Parker and John Holland Pty Ltd (Compensation) - [2025] ARTA 2056

Parker and John Holland Pty Ltd (Compensation) [2025] ARTA 2056 (10 October 2025)

Applicant:Brendan Parker
Respondent: John Holland Pty Ltd
Tribunal Number: 2023/0919

Tribunal:Senior Member G McCarthy
Place:Canberra
Date:10 October 2025
Decision:

The decision under review is affirmed.

……………[SGD]…………………..
Senior Member G McCarthy
Catchwords

COMPENSATION – accepted compensable condition, ‘labral tear and capsulitis of the left shoulder’ suffered when applicant tripped on a hose, fell to the ground and jarred his left shoulder in the course of his employment on 20 October 2009 – compensation paid for medical expenses, incapacity for work and household and attendant care services – reviewable decision denying liability from 10 November 2022 because the applicant had ceased to suffer the effects of the compensable injury on and from that date – consideration of Tribunal’s need to be satisfied the applicant is no longer entitled compensation – consideration of applicant’s claim of ongoing adhesive capsulitis (frozen shoulder) and chronic pain arising from the accepted injury – no liability for adhesive capsulitis because Tribunal satisfied it does not exist or, if it does exist, satisfied it does not arise out of the index injury – no liability for chronic pain because no accompanying diagnosis for the pain and, if it exists, satisfied it does not arise out of the index injury – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 s 37
Administrative Review Tribunal Act 2024 s 23
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, Sch 16

Safety, Rehabilitation and Compensation Act 1988 – ss 5A, 16, 19, 29
Cases
Abrahams vTelstra Corporation Limited [2022] FCA 95
Beezley v Repatriation Commission [2015] FCAFC 165
Brackenreg v Comcare [2010] FCA 724
Brazel and Australian Postal Corporation [2007] AATA 1264
Comcare v Power [2015] FCA 1502
Comcare v Nichols [1999] FCA 209
D’Amico and Comcare [2018] AATA 54
Ellison v Comcare [2022] FCA 95
Gregory v Comcare [1994] FCA 4
Hatzimanolis v ANI Corporation Limited [1992] HCA 21
HNGN and Military Rehabilitation and Compensation Commission [2018] AATA 4096
Lang v The Queen [2023] HCA 29
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Perich and Secretary, Department of Social Services [2018] AATA 963
Telstra Corporation Limited v Bowden [2012] FCA 576
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Williamson and Comcare [2019] AATA 4774
Woodhouse v Comcare [2021] FCAFC 95
Statement of Reasons

This matter arises from a decision of the respondent made on 22 December 2022,[1] that the applicant was not entitled to compensation payments under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) from 10 November 2022 because he had ceased to suffer from the effects of an accepted work-related injury suffered on 20 October 2009.
[1] T750/2122

Legal background

On 27 October 2009, the applicant lodged a claim with the respondent for compensation under the SRC Act for an injury he described as ‘strain left shoulder’.[2]
[2] T11/62
On 24 December 2009, the respondent accepted liability under s 14 of the SRC Act for ‘soft tissue injury to left shoulder,’[3] later re-described as ‘labral tear and capsulitis of the left shoulder’ (the Injury).[4]
[3] T16/82
[4]T750/2122 at [5]
Between 20 October 2009 and 10 November 2022, the respondent paid the applicant compensation for the cost of medical treatment obtained in relation to the Injury pursuant to s 16 of the SRC Act, compensation for incapacity for work as a result of the Injury pursuant to s 19 of the SRC Act and compensation for household and attendant care services pursuant to s 29 of the SRC Act.
On 10 November 2022, the respondent determined the applicant had ceased to suffer the effects of the Injury and, as a consequence, was not entitled to compensation under s 16 or s 19 of the SRC Act from that date.[5]
[5] T747/2099
Arising from the applicant’s request for review of that determination,[6] by decision made on 22 December 2022 the respondent confirmed it was not liable to pay compensation under s 16 or s 19 of the SRC Act from 10 November 2022 and varied the determination by deciding it was also not liable to pay compensation for home help and gardening services under s 29 of the SRC Act from that date (the reviewable decision).[7]
[6] T748/2119
[7] T750/2122
On 14 February 2023, the applicant applied to the Administrative Appeals Tribunal (the AAT) for review of the reviewable decision.
On 14 October 2024, this Tribunal was established and the AAT ceased to exist. Pursuant to Schedule 16, Part 5, item 24 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, the Tribunal is empowered and required to hear and determine the applicant’s application.
The documents filed in this proceeding pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), equating to s 23 of the Administrative Review Tribunal Act 2024 (the ART Act), and later tendered as evidence in this proceeding (the T documents)[8] exceeded 3,000 pages nearly all of which were medical records. In this circumstance, I proposed to the parties that in considering their respective cases I did not intend to and would not be obliged to look at documents within the T documents to which neither party referred. Both parties agreed that was a “sensible approach”.
[8] Exhibit R1
In these reasons, I have referenced where possible T documents on which I have relied. It should not be inferred from my not referencing a T document to which a party referred that I did not consider it. I have focused on the evidence relevant to my decision.

