a car. The applicant’s evidence in that regard is supported by the evidence of Dr Huang who stated in April 2023 that the applicant “has been suffering from ongoing left shoulder pain since 2022 as a result of his right shoulder condition. He has to rely on using his left shoulder more often due to his chronic right shoulder pain which has been present for over 18 months”. I note that this is also somewhat consistent with Mr Adbon’s evidence which indicates that the applicant started to experience pain in his left arm in the context of the applicant’s ongoing right shoulder and arm symptoms which required the applicant to support his right arm.
The applicant’s evidence in that regard is further supported by Dr Ridhalgh’s evidence that the applicant’s right arm was almost useless and he could not use it for activities of daily living. Dr Ridhalgh said that the applicant had been unable to use his right upper limb for 18 months and was using the left upper limb more often without the assistance of the right arm. Further, Dr Rimmer reported that the applicant claimed that his activities of daily living had not been affected and that “he can drive left handed”.
I do not accept the respondent’s submission that some evidence refers to the applicant not using his left shoulder, which is inconsistent with the development of a left shoulder consequential condition due to overuse. I note that the applicant stated that, because he was required to use his left arm for everything, his left shoulder became stiff and sore and he was diagnosed with ‘frozen left shoulder’. However, this evidence seems to support the applicant’s case. There is no other evidence that supports a finding that the applicant did not significantly rely on his left arm to perform activities of daily living as a consequence of pain and restrictions in his right arm and shoulder since he sustained the accepted injuries.
Having regard to the evidence and in the circumstances of the applicant’s significant ongoing right shoulder and right arm pain and restrictions, I accept that the applicant did regularly use his left arm for activities of daily living which included activities such as driving a vehicle. Further, I accept that would have placed additional stress on the applicant’s left shoulder.
Whilst I accept that the medical evidence is somewhat limited, I prefer and accept the opinion of Dr Ridhalgh to the effect that the applicant has a left shoulder condition which is a consequence of the right shoulder condition. In the context of the evidence as a whole, I consider that Dr Ridhalgh’s evidence provides a logical and most likely explanation for the applicant’s reported ongoing left arm and left shoulder symptoms and the imaging of the left shoulder.
I note that there is no evidence of any alternative hypothesis which satisfactorily explains the applicant’s left shoulder condition.
Considering the evidence as a whole, I am satisfied on the balance of probability that the applicant experienced significant and ongoing pain and disability of his right arm and shoulder as a result of the accepted injuries. I am satisfied that, in turn, led to the overuse of the applicant’s right arm to perform activities of daily living including driving. Further, I accept that the applicant has experienced pain and restrictions of his left arm and left shoulder and has pathology which supports a diagnosis of right shoulder bursitis/tendinitis and adhesive capsulitis, for which the applicant received treatment.
Applying the commonsense test to evaluate the causal chain, having regard to the evidence as a whole, I am satisfied on the balance of probabilities and find that the applicant sustained a left shoulder condition and that a clear causal connection exists between that left shoulder condition and the accepted injuries. Accordingly, I am satisfied that the applicant sustained a left shoulder consequential condition which resulted from the accepted injuries.
On that basis, I am satisfied that the applicant has discharged its onus of proof and that the applicant sustained a consequential condition of his left shoulder, as a result the accepted injuries to his cervical spine, and right shoulder sustained on 26 October 2021.

Referral to a Medical Assessor

Having made these findings, it is appropriate for me to remit the matter to the President to be referred to a Medical Assessor for an assessment of WPI in respect of the relevant injuries and consequential condition, with a date of injury of 26 October 2021.
All of the materials admitted in the proceedings will be included in the referral.

SUMMARY

Accordingly, I make the following finding:
(a) the applicant sustained a consequential condition of his left shoulder, as a result the accepted injuries to his cervical spine, and right shoulder sustained on 26 October 2021.
Accordingly, I order as follows:
(a)    the matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:        26 October 2021 (with consequential condition).
Body parts: cervical spine
right upper extremity (shoulder)
left upper extremity (shoulder)
TEMSKI/scarring
Method:                  whole person impairment.
(b)    The materials to be referred to the Medical Assessor are to include:
(i)ARD and attachments;
(ii)Reply to ARD and attachments, and
(iii)AALD and attachments.

[2023] NSWPIC 678

18 December 2023