Factual and medical background

The applicant was born on 14 March 1976.
On 20 October 2009, when he was 33 years old, the applicant was employed by the respondent. On that day, he was working as a welder at the respondent’s North Melbourne workshop. His work involved manoeuvring pieces of railway track to be welded together. The pieces of track were brought together using tools powered by hydraulic hoses.
Whilst doing this work, the applicant tripped over a hose. He fell to the ground and jarred his left shoulder.
The applicant continued working and completed his shift. The next day, his shoulder was painful and so he saw Dr Mungi, a general practitioner, who wrote a ‘certificate of capacity’. Dr Mungi diagnosed “soft tissue injury of lt[9] shoulder” and a “need to rule out fracture”. Dr Mungi certified the applicant as “fit for modified duties”, stating that he was “not to lift any heavy weights” between 20 October and 28 October 2009.[10] Dr Mungi also referred the applicant for an x-ray of his shoulder, which was taken later that day (21 October 2009), and physiotherapy.
[9]‘lt’ should be understood as a reference to ‘left”
[10] T8/58
At hearing, Dr Mungi said he had taken over care of the applicant following Dr Dewhurst’s retirement, and that 21 October 2009 was the first time he had seen the applicant.
Dr Eng, a radiologist, provided a report of the results of the x-ray which stated:
Glenohumeral joint and acromioclavicular joint alignment is satisfactory. There is no joint erosion nor evidence of fracture. No calcification is visible within the rotator cuff interval.[11]
[11] T9/60
On 28 October 2009, Dr Eng conducted an ultrasound of the applicant’s left shoulder. Dr Eng provided a report of the results of the ultrasound dated 28 October 2009, sent to Dr Mungi, which stated:
1. Minor supraspinatus tendonopathy associated with a partial-thickness mid third intrasubstance tear.
2. Moderate subacromial bursitus with impingement.[12]
[12] T12/74
On 30 October 2009, Dr Mungi again saw the applicant. At hearing, Dr Mungi agreed he examined the applicant’s left shoulder. He then wrote a consultation note to record his findings, which were:
Feels well
Full ROM of the lt shoulder minimal pain.
adv to r/v [b]y physio.
[13] T752/2217
Fit to go back to work.[13]
On the same day, arising from his consultation, Dr Mungi wrote another ‘certificate of capacity’ in which he certified the applicant was “fit for normal duties” from that date, with work restrictions “nil”. Dr Mungi diagnosed the injury as “rotator cuff injury to the LT shoulder”.[14]
[14] T13/75
Notwithstanding Dr Mungi’s consultation note and certificate, the applicant gave evidence that his shoulder was still sore and that the pain continued to worsen as time went by.[15]
[15]Applicant’s witness statement, undated at [13]
On 26 November 2009, Dr Mungi wrote a report to the Claims Manager at “Self insured Services Australia” in which he reported on the applicant’s injury. Dr Mungi commented that when he saw the applicant on 21 October 2009, the applicant complained of acute pain in his right shoulder[16] and that further investigation revealed a tear of the supraspinatus muscle of his right shoulder which, in Dr Mungi’s opinion, “should get better with simple pain relief with anti-inflammatory.” [17] Dr Mungi then stated –
However on my follow up visit Brendan told me that he was completely pain free and ready to assume full duties.[18]
[16] I accept Dr Mungi’s reference to the applicant's right shoulder was a slip and should have been a reference to the applicant's left shoulder
[17] T 15/80
[18] T 15/80
There is no record of Dr Mungi seeing the applicant between 30 October and 26 November 2009. I therefore inferred Dr Mungi’s reference to the “follow up visit” to be a reference to the consultation on 30 October 2009.
There is no record of any further attendance by the applicant on a health practitioner until 12 January 2010 when Dr Mungi referred the applicant for physiotherapy to address “minor supraspinatus tendinopathy associated with partial-thickness mid third intrasubstance tear” in his left shoulder.[19] These words seem to have been drawn from the ultrasound report dated 28 October 2009.
[19] T 17/86
On 11 February 2010, a further ultrasound was conducted on the applicant’s left shoulder which involved “steroid and local anaesthetic injection into the bursa”.[20] Dr Eng reported this was done “without complication”.[21]
[20] T 20/89
[21] T 20/89
On 3 March 2010, the applicant saw Dr Dayananda, an orthopaedic surgeon. In his report dated 5 March 2010, Dr Dayananda stated the applicant’s symptoms “appear to be a supraspinatus injury”. He stated “there is secondary bursitis and impingement”. He referred the applicant for a magnetic resonance imaging scan (MRI scan) “to make sure there is no labral pathology.”[22]
[22] T 25/97
On 22 March 2010, the applicant underwent the proposed MRI scan. The report states by way of conclusion:
1.A tear of the anterior-superior glenoid labrum (SLAP tear)[23] is suggested.
2.Full thickness tear of the posterior third supraspinatus.
3.Minor infraspinatus tendinosis.[24]
[23] I understood the term ‘SLAP’ to be an acronym for superior labrum anterior to posterior and a SLAP tear to mean damage to the cartilage at the top part of the shoulder labrum
[24] T754/2398
On 30 March 2010, Dr Dayananda reported the results of the MRI scan to Dr Mungi.[25] Dr Dayananda stated he would proceed with an arthroscopy to repair the SLAP tear which, the applicant said, occurred the following day.[26] That is consistent with Dr Dayananda’s handwritten note setting out the details of the proposed operation which refers to “left shoulder arthroscopy” and a code number “48960”.[27] At hearing, Dr Allen explained that code number 48960 refers to an arthroscopic rotator cuff repair and associated.
[25] T756/2707
[26] Applicant’s witness statement undated at [19]
[27] T 26/99
It is also consistent with Dr Shannon’s reference to an operation report dated 1 April 2010 which, he said, “describes an acromioplasty and open repair of the rotator cuff and the labral tear.”[28] [29]
[28] T101/267 at 269
[29] The applicant said the operation occurred on 31 March, not 1 April 2010, but I do not regard that discrepancy as relevant
On 15 April 2010, Dr Dayananda provided another certificate of capacity in which he referred to the left shoulder surgery. He certified the applicant would be “fit for normal duties” from 19 April 2010 until 17 May 2010 with a work restriction of “no using left arm/no lifting above 90”.[30]
[30] T 38/129
The applicant stated that after the arthroscopy, the pain in his left shoulder did not really improve and so on 6 May 2010 he again saw Dr Dayananda who prescribed more “pain killers” and suggested he “gently restarts physiotherapy”.[31]
[31] Applicant’s witness statement undated at [20]; T41/135
On 19 May 2010, the applicant again saw Dr Dayananda who reported the applicant “is developing capsular contracture (which is in fact a frozen shoulder).” Dr Dayananda reported the applicant “needs urgent surgery in a form of manipulation arthroscopy capsular release plus debridement synovectomy.”[32]
[32] T 44/139
On 24 June 2010, Dr Dayananda performed the “capsular release” arthroscopy, “including release of the rotator interval and the anterior capsule and the anterior capsule”.[33] [34]
[33] T756/2715
[34] Applicant’s witness statement undated at [21]; T55/161
The applicant said that despite the second surgery, the pain in his shoulder returned as did “clicking” when he swung his arm and so he had further steroid (cortizone) injections on 18 August[35] and 15 September 2010.[36]
[35] Applicant witness statement undated at [22]; T69/183
[36] Applicant witness statement undated at [22]; T74/204
The applicant said that around this time he became upset and angry because his shoulder was not improving. He said that around this time he also “had some difficulties with unpaid fines and my brother-in-law died unexpectedly.” He said he was struggling mentally, began drinking more alcohol, overdosed on prescribed pain medications and was prescribed anti-depressants.[37]
[37] Applicant witness statement undated at [23]
Around this time, the applicant was seeing Mr Kumar, a musculoskeletal and sports physiotherapist, in relation to his left shoulder. In a report dated 11 October 2010[38] to the applicant’s general practitioner, nearly a year after the index injury, Mr Kumar reported the applicant’s left shoulder range of motion was gradually improving and he was able to use his left arm for more activities. He reported the applicant had 120° of flexion and 120° of abduction. At hearing, Mr Kumar explained flexion refers to lifting the arm forward, where 90° is horizontal and at 180° is vertical. He explained that abduction is lifting the arm to the side, where 90° is horizontal and 180° is vertical.
[38] Exhibit R5
In his report, Mr Kumar stated that it would take some time to achieve full external rotation, and at hearing agreed that (at the time) he thought it was achievable.
On 14 December 2010, the applicant again saw Dr Dayananda because of reported ongoing pain and weakness in his left shoulder. Dr Dayananda reported the applicant had “ongoing pain due to residual capsulitis and weakness of the rotator cuff muscles leading to secondary impingement of the shoulder”.[39] He organised another MRI scan, which was performed on 4 January 2011.
[39] T92/252
Dr Eng provided a report on the results of the MRI scan dated 4 January 2011 which stated:
Susceptibility artefact within the supraspinatus is consistent with recent surgery.
Taking past surgical susceptibility artefact into account, there is no visible tear of the subscapsularis infraspinatus or teres minor.
There is minor T2 hyperintensity within the supraspinatus consistent with minor tendinosis.
The long head of biceps tendon and biceps anchor are intact. The glenhumoral ligaments and posterior joint capsule appear intact. There is no marrow oedema within the proximal humerus or glenoid process of the scapula. Minor T2 hyperintense signal within the acromioclavicular joint is identified consistent with a small joint effusion (? related to previous surgery). There is no discrete chondral defect within the glenohumeral joint.
Conclusion:
The anterior superior labrum has been debrided since the previous surgery. There is no free intra-articular body.[40]
[40] T95/256
It would appear the MRI scan did not suggest anything was wrong from an orthopaedic viewpoint because on 12 January 2011 Dr Dayananda gave the applicant another cortisone injection into his shoulder and referred him for further physiotherapy.
On 28 January 2011, Dr Shannon examined the applicant at the request of the respondent for the purpose of assessing his fitness for work. He wrote a report dated 31 January 2011 in which he opined the applicant’s restriction of movement of his shoulder was consistent with adhesive capsulitis. Dr Shannon noted the report of the ultrasound in October 2009, the report of the MRI scan on 22 March 2010 and the report of the surgery on 1 April 2010 which “describes an acromioplasty and open repair of the rotator cuff and the labral tear.” He noted “subsequent arthroscopic surgery is reported to involve capsular release, bursectomy and synovectomy.”
Dr Shannon opined that the work-related injury “continues to contribute because the injury led to surgery which has been complicated by adhesive capsulitis.”[41]
[41] T101/267
On 11 April 2011 the applicant saw another orthopaedic surgeon, Dr Price. The applicant said he saw Dr Price for “a second opinion”.[42] Dr Price noted the applicant was taking high doses of oxycodone to manage the pain in his shoulder. On examination, Dr Price noted the applicant was in “obvious discomfort” due to pain in his shoulder. Dr Price stated he was unable to conduct some assessments because of the applicant’s inability to move his arm into appropriate positions but there was no evidence of injury. In his report dated 11 April 2011, Dr Price concluded:
I suspect that Brendan has chronic pain in the setting of a post operative stiff shoulder, as well as pain arising from his AC joint. I do not believe that further surgery at this point in time would offer significant improvement. I have given him an injection of cortisone and local anaesthetic into his AC joint in order to differentiate the source of his pain. I suspect this will improve some of his pain but certainly not all of it. I think it reasonable to have a hydrodilatation in an attempt to improve his stiffness. I do not think it it is possible to assess him at the moment for shoulder laxity/instability. I think it is very unlikely that he is experiencing this. Certainly, he needs a multidisciplinary approach and may benefit from attending a pain clinic.[43]
[42] Applicant witness statement undated at [26]
[43] T130/333
On 16 June 2011, the applicant underwent the proposed hydrodilatation procedure,[44] which mildly improved the range of motion in his left shoulder.[45]
[44] Applicant witness statement undated at [28]
[45] T160/425
On 30 June 2011, the applicant saw Dr Khan, a consultant physician, who noted the applicant was taking Oxycontin 20mg PO BD, Cymbalta 60 mg PO OD and Valium up to “3 per night for sedation 5mg PO nocte”.[46] Dr Khan noted the applicant was also taking Gabapentin at 300mg tds from which the applicant was receiving “no benefit”, presumably as reported by the applicant. Dr Khan recommended the applicant increase the dosage of Gabapentin to 600mg tds. He also suggested supra-scapular nerve block with Bupivacaine and steroid because “there is evidence that this improves pain and shoulder disability”.[47]
[46] T188/493
[47] T160/425
On 29 September 2011, the applicant again saw Dr Khan who noted the applicant’s ongoing neuropathic pain in his left shoulder; that the applicant was distressed at the lack of explanation for his ongoing pain; and that surgery, cortisone injections, hydrodilatation and supra-scapular nerve block had all been administered without success. Dr Khan recommended “at 2 years following his injury” the applicant should attend a cognitive behaviour group pain management approach and a change to his Oxycontin medication so that the higher doses were “skewed towards the evening to help relieve his nocturnal pain and sleep disturbance”.[48]
[48] T188/493

Commencing on 9 January 2012, the applicant attended a group pain management program in Ballarat run by the St John of God Hospital.[49] The course ran from 9 January to 2 April 2012. The report of the outcome of the program speaks positively of the applicant’s wish to return to work and meaningful duties, improved mood, decreased fear of pain from moving his arm and his intention to have further surgery on his shoulder to give him more movement.[50]
[49] T241/598
[50] T266/666
In March 2012, the applicant again saw Dr Price who noted the applicant “still has a painful stiff left shoulder and is on high doses of Oxycontin. He still has limited range of movement”. In his report dated 19 March 2012, Dr Price noted the option of further surgical intervention in the form of a shoulder arthroscopy to assess the shoulder in more detail, and to release any adhesions within the joint and the subacromial space. Dr Price opined the applicant would also benefit from releasing the anterior capsule.[51]
[51] T263/662
On 26 April 2012, the applicant saw Dr Cairns, a consulting orthopaedic surgeon, at the request of the respondent for the purpose of a medico-legal examination. In his report dated 2 May 2012, [52] Dr Cairns noted the surgeries and treatments of different kinds the applicant had received post the injury and the applicant’s advice that despite the treatment “there has been no change in the nature of his resultant left shoulder impairment”. He noted that despite the “combination of treatments Mr Parker reports absolutely no benefit.”[53]
[52] T272/688
[53] T272/692
Dr Cairns noted the applicant’s advice that he is in constant pain with intensity fluctuating from an estimated 6 to 8 on a scale of 1 - 10, provoked or aggravated by any attempt of movement of his left shoulder. He noted the applicant relies on medications including OxyContin, Cymbalta, Valium, Clonidine, Endone, Gabapentin, Panadol, Nexium and intermittent application of local heat packs.
Dr Cairns noted the applicant’s denial of any injury or impairment to his left shoulder prior to 20 October 2009 and of any subsequent incident that might have aggravated the injury.
Dr Cairns noted the conclusions from the ultrasound conducted on 28 October 2009, the x-ray on 29 October 2009, the MRI scan report dated 30 March 2010 and the operational reports of Dr Dayananda dated 30 March 2010 and 24 June 2010 and Dr Shannon’s report dated 31 January 2011 noted above.
Dr Cairns concluded:
In summary [the applicant] presents with history, clinical findings and imaging investigations consistent with having sustained a tear of the rotator cuff of his left shoulder sustained in a fall in the course of his employment on 20 October 2009, subsequently treated by arthroscopic acromioplasty and open repair of the rotator cuff and glenoid labrum on 1 April 2010, from which Mr Parker derived a poor result. Over the ensuing two years he has been treated by further surgical intervention on 24 June 2010, and a number of conservative modalities including hydrodilatation, nerve blocks, and most recently three months participation in a pain management course, from which combination of treatments Mr Parker reports absolutely no benefit.
In my opinion, the worker now presents with manifestations of adhesive capsulitis and chronic, non-specific regional pain dysfunction syndrome with signs of biopsychosocial potentiation and abnormal illness behaviour.[54]
[54] T272/688 at 692
On 21 June 2012, Dr Price carried out the surgery he had proposed in March 2012. Dr Price noted “full elevation”, “Subscap, SS and IS intact”, “no SLAP”, “labrum intact”, “no synovitis”, “minor adhesions released”, “no cuff tear” and “no subdeltoid adhesions”.[55]
[55] T288/719
In his report dated 11 July 2012 to Dr Dewhurst regarding the outcomes of the arthroscopy, Dr Price stated:
I found that whilst he was anaesthetised, I could passively externally rotate his shoulder to 80°. He was also able to achieve full elevation passively. His range of movement was completely normal whilst anaesthetised. An arthroscopic examination revealed his rotor cuff to be intact and his biceps tendon to be stable. There was no evidence of labral pathology and no synovitis. The subacromial space revealed some minor adhesions which I released but the bursal surface of his cuff was intact. I released the CA ligament to take pressure off this.
His wounds have healed well but he continues to have pain. His range of movement has not changed from his preoperative state.
Structurally, there is nothing I can improve on in terms of his shoulder. I think he needs to return to a physiotherapist and work on improving his overall function and ability to deal with the pain.[56]
[56] Exhibit R4
On 16 August 2012, the applicant again saw Dr Khan who recommended inpatient ketamine infusion to try and address the applicant’s high use of prescribed opioids. The ketamine infusion commenced on 7 October 2012.
On 5 February 2013, Dr Cairns provided a further report in relation to the applicant’s claim for permanent impairment under ss 24 and 27 of the SRC Act arising from an assessment made on 25 January 2013.[57] In his report, Dr Cairns refers to the arthroscopy conducted by Dr Price on 21 June 2012. He refers to “release of subacromial adhesions and coracoacromial ligament by Dr Price”. Dr Cairns states the applicant “was mobilised within a couple of days, but has derived no benefit from the procedure.”[58]
[57] T373/919
[58] T373/919 at 920
Dr Cairns stated the applicant’s presentation “was largely unchanged … with manifestations of abnormal illness behaviour of repeated grimacing while providing his history, and during physical examination.” He reported that throughout testing the applicant’s range of movement, the applicant “repeatedly grimaced, sighed and breathed heavily, commenting at completion of the activity that the left shoulder was 'burning like crazy’“.[59]
[59] T373/919 at 921
Dr Cairns reported he had no cause to change his “summary and assessment” in his earlier report dated 2 May 2012. He referred to the injury suffered on 20 October 2009, “subsequently treated by arthroscopic acromioplasty and open repair of the rotator cuff … complicated by adhesive capsulitis, and “treated by further arthroscopic surgery by Dr Price on 21 June 2012, with equally disappointing outcome.” He refers to “development of post-operative adhesive capsulitis, which has been resistant to subsequent treatment measures.” He stated “The clinical presentation is now also that of a chronic, non-specific regional pain dysfunction syndrome, also somewhat resistant to treatment undertaken thus far.”[60]
[60] T373/919 at 922
On 18 May 2015, the applicant attended the orthopaedics section at Bendigo Health Care consequent on a “complete tear of his AC joint”[61] in his right shoulder suffered three weeks earlier when he fell “whilst playing basketball”.[62] The notes record the medical officer deciding, after discussion with “Dr Jain”, “continue splint” and “R/V 6/12”, meaning review in six months.
[61] I understood AC joint to mean the acromioclavicular joint – see T754/2396
[62] T754/2395
At hearing, the applicant said he was not playing basketball. He said his children were playing basketball, and he was standing behind the backboard and bouncing the ball back to his children when they missed the board. He said he “tried to be a smarty pants” by doing a twist and push of the ball and fell on his right shoulder, but he was not doing any hoops or 3 point shots. The applicant denied using both arms whilst playing with his children. He stated he collected the ball and bounced it back to his children ‘one-handed’. He stated he was very grateful his right shoulder healed very quickly.
On 28 August 2015, the applicant attended on Dr Perera, an orthopaedic surgeon, at the request of the respondent for the purpose of a medico-legal examination. He prepared a report dated 17 September 2015.[63] Dr Perera reviewed documents as provided including the ultrasound and MRI scan reports and took a detailed history from the applicant.
[63] T514/1389
Dr Perera noted the applicant was taking Jurnista 16mg daily, Endone 5 mg three or four times daily, Lyrica 75mg twice daily, Nexium 20mg daily, Cymbalta 60mg daily, Valium 5 mg daily and up to 3 to 4 times daily if necessary and up to six Panadol Osteo daily.
Dr Perera noted the applicant’s reports that activities such as lifting, pushing and mopping made his shoulder burn. He reported the applicant stating it feels “like no tomorrow” and puts him to bed. He noted the applicant’s report that his shoulder “starts to burn if he sits for too long”. He noted the applicant’s comment that he recently had a cough and that it felt “like somebody shooting you with a nail gun”. He noted the applicant stating that if he sits for long every now and then he developed numbness in his fingers and around his shoulder and that pain travels up the left side of his neck causing headaches at the back of his skull. He reported the applicant describing a really bad pain at the back of his shoulder blade and that when he walks, he holds his arm up because when he relaxes “it feels as if it would fall out of the joint”.[64]
[64] T514/1393
On the subject of past medical history, Dr Perera noted the applicant stating he “has had no significant health issues in the past”, that “years ago” he had a tendon injury to the right finger of his right hand and “some years ago” he had a left carpal tunnel release operation. There is no mention of the applicant reporting his history of clinical depression which I deal with below.
Dr Perera noted the applicant “carries his left arm in a slightly abducted and internal rotated posture”, and that when he stands “he appears to elevate the left shoulder, probably because, as he said earlier, he feels that it would come out of its socket if he lets it hang down by his side.” Dr Perera noted “virtually no external rotation, and internal rotation allowing him to bring his left hand to hip pocket level”.
Dr Perera noted “examination of his wrist, forearm and hand showed essentially Grade 5 muscle power in all muscle groups” but that “attempting to carry out opposition-type movements in the hand seemed to cause increased pain around his shoulder. This appeared to be somewhat odd.”
Dr Perera noted there “did not appear to be any gross muscle wasting of the left shoulder girdle musculature and the circumference of his left upper arm was similar to the right.”[65] He said it was difficult to examine muscle strength because the applicant was reluctant to carry out any activities because it “seemed to stir up pain”.
[65] T514/1389
On the question whether the applicant was incapacitated for work, Dr Perera noted the applicant’s statement that he was not successfully redeployed into a leading hand role and him stating he has “spent virtually 2½ years of his life in a darkened room doing nothing.”[66]
[66] T514/1389 at 1402
Dr Perera concluded:
Mr Parker in my opinion currently suffers from a chronic ongoing pain syndrome affecting mainly his left shoulder.
He also has clinical evidence of an ongoing peri arthritis/frozen shoulder.
In addition he has developed significant depression and psychological problems.
I am of the opinion that his medical condition is related to the injury sustained on 20 October 2009.
Mr Parker continues to suffer from the effects of a labral tear and capsulitis of the left shoulder sustained on 20 October 2009. I am unable to predict when this problem will cease, because in spite of many and varied treatments to date his condition appears to have worsened rather than improved.[67]
[67] T514/1389
On 27 August 2015, the applicant attended an examination by Dr Cohen, a psychiatrist, at the request of the respondent. After noting the applicant’s reported history, Dr Cohen concluded:
He reported the development of chronic pain, multiple surgeries, pain management and high dose opiod treatment over some several years. He reported multiple losses incumbent on that including his employment, relationships and ongoing poor coping.
In my opinion, on the balance of probability, it is likely that Mr Parker’s adjustment disorder was contributed to by the injury sustained on 20 October 2009 ..
In my opinion it is unlikely that Mr Parker would have developed the current mental condition irrespective of employment.
It appears likely that Mr Parker will need ongoing treatment for his mental health condition indefinitely in the former psychotropic medication that being Cymbalta.[68]
[68] T515/1404
On 30 November 2017, the applicant attended an assessment by Dr Haig, a consultant orthopaedic surgeon, at the request of the respondent. Dr Haig provided a report dated 11 December 2017[69] in which he stated that on examination the applicant tended to “nurse” the left upper extremity of his left arm. Dr Haig reported “tenderness”, presumably on touch or by motion, to different parts of the arm. Dr Haig reported “range of motion showed flexion to about 30°, extension to about 30°, abduction to about 30°, adduction to about 15°, external rotation to about 15° and internal rotation was such that he could not reach the beltline.” Dr Haig stated he believed the applicant “has developed a chronic pain syndrome with regard to his left shoulder as a result of the original injury and what I would regard as failed shoulder surgery.” Dr Haig said his statement was “based on the history and my findings on examination.”
[69] T601/1619
Dr Haig added his concern about the many pain medications the applicant was taking and that many were narcotic/opioid in nature. He noted “the continued use of opioids has an ever-decreasing beneficial effect. I believe that is already the case with [the applicant] and he is likely addicted to it”.[70]
[70] T601/1626
On 6 October 2020, Dr Pastor, an addiction medicine specialist, reviewed the applicant with Dr Mungi via telehealth from Dr Mungi’s surgery.[71] Dr Pastor commented on the applicant’s “opiate use disorder” and that he has been “continuously on opioids for what sounds like at least 10 years.” Dr Pastor noted “he was typically maintained on between 160 mg and 200 mg of morphine equivalents and most recently has been on 60 mg of MS Mono.” Dr Pastor noted the applicant had been using “vapes nicotine” for approximately 6 to 7 years and drinks alcohol approximately six days a week, probably between “6 to 10 standard drinks on those six days.” Dr Pastor noted the applicant’s chronic pain has been “complicated by iatrogenic[72] opiate use disorder” and that it “remains difficult to see Mr Parker weaning from his MS Mono successfully in the short-to-medium term.”
[71]T7572835
[72] Meaning diagnosed
On 11 May 2022, Dr Pastor again reviewed the applicant over the telephone with regard to his chronic pain and opiate use disorder. He noted the applicant’s several medications “which had not been helpful”. He noted the applicant “had been at least over 10 years on high doses of opioids”. He noted that in May 2021, the applicant participated in an attempt to transfer “from morphine under ketamine infusion cover to buprenorphine” and that, “upon discussion” with the applicant, the trial “appears to have gone very poorly”. Dr Pastor thought it “is not unreasonable in this context for us to use MS Mono to both manage his pain as well as use it in doses sufficient to manage his iatrogenic opioid dependence.”
On or about 13 May 2022, Dr Blombery, a consultant physician, saw the applicant on referral from Dr Mungi. In his report of that date to Dr Mungi, Dr Blombery noted the applicant’s trials of buprenorphine and a ketamine infusion to try and reduce his opiate intake “with a good result”. He noted the applicant’s complaints of ongoing pain in his neck and left shoulder despite the use of different pain relief drugs. He noted the applicant also has “severe depression” and that he would be a good candidate to trial a further ketamine infusion “up to a fairly high dose”. Dr Blombery asked the respondent to fund the applicant’s hospitalisation for about nine days for the intravenous ketamine infusion. Dr Blombery reported the applicant “is spending only three or four hours per day out of bed at the moment.” [73]
[73] T 725/1979
It would seem, the respondent agreed to fund the further ketamine infusion because, by letter dated 5 August 2022, Dr Blombery reported to Dr Mungi that the applicant was admitted to hospital and had the ketamine infusion. Dr Blombery reported he gave the applicant “a month supply of MS Contin 10mg bd to go home with.”
On or about 3 September 2022, Dr Blombery had a telehealth consultation with the applicant in which the applicant reported he had “only three days of improvement in his pain after the ketamine infusion and his pain has now returned back to 8/10”.
On 30 September 2022, the applicant attended Dr Brazenor at the request of the respondent for the purpose of a medico-legal examination. In his report of that date,[74] Dr Brazenor noted the applicant’s medical history per documents provided to him, as summarised above. Dr Brazenor noted with “surprise” the applicant’s contention that he “cannot raise his left hand even to waist level, failing mainly in elbow flexion and supination”.[75] He noted the applicant’s comment “It’ll burn for the rest of today”, in response to Dr Brazenor’s attempt at supination[76] of the applicant’s are X’s left-hand “just to its limited range and not beyond”.[77] He noted the applicant’s claim that he could not reach behind him with his left hand and that internal and external rotation of his left shoulder was severely limited. Dr Brazenor opined this restriction of movement of the entire left upper limb is “inexplicable on the basis of a supraspinatus tendon tear”.
[74] T737/2034
[75] T737/2034 at 2084
[76] ‘Supination’ is a medical term meaning in this case to turn or revolve the applicant's hand so that the palm was facing upwards or outwards
[77] T737/2034 at 2084
Dr Brazenor opined that the applicant’s presentation was “not even remotely attributable to frozen shoulder, even a severe case thereof.”[78] Dr Brazenor opined the only injury was a tear of the left supraspinatus tendon, which is a common, relatively minor, recoverable injury and that his allegations of pain and disability were in many respects “clearly confabulatory” and in other respects “merely implausible”. Dr Brazenor opined the applicant –
can, at most, be suffering from slight restriction of movement of the left shoulder considering his very localised injury: tear of supraspinatus tendon, and the multiple surgical procedures he has received. The rest of his almost total physical disability is in my view because of the ruse that he perpetrates of total disability without organic cause.
..
The work-related injury has long-since healed, probably with some painless restriction of movement in the left shoulder joint. The last isotope bone scan dated 29 December 2020 showed no isotope uptake in the left shoulder joint. Any restriction of movement there is therefore certainly pain-free.[79]
[78] T737/2034 at 2085
[79] T737/2034 at 2086-7
By letter dated 24 October 2022,[80] Dr Mungi commented on Dr Brazenor’s report. Whilst acknowledging Dr Brazenor as “an excellent and very capable neurosurgeon”, Dr Mungi noted he is not an orthopaedic surgeon. He noted various specialists have examined the applicant and “no one has found his claims to be untrue”. He noted Dr Dayananda, as an experienced orthopaedic surgeon, assessed the applicant’s shoulder immediately after he suffered the injury and “deemed it to be important for this gentleman to have a surgical management of the injury”; that the applicant benefited from the surgery “even though it was for a very short while” demonstrated by his “brief return to work” and that unfortunately “he developed adhesive capsulitis as a complication of the surgery.” Dr Mungi opined that the applicant’s “current medical condition is secondary to a complication of the surgical procedure that was carried out to treat the workplace injury”. Dr Mungi opined the applicant is a person “of significant self-esteem, high work ethic and honesty.”
[80] T742/2103, Exhibit A4

Dr Brazenor, in a subsequent report dated 1 November 2022, commented on four further documents provided to him: Dr Dayananda’s letters dated 30 March and 18 August 2010; an IPAR ADL assessment dated 27 July 2015; and a letter from Dr Mungi dated 24 October 2022. Dr Brazenor described Dr Dayananda’s letters as “uninformative”; said the recommendations in the IPAR ADL assessment dated 27 July 2015 were “invalid” because they were based on information from the applicant which was “significantly confabulatory”; said the description in the assessment of a severe degree of disability was “entirely incompatible” with a rotator cuff tear; and said Dr Mungi’s letter “fails to explain Mr Parker’s progressive decline into total disability merely from a tendon injury in one shoulder.”
Dr Brazenor concluded by stating the further documents did not lead him to change the conclusions expressed in his previous report.

The applicant’s case

The applicant contended that from 10 November 2022 he continues to suffer from the “accepted injuries” and that compensation payments under ss 16, 19 and 29 of the SRC Act should continue because the Injury has resulted in his ongoing need for medical treatment, incapacity to work and need for household and gardening services.
At hearing, counsel for the applicant said the applicant was not contending he continued to suffer from the tear itself suffered on 20 October 2009. Rather, his claim for ongoing compensation arose from two claimed ongoing conditions arising from the Injury, namely adhesive capsulitis in his left shoulder and chronic pain. Counsel for the applicant described it as a “rearrangement of the pathology”.
Counsel also confirmed the adhesive capsulitis and chronic pain were each claimed as “an injury (other than a disease)”, as defined in s 5A(1)(b) of the SRC Act.
At hearing, the applicant also made clear he was not pressing the applicant’s claimed chronic regional pain syndrome (CRPS) as a condition arising from the Injury because, he said, it had only recently developed and the respondent had not had a reasonable opportunity to consider it.
The respondent submitted the Tribunal could not consider the claimed CPRS for reasons more than lack of opportunity to consider it. The respondent submitted it could not be considered in any event because it was an entirely different condition for which a claim for compensation had not been made, a decision had not been made and the Tribunal, therefore, did not have jurisdiction to consider it.
It was not necessary to consider CPRS because the applicant made clear he was not pressing it in this proceeding.
In addition to giving evidence himself, the applicant called Dr Mungi, Mr Moaveni, Mr Kumar and Dr Weekes.
Dr Mungi provided two reports on which the applicant relied: the report dated 24 October 2022 dealt with above and a report dated 8 August 2023.[81]
[81] Exhibit A3
In the latter report, Dr Mungi noted his treatment of the applicant since 21 October 2009 and some of the medical examinations, surgery and treatment that followed. Dr Mungi noted the ketamine infusions to try to manage the applicant’s “narcotic requirement and reduce his pain levels”. He noted the applicant’s significant depression and that “with most avenues of treatment now exhausted” the applicant “is now on [a] chronic pain management program”. Dr Mungi opined that the applicant’s work injury in October 2009 “does contribute to” the applicant’s current situation and that “optimum pain management .. may involve regular ketamine infusions to limit the use of narcotics.”
At hearing, Dr Mungi acknowledged that as the applicant’s treating practitioner, his interest was in supporting the applicant. He agreed “absolutely” that his interests were the applicant’s interests. He agreed also that he would defer to the opinion of an orthopaedic surgeon on issues concerning diagnosis and causation.
Mr Moaveni is a consultant orthopaedic surgeon. He provided two medico-legal reports, both undated, arising from assessments he conducted on 30 November 2023[82] and 29 May 2024, respectively.[83]
[82] Exhibit A5
[83] Exhibit A6
In his first report, Mr Moaveni noted the documents he was provided, which did not include the 22 March 2010 MRI scan report. He noted the surgeries performed on 15 March 2010,[84] 24 June 2010 and 21 June 2012, noted above among others. He noted the applicant’s injury to his right shoulder whilst playing with his children on 3 May 2015.
[84] This date appears to be in error and perhaps should be a reference to the surgery to repair the rotator cuff tear on 1 April 2010
Mr Moaveni noted the applicant has become dependent on opiates and the efforts to try to reduce his opiate requirement including two unsuccessful ketamine infusions to move to buprenorphine as an opiate replacement. Mr Moaveni noted the applicant’s reported pain which the applicant rated as 7/10 and his reported frequent sleep disturbances and functional difficulties leading to consequential difficulties with self-care, domestic duties and gardening.
Mr Moaveni reported that on examination there was wasting of the musculature around the left shoulder and significantly less range of motion in the left shoulder compared to the right “measured with the aid of a goniometer”.
When asked for his diagnosis of the injury sustained on 20 October 2009, Mr Moaveni said his diagnosis “includes soft tissue injury to the left shoulder including rotator cuff tear managed with surgical procedure including repair of the rotator cuff and long head of biceps tenodesis. This condition has been complicated by chronic adhesive capsulitis (frozen shoulder) and ongoing pain.”[85]
[85] Exhibit A5 at page 12
In his second report, Mr Moaveni stated the applicant reported similar symptoms at the time of his earlier assessment. He noted the applicant takes MS Contin 10mg in the morning, 15 mg in the afternoon, and 30 mg at night for ongoing shoulder pain and that his “midday MS Contin dose has increased due to worsening pain.”
Mr Moaveni stated he measured the circumference of the applicant’s right arm (37 cm), compared to his left (35 cm), which he said was done midway between the shoulder and the elbow. Mr Moaveni described the difference as “significant wasting of the musculature around the left shoulder girdle”.
Mr Moaveni stated he had reviewed online images of the applicant’s nuclear bone scan and MRI scan performed on 23 April 2024 and noted changes “consistent with a soft tissue injury to the left shoulder”. Mr Moaveni noted the MRI scan showed “thickening of the inferior glenohumeral ligament” which, he said, “is consistent with my diagnosis of chronic adhesive capsulitis”. Mr Moaveni noted changes in the teres minor belly which he described as “consistent with my diagnosis of ongoing pain”. Mr Moaveni said a nuclear bone scan “does not play a role in the diagnosis of chronic adhesive capsulitis, or other soft tissue injuries to the shoulder.”
Mr Moaveni maintained his opinion that the applicant’s condition has been “complicated by chronic adhesive capsulitis (frozen shoulder), as well as ongoing pain.”
Mr Moaveni maintained his opinion that the applicant requires “ongoing medical assessment, advice and treatment … by a Pain Specialist, as well as a Physiotherapist [but] does not require any further orthopaedic surgical intervention on his left shoulder.”
Mr Moaveni disagreed with Dr Brazenor’s review of the bone scan taken on 23 April 2024 and Dr Brazenor’s opinion that the lack of significant isotope uptake in the shoulder joints effectively disproves any significant shoulder pain. Mr Moaveni opined:
Pain is a subjective symptom experienced by the patient, and there is no imaging study that can definitively confirm or refute the presence of pain. The bone scan findings merely suggest the absence of significant bone pathology but do not provide any information about soft tissue pathology or Mr Parker’s subjective pain experience.
At hearing, Mr Moaveni said that in lay terms ‘frozen shoulder’ involves scarring in the shoulder joint, and that because of the scarring the ligaments and muscles do not move. He agreed that the surgical treatment for adhesive capsulitis, therefore, is a “release” in the sense of rectifying the scarring so that the muscles are able to move normally or more normally.
Mr Moaveni went on to add that physiological problems in terms of restriction of function and mechanism such as scarring are not the only cause of adhesive capsulitis, and that pain can be another cause in the sense that a person’s endeavour to avoid pain can lead to loss of movement.
Mr Moaveni was taken to Dr Price’s report dated 11 July 2012 and Dr Price’s findings under anaesthetic that he could passively externally rotate the applicant’s shoulder to 80°, could achieve full elevation and that range of motion was completely normal. In response to those findings, Mr Moaveni acknowledged physiological problems arising from scarring or lack of muscular movement were not the reason for the adhesive capsulitis. Rather, the applicant’s pain was causing the adhesive capsulitis in the sense that pain inhibition was preventing movement of his shoulder.
Mr Moaveni acknowledged that July 2012 was the last time the applicant had surgery and that, because everything was found to be normal at that time, his adhesive capsulitis after that time was premised on the applicant’s reported pain. Mr Moaveni said the applicant’s reported pain was consistent with his physical examinations of the applicant in 2023 and 2024 and with the changes in the teres minor belly shown in the MRI scan conducted on 23 April 2024.
At hearing, Mr Moaveni said an isotope bone scan is a useful tool when considering an issue with bones such as arthritis in the joint or a fracture, but is not a useful tool for examining someone with the applicant’s presentation where the concern is with soft tissue.
At hearing, Mr Moaveni agreed that range of motion is something that a person can control independently. He agreed that a goniometer, which is something like a protractor, measures the range of motion displayed by a person but has no capacity to determine whether a person is putting in their full effort when demonstrating the limits of their range of motion.
At hearing, Mr Moaveni was taken to his measurement of the circumference of the applicant’s right arm (37cm) and left arm (35cm). He acknowledged the so-called ‘10% rule’ of strength symmetry in the sense of a difference between a person’s dominant and non-dominant sides, and that the applicant is right-hand dominant, but maintained this rule applies for measuring strength not circumference. Mr Moaveni also maintained that on examination he saw evidence of the wasting of muscles on the left shoulder. Mr Moaveni agreed that the muscle wastage he observed on 29 May 2024 could not be automatically attributed to the Injury suffered on 20 October 2009.
Mr Moaveni agreed the applicant is on high dosages of pain medication and is addicted to opiates, but would not venture an opinion on whether the applicant’s addiction to opiates provided motivation to claim ongoing pain in order to satisfy his addiction. Mr Moaveni claimed it was beyond his expertise to comment on that question.
Dr Weekes provided a medico-legal report dated 29 August 2024.[86] He is a medical practitioner who specialises in treatment of chronic pain. Dr Weekes stated he examined the applicant on 29 August 2024. Dr Weekes stated that on examination, the applicant reported “worst pain in the left shoulder region, it is a circumferential pain, it is a constant pain “. He stated the applicant “reports characteristics of the pain are such as sharp and burning” (sic) and the applicant “gave a pain score today of 7/10”. Dr Weekes recorded the applicant describing “some radiation of that pain towards his left elbow, particularly on the medial aspect of his upper limb.” Dr Weekes recorded the applicant denying “paraesthesia or numbness”. Dr Weekes recorded “He has described constant neck pain alongside his shoulder pain, it has given the neck pain score of 4/10 and he describes this pain as burning.” (sic)
[86] Exhibit A7
Dr Weekes stated “Extension of his cervical spine did exacerbate pain more than flexion. He has severe limitation in movements of the left shoulder compared to the right side whereby abduction and flexion was limited to approximately 20°. He had no focal neurological deficit of his upper limb.” [87]
[87] In broad terms, I understood this to mean no deficit in nerve function
Dr Weekes stated his “impression” that, in his opinion, the applicant “has developed a chronic pain condition affecting his left shoulder with signs and symptoms of complex regional pain syndrome and adhesive capsulitis.”
Dr Weekes agreed that in relation to a person’s medical history, contemporaneous medical records are the most reliable source of information.
In relation to the adhesive capsulitis, Dr Weekes agreed he did not refer to Dr Price’s report dated 11 July 2012 when expressing his opinions and, when asked about it, said he had no recollection of it.
In relation to ongoing pain referable to the injury suffered in October 2009, Dr Weekes was taken to Dr Mungi’s report dated 26 November 2009[88] where he records that on a follow-up consultation on 30 October 2009 the applicant reported being “completely pain free and ready to assume full duties”. He was taken to the circumstance that the applicant did not return to his general practitioner until 12 January 2010 despite being referred for physiotherapy treatment which he did not undergo. In relation to the applicant’s claim of ongoing and uninterrupted chronic pain from the date of his fall, Dr Weekes acknowledged the contemporaneous medical records to the contrary, but said that was not what was reported to him or the impression he formed.
[88] T 18/80
At hearing, Dr Weekes agreed that a person’s experience of pain can be highly subjective and that the applicant’s subjective reporting of pain was the primary basis for his opinion. Dr Weekes also agreed it is acknowledged in pain medicine that an addiction to opiate medication can be a driver, independent from an injury, for a person to report ongoing severe pain.
Mr Kumar is a physiotherapist. He provided a report dated 25 August 2024[89] that supplemented his report dated 11 October 2010 referred to above. In his supplementary report, Mr Kumar noted how the injury in 2009 occurred, the surgery performed in 2010 and the applicant becoming dependent on opiates. Mr Kumar noted that on assessment, which I presume occurred on or about 25 August 2024, the applicant had “significant restrictions of movement in his left arm in all directions with global stiffness and guarding.” He reported the applicant “always holds his left arm in an adducted, internally rotated position. Any movement of his left shoulder reproduces pain.” He notes the applicant reporting “left-sided neck pain, which can radiate to the left shoulder blade” and him reporting that he has “difficulty performing household chores such as vacuuming, mopping, and cleaning.”
[89] Exhibit A8
Mr Kumar reported the applicant “experiences heightened sensitivity to light touch and pinpricks on the left side of his body.” He noted the applicant scored highly on a “Fear Avoidance Questionnaire” and had high “Depression Anxiety Stress scores”.
Mr Kumar noted the results of x-rays, ultrasounds and MRI examinations conducted between 2009 and 2020. When asked whether, in his opinion, the applicant “requires ongoing medical assessment, advice and treatment”, Mr Kumar stated the applicant “requires ongoing physiotherapy, pain psychology, a pain specialist and access to a gym and swim program.”
By way of prognosis, Mr Kumar stated “Brendan’s complex history and failure to respond to several treatments in the past his prognosis is poor.” (sic).
At hearing, in the context of surgery, Mr Kumar agreed he would defer to the diagnosis of a surgeon but maintained in a wider context he, as a physiotherapist, can make diagnoses for the purpose of formulating a physiotherapy management plan. In terms of the applicant’s incapacity for work, Mr Kumar acknowledged that his statement about the applicant making several unsuccessful attempts to return to work was based on what the applicant told him.
The applicant also relied on the expert reports of Dr Blombery.
Dr Blombery wrote several reports prior to the reviewable decision, as noted above. On 6 August 2023, he wrote a further report in which he stated the applicant’s “whole life is now dominated by pain.” Dr Blombery opined that the pain was “in the nature of non-specific pain syndrome with sensitisation of pain nerve pathways both on the periphery as well as in the brain and spinal cord. This is an organic disorder of these pathways.” He noted the applicant had a good response to the first ketamine infusion, but not the second.
In his 6 August 2023 report, Dr Blombery stated he ‘saw’ the applicant again for review on 29 August 2022 via Telehealth, but had not seen him since. Dr Blombery stated the applicant reported his pain had “returned to 8/10” and he remained on MS Contin 10 mg bd.
Dr Blombery opined the applicant’s prognosis for recovery is “very poor”; he “only had a very temporary response to a ketamine infusion. The only other treatment option is for the use of spinal cord stimulation but I do not think he would be an ideal candidate for that.”
Dr Blombery opined that “All of his current disabilities are a consequence of the accident that occurred in 2009.”
Dr Blombery opined the applicant “requires ongoing management for pain indefinitely into the future”; he has “no capacity to return to his pre-injury employment”; and “his prognosis for recovery is very poor.”
I was told Dr Blombery had recently passed away. Counsel for the applicant said the Tribunal should give such weight as it thought appropriate to Dr Blombery’s reports in circumstances where he was not available to answer questions arising from his reports.
The applicant noted that until 10 November 2022, liability was accepted. He submitted that for his existing entitlements to be terminated, the respondent bears an onus to prove on the balance of probabilities that the statutory prerequisites for those entitlements no longer exist. He relied on decisions of the Federal Court in Comcare v Nichols,[90] Brackenreg v Comcare[91] and Comcare v Power[92] in support.
[90] [1999] FCA 209
[91] [2010] FCA 724
[92] [2015] FCA 1502
The applicant noted the accepted injury was redescribed as “labral tear and capsulitis of the left shoulder.” He submitted that a broad, generous and practical approach must be applied when determining the scope of the accepted injury, and that in this case it includes adhesive capsulitis and chronic pain. In support, the applicant relied on decisions of the Federal Court in Abrahams vTelstra Corporation Limited,[93] Telstra Corporation Limited v Hannaford[94] and Ellison v Comcare.[95]
[93] [2022] FCA 95
[94] [2006] FCAFC 87
[95] [2022] FCA 95 at [141]
The applicant relied on his own evidence that prior to 20 October 2009 he was not experiencing any symptoms of pain in his left shoulder.
He relied on the medical evidence to submit that as a result of the accident, he suffered a soft tissue injury which included subacromial bursitis, a tear of the labrum, and either a full thickness tear of the supraspinatus tendon that was not picked up on the ultrasound or a partial thickness tear that progressed to a full thickness tear.
With reference to the certificate of capacity dated 30 October 2009, 10 days after the accident, certifying him fit to return to normal duties and him telling Dr Mungi he was “completely pain free”, the applicant relied on his evidence that his statements to Dr Mungi were not true. The applicant stated he sought a full medical clearance consequent on pressures from his supervisor and fear his employment would not continue if he was not fit for duty.

The applicant submitted there is no credible evidence that the pain in his left shoulder has resolved, or ever resolved. He relied on his own evidence that, instead, the pain has progressively become worse. He submitted there is no evidence of a subsequent incident or injury to explain the ongoing pain in his shoulder.
As for the full tear shown in the 22 March 2010 MRI scan, and Dr Brazenor’s evidence that it could only be explained by ‘something having happened’, the applicant noted Dr Brazenor is a neurosurgeon who specialises in issues concerning the brain and spine but is not an orthopaedic surgeon. The applicant also contended the full tear may have been there all along but was not picked up on the earlier ultrasound, which is an inferior investigative technique, or (after the ultrasound) it progressed from a partial tear to a full tear.
The applicant acknowledged the subsequent surgeries were reasonable by way of treatment for abnormal pathology, but submitted the surgery did not repair the Injury. He noted acknowledgements from the expert witnesses that shoulder surgery can sometimes cause further trauma and is sometimes unsuccessful. Whilst the applicant acknowledged nothing was put to the experts regarding this surgery, he submitted the Tribunal cannot properly conclude the surgery was successful or that his shoulder was healed.
The applicant submitted that because there is a continuity of pain following the initial injury, and no resolution of the complaint, his current condition is referable to the 20 October 2009 injury.
In support, in addition to the evidence of the experts called, the applicant relied on the reports of Dr Blombery mentioned above and the reports from Dr Shannon dated 31 January 2011, Dr Cairns dated 5 February 2013, Dr Perera dated 17 September 2015 and Dr Haig dated 11 December 2017 noted above that record the opinions of the doctors that the applicant’s present conditions are referable to the 20 October 2009 incident. The applicant noted this “continuum” of expert opinion evidence is consistent with the opinion of Mr Moaveni, and that the Tribunal should find accordingly.

The respondent’s case

The respondent submitted that as at 10 November 2022 (at the latest), the applicant had ceased to suffer the effects of the compensable injury and, consequently, the respondent was no longer liable to pay compensation for medical treatment, incapacity for work or household services pursuant to ss 16, 19 and 29, respectively, as at that date.
By way of evidence, the respondent called Dr Allen, Dr Brazenor and A/Prof Mendelson.
Dr Allen, a consultant orthopaedic surgeon, provided two medico-legal reports dated 19 December 2024[96] and 26 February 2025.[97]
[96] Exhibit R6
[97] Exhibit R7
In his first report, Dr Allen noted the applicant’s reported history of the fall on 20 October 2009 when he injured his shoulder; his report that he has “undergone approximately four other surgeries on his shoulder”; his report “that his condition has remained unchanged with severe pain and restrictions on his shoulder which has been stable and stationary for at least the last 10 years”; his report “that he has constant pain in the shoulder with marked restriction in motion”; his report that “all attempts at treatment over the years have failed to give him significant benefit”; and his report “that he continues to have painful stiff left shoulder which is incapable of any functional movement.”
Dr Allen noted a “history of depression and possibly anxiety”.
Dr Allen noted that on examination the applicant -
resisted any movement of the shoulder and demonstrated only minimal movement. No objective assessment of the full range of motion possible was able to be assessed.
The arm appeared to be in the state of pseudo-paralysis and there were none of the stigmata of true paralysis present (Muscle atrophy, skin changes, axillary fungal infections etc).
Further physical examination was not possible owing to his general affect, state and condition.[98]
[98] Exhibit R6 at page 4
Dr Allen noted the report of the ultrasound conducted on his left shoulder on 28 October 2009 which, he said, showed there was “no major injury to the rotator cuff”, “some minor degenerative tendinopathy”, “some partial-thickness fibre deficiency” and “some subacromial bursitis”.[99]
[99] Exhibit R6 at page 4
After reviewing noted x-rays, ultrasounds and MRI scans, Dr Allen acknowledged the applicant had suffered an injury to his left shoulder, but opined it was not a significant injury. He said “one would ordinarily expect his condition to settle in a few weeks of the reported incident” but acknowledged this “has not been case” and that his ongoing progression of symptoms “has culminated in his current state where he has reports of significant pain in the left shoulder with restricted motion and poor function.”
Dr Allen opined that the applicant’s presentation “appears to be out of step with the objective findings of the pathology in the shoulder” and “there appears to be no objective explanation as to the root cause of his current level of symptoms and dysfunction.”
However, when asked “whether the applicant’s accident on 20 October 2009 contributed to the present condition of his shoulder”, Dr Allen concluded:
As there is a reported continuum from the incident in 2009 I must conclude that the shoulder condition continues to proceed from that incident albeit[100] on a physical basis or a functional basis. Notwithstanding either of these bases for his condition it continues and has arisen out of the incident on 20 October 2009.[101]
..
Insofar as the level of symptoms reported it is not objectively verifiable (sic), this does raise the possibility of non-organic factors. I defer to my learned psychiatric colleagues for their assessment in this regard.[102]
Mr Parker reported that he has a painful shoulder with restricted motion and poor function. Other than this diagnosis I can give no objectively verifiable musculoskeletal diagnosis for his reported condition.[103]
[100] It would seem the word "not" was accidentally omitted after the word "albeit"
[101] Exhibit R7 page 6
[102] Exhibit R7 page 7
[103] Exhibit R7 page 8
In his second report, Dr Allen noted he had not referred to the MRI scan report dated 22 March 2010 and stated his belief he “may have missed it in the brief”.
Dr Allen noted the MRI scan recorded a full thickness tear of the posterior third of the supraspinatus tendon. At hearing, he commented it was a significant tear approximately one third of the diameter of the tendon. He then referred to the ultrasound report dated 28 October 2009 conducted eight days after the accident, which (he said) noted “degenerative change in the shoulder with associated partial-thickness fibre deficiency but no evidence of any full thickness tear.”
From this, Dr Allen opined the full thickness tear “cannot be retrospectively attributed to the index incident”.
He said the presence of the full thickness tear “indicates that it was either a subsequent degenerative full thickness tear of the rotator cuff in line with his pre-existing degenerative disease or there has been an unreported interval injury.”
Dr Allen maintained his opinion that the injury suffered on 20 October 2009 was “at most .. a minor sprain of the left shoulder with some subacromial bursitis”.
As for the full thickness tear of the rotator cuff indicated on the 22 March 2010 MRI scan, Dr Allen noted the applicant underwent surgery to rectify the tear and that imaging taken on 4 January 2011 noted the surgery was successful. Dr Allen stated:
.. imaging after the surgery (4 January 2011) notes successful surgery with insufficient objective evidence of any residual intra-articular pathology to account for the ongoing level of symptoms reported.
It appears that the surgery was therefore successful in repairing the rotator cuff.
..
I must therefore conclude that on the balance of probabilities the current shoulder condition did not arise out of the work incident on 20 October 2009
The condition which arose from the work incident on 20 October 2009 has been superseded by the development of a rotator cuff tear which on the balance of probabilities is either a consequence of the progression of the underlying degenerative tendinopathy in the rotator cuff tendon or an unreported interval injury.
The effects of the work incident on 20 October 2009 are no longer present.[104]
[104] Exhibit R7 at pages 3 and 4
At hearing, Dr Allen explained that a partial tear is not a ‘tear’ as that word would be understood in lay terms. He explained it involves a fibre deficiency and likened it to a leather couch being worn on the surface, but not a hole or rip in the leather.
At hearing, Dr Allen accepted that an MRI scan is a better diagnostic tool than an ultrasound scan and it was possible the full thickness tear was present at the time of the ultrasound scan but not picked up. He also acknowledged he was unaware of any interval injury between when the ultrasound was taken on 28 October 2009 and when the MRI scan was done on 22 March 2010 and agreed that him offering an interval injury as an explanation for the full thickness tear was speculative. He also agreed that a partial tear arising from degenerative change can lead to a full thickness tear, or a rotator cuff tear in this case, over time.
Dr Allen acknowledged degenerative change is less common in younger people, including the applicant at 33 years of age, than in older people but noted the applicant had a history of gout and long-standing obesity which, he said, increases the risk of degenerative tendinopathy and soft tissue injury.
Dr Allen agreed with Mr Moaeveni’s opinion that, as a general rule, degenerative change is less common in younger people but pointed out that in this case the radiology results identified degenerative change, namely “minor supraspinatus tendinopathy”. Dr Allen explained that “tendinopathy is a degeneration of the collagen protein that forms the tendon. It is not a traumatic condition. It is a degenerative, constitutional condition”.[105] At hearing, he described the tendinopathy in this case as “present and manifest”.
[105] Exhibit R7 at page 2, footnote 1
At hearing, Dr Allen agreed it is difficult to correlate observed pathology with an experience of pain and that pain is a subjective experience. Dr Allen described pain as non-verifiable.
At hearing, Dr Allen said that adhesive capsulitis is a poorly understood condition. He said that in the past it was associated with trauma, whether surgical or nonsurgical, but in recent times has been found to be more likely due to the underlying metabolic conditions of the patient than trauma. He said studies have shown that in 60 to 80% of cases, it is found to be more a consequence of underlying metabolic conditions than trauma. He said tendinopathy occurs among quite young people with metabolic conditions such as diabetes, insulin resistance, obesity and gout. With reliance on a test result dated 7 June 2022, he noted the applicant had a history of gout, obesity and pre-diabetes insulin resistance[106] which put him in a category of persons susceptible to early onset generative tendinopathy in soft tissue.
[106] Exhibit R8
Dr Allen did not comment on whether, in his view, the applicant suffers from adhesive capsulitis.
Dr Brazenor is a neurosurgeon. He has an extensive curriculum vitae since graduating in medicine with first class honours. He is widely published. Supplementing his earlier reports dated 20 September and 1 November 2022 noted above, Dr Brazenor wrote three further reports dated 4 March,[107] 29 May[108] and 8 December 2024.[109]
[107] Exhibit R9
[108] Exhibit R 10
[109] Exhibit R 11
In his report dated 4 March 2024, Dr Brazenor said no one has provided any evidence to explain the applicant’s “apparent inexorable slide downhill into almost complete whole-body disability from a mild shoulder injury.” Dr Brazenor opined the applicant’s “severe disability in his whole left arm is in no way attributable to any injury to the shoulder joint, least of all a mild-moderate rotator cuff tear”.
Dr Brazenor referred to the reports or certificates from different orthopaedic surgeons dated 15 April 2010, 18 August 2010, 12 January 2011, 31 January 2011 and 11 April 2011 to contend the applicant’s pain and disability in the first two years after the injury in October 2009, “still constitutes merely just a condition localised to the left shoulder”. Dr Brazenor noted the healing in the applicant’s left shoulder evidenced by their being “no isotope uptake in the joint or its tendons in isotope scans in 2020”. Dr Brazenor described the “alleged inexorable deterioration” in the applicant’s disability as “inexplicable”.
Dr Brazenor described Dr Blombery’s opinion that the injury has somehow caused sensitisation in the applicant’s nervous system that accounts for the pain as a “speculative allegation” unsupported by any evidence. Dr Brazenor attached a copy of a paper of which he was a co-author entitled “Can Central Sensitisation after Injury Persist as an Autonomous Pain Generator? A Comprehensive Search for Evidence” which documented a three year review of 3,500 published works on the subject of central sensitisation. He stated they found no evidence to support an affirmative answer to the question posed in their publication and concluded “the whole evidential basis for the diagnosis of pain sensitisation in patients is seriously in question”.
Dr Brazenor contended the only explanation which “fits the facts” is that the applicant is “largely perpetrating a ruse as to his pain and disability”.
In his report dated 29 May 2024, Dr Brazenor referred to the isotope bone scan report dated 23 April 2024 provided to him for comment, a copy of which he attached to his own report. Dr Brazenor stated the isotope report –
showed identical and insignificant isotope uptake in the shoulder joints bilaterally, consistent with painless 48-year-old shoulder joints. This finding is completely incompatible with any complaint of significant shoulder pain, and insofar as the trivial uptake is identical in the two shoulder joints (and insofar as Mr Parker does not claim the severe pain in the right arm that he alleges in the left), this effectively disproves any significant shoulder pain that he claims to have.
In his report dated 8 December 2024, Dr Brazenor noted that Dr Mungi’s consultation record dated 30 October 2009 included “Full ROM of the Lt shoulder minimal pain” and “fit to go back to work”. Dr Brazenor said that “such a rapid recovery is completely inconsistent with a shoulder injury that will require surgery.”
Dr Brazenor disagreed with Mr Moaveni’s opinion that a nuclear (or isotope) bone scan is not a test routinely used in the context of diagnosing chronic adhesive capsulitis or other soft tissue injuries. Dr Brazenor attached a copy of his paper written in 2014 which, he said, demonstrated “the value of isotope bone scan in detecting inflammatory disorders, failed fusions and joint arthropathy.”
Dr Brazenor noted the applicant’s claimed lack of flexion and supination at the left elbow, as noted on examination by himself, but not on examination by Dr Weekes or Mr Moaveni. Dr Brazenor said “The variability of the physical examination findings ... by three specialists strongly suggested malingering”.
Dr Brazenor noted there is no prior medical record of partial paralysis of the left arm at the elbow that the applicant claimed when Dr Brazenor examined him on 30 September 2022.
Dr Brazenor noted the applicant’s “claims of pain, usually severe, do not diminish” over an entire 157 months after January 2011 which, he said, in his 50-year experience “is in contradistinction to all other injuries that I have ever followed for a period: they all get significantly (even if not always completely) better with time, unless there is a readily detectable ongoing disease process, which there is not in Mr Parker.”[110]
[110] Exhibit R 11 at page 6
Dr Brazenor concluded that on the basis of the documentary and radiological evidence, he was of the view that the applicant’s sprain injury on 20 October 2009 was “minor” and “well on the way to healing by the consultation … ten days later”. Dr Brazenor stated the opinions expressed in his earlier reports remained unchanged.
At hearing, Dr Brazenor agreed that pain is a subjective experience, but qualified it by saying that was so only if the patient presents consistent levels of pain and disability. He noted that was not so in this case, where the applicant presented near paralysis in his left arm and an inability to bend his arm at the elbow or turn his left palm upwards, on examination by Dr Brazenor, but not on examination by Mr Moaveni or Dr Weekes.
Dr Brazenor agreed as a matter of statistics that shoulder surgery does not always result in good outcomes and sometimes a condition can be worse following surgery, but disagreed that was so in this case where Dr Price conducted an arthroscopy in 2012 and found everything intact and normal range of motion.
Dr Brazenor disagreed with Mr Moaveni’s opinion (at the time) that scarring was causing the applicant’s claimed adhesive capsulitis because if there was scarring, the applicant would not have been able to display normal range of movement under anaesthetic as Dr Price found in 2012.
Dr Brazenor disagreed with Dr Mungi’s opinion that the applicant was genuine in his claim of pain because, as the applicant’s treating practitioner, Dr Mungi’s task was to try and address the claim. Dr Brazenor contended that if Dr Mungi had rejected the applicant’s claim of pain, the applicant would have gone to another clinic.
At hearing, Dr Brazenor agreed that an MRI scan is more accurate than an ultrasound for identifying ligament tear but rejected the proposition that the applicant suffered a full tear when he fell on 20 October 2009 which was missed in the ultrasound. Dr Brazenor relied on the clear findings in the ultrasound report of “minor supraspinatus tendinopathy associated with a partial-thickness mid third intrasubstance tear”, in contrast to the MRI scan finding a full tear, and the circumstance that after the review on 30 October 2009, the applicant did not present to Dr Mungi or anyone else with any concern about his shoulder until January 2010, two and a half months later. Dr Brazenor said that in the case of an injury, especially a significant injury to the shoulder, the pain is worst at the time it occurs and then steadily declines.
Dr Brazenor was firm in his opinion that the only explanation for the full thickness tear shown on the MRI scan in March 2010, as a matter of interpreting the radiology, was a trauma injury of some kind that occurred after the ultrasound was conducted.
A/Professor Mendelson is a consultant psychiatrist and a specialist pain medicine physician. His curriculum vitae records extensive experience in psychiatry over at least 50 years, in practice as a psychiatrist and as a lecturer in psychological medicine at Monash University. He has been an adjunct Clinical Associate Professor in the Department of Psychiatry, School of Clinical Sciences, Faculty of Medicine, Nursing and Health Sciences at Monash University since 1994.
A/Prof Mendelson provided four reports dated 14 November 2014,[111] 29 June 2017,[112] 7 April 2020[113] and 5 May 2025.[114] The first three followed examinations of the applicant on 29 October 2014, 1 April 2020 and 24 May 2017, respectively.
[111]T474/1234
[112] T589/1556
[113] T651/1780
[114] Exhibit R12
To some extent, as he acknowledged, A/Prof Mendelson’s opinions, diagnoses and comments about the applicant’s condition changed over time consequent on him becoming aware of further information after being provided with further documents. I therefore summarise his evidence holistically, which included several matters of note.
The first was A/Prof Mendelson’s detailing of the applicant’s long history of clinical depression beginning well before the accident in October 2009. He referred to the applicant’s self-described “minor” depression when he was 20 years old (1996) for which he was prescribed an antidepressant medication.[115] A/Prof Mendelson described that early episode of depression as indicating “a biological vulnerability to depression.” A/Prof Mendelson referred to a letter dated 23 October 2003 from Dr O’Ortenzio, the applicant’s treating psychiatrist at the time, to Dr Courtis regarding surgery the applicant had for carpal tunnel syndrome in his left wrist when he was 27 years old. Dr O’Ortenzio wrote:
He has significant difficulties with both anxiety and depressive symptoms and shows a lot of the mood and behaviour commonly seen in people in his circumstance.[116]
[115] T474/1234 at 1238
[116] T651/1780 at 1791

Then there was the evidence of him suffering a severe injury to his right shoulder when he fell when playing basketball with his children in 2015. Again, the applicant downplayed the significance of this activity by claiming he was not really playing basketball. Rather, he was just standing behind the backboard and returning the ball to his children when the ball went astray. That is not consistent with his claim at hearing that he was trying to do a “twist and push of the ball” when he fell. In any event, whatever he was doing, it would still involve significant movement to catch and/or pick up a basketball which is inconsistent with the extreme lack of movement and extreme level of pain that he claimed occurred even by someone touching his shoulder or turning his palm upwards as he claimed at hearing and to examining doctors.
Fifth is that the only evidence of the applicant’s claimed lack of range of motion was the applicant’s ‘say so’. As the applicant acknowledged, range of motion is something he could control.
The applicant was on notice from at least 10 November 2022 that his claims of pain and disability were seen as “clearly confabulatory” and “a ruse upon his employer”: Dr Brazenor’s opinions to that effect are quoted and relied upon in the respondent’s determination of that date noted above. Notwithstanding the applicant knowing what was said against him, no friend or member of his family or anyone else who would have been able to comment on his daily lifestyle, in particular on the extent to which he could or could not use his left arm, gave evidence in this proceeding. This suggests none of these people could have given evidence to support the applicant’s case.
I make the same observation about his interaction with health practitioners. As best I can ascertain, he always attended appointments alone. Despite his claims of intense pain and spending all but 3 to 4 hours a day in bed, he drove himself to and from his home in Bendigo to Melbourne for examination appointments. Notwithstanding the claimed severity of his pain, I was unable to find any mention of the applicant receiving any assistance from a friend or family member to attend an appointment.
Examining doctors who could have given evidence about his range of movement were thwarted because the applicant consistently claimed to them such extreme pain in response to any endeavour to raise or move his arm, or even lift his hand above his waist or beltline.
As Dr Brazenor pointed out, his displayed range of motion changed from time to time from doctor to doctor.
Several doctors reported an inability to test range of motion at all because of the applicant’s claimed pain. Understandably, none of these doctors was willing to test his range of movement in these circumstances.
In all, I was left with nothing to support the applicant’s claimed restriction of movement, which he and all the experts agreed he could control, and his claim is contradicted by the objective evidence.
Sixth, there were (and are) two very powerful drivers for why the applicant would claim an inability to move his arm because of pain, namely his need for high levels of opioid medication to meet his addiction to narcotics and his understandable wish to continue receiving very significant and ongoing amounts of money by way of compensation.
Last, the evidence of all the experts called in this proceeding points to the absence of adhesive capsulitis.
Dr Brazenor wrote five reports in which he reviewed the extensive medical evidence. He concluded the only explanation that “fits the facts” is that the applicant is “perpetrating a ruse as to his pain and disability”. A/Prof Mendelson opined the alleged resultant disability is “not consistent and congruent” with the findings on examination. Dr Weekes’ report makes plain that he essentially accepted what the applicant reported and displayed on examination to be true, and wrote his opinion accordingly, but then acknowledged documents shown to him during the hearing were not consistent with what was reported to him or the impression he had formed. Mr Moaeveni agreed there is no structural basis for the applicant’s claimed adhesive capsulitis, and so put it down to pain inhibition whilst acknowledging pain is a “subjective symptom”.
Where I am satisfied the applicant does not suffer from adhesive capsulitis, the applicant’s claim for compensation arising from it fails because I am satisfied it does not exist.
That said, in deference to the parties’ arguments and the expert opinions to the contrary on which the applicant relied, I considered the question whether the adhesive capsulitis - if it exists - is compensable. Here too the applicant’s case failed because I am satisfied on the evidence that the claimed adhesive capsulitis, if it exists, has not arisen out of, or in the course of, the applicant’s employment. It is therefore not an injury, pursuant to the definition of an injury in s 5A(1)(b) on which the applicant relied.
“Arising out of” connotes a causal relationship between the employment and the injury,[143] whereas “in the course of”, connotes a temporal relationship.[144]
[143]Telstra Corporation Limited v Bowden [2012] FCA 576
[144]Hatzimanolis v ANI Corporation Limited [1992] HCA 21; Gregory v Comcare [1997] FCA 4
There was (properly) no suggestion the adhesive capsulitis arose “in the course of” the applicant’s employment. When examined on 30 October 2009, 10 days after the fall, he had full range of motion and was completely pain free. Concerns about adhesive capsulitis did not arise until after the surgery on 1 April 2010 to repair the rotator cuff tear.
The claim was that adhesive capsulitis arose out of the Injury. Two possible explanations for that causal connection were put forward. First, it arose as a side-effect of the surgery to repair the rotator cuff which arose from the Injury. Second it arose from pain inhibition.
On the evidence, I am satisfied the applicant’s claimed adhesive capsulitis did not “arise out of” his employment because, in my view, neither causal connection can be made.
The simple proposition, essentially put by the applicant, that he injured his shoulder when he fell on 20 October 2009 and that, despite many surgeries and treatments, ‘one thing led to another’ leaving him with adhesive capsulitis and chronic pain is to gloss over the medical details as to what occurred.
It is important to begin with close attention to the injury actually suffered on 20 October 2009: a partial-thickness mid third intrasubstance tear evidenced by the ultrasound which I accept to be correct. On the evidence, a tear of that kind is a minor injury. Dr Allen described it as “a minor sprain”.[145] That it was a minor injury is consistent with Dr Mungi’s findings on examination on 30 October 2009 that the applicant had full range of motion, was completely pain free and was fit to return to his normal duties as a welder of railway lines.
[145] Exhibit R7 at page 3
The applicant’s evidence that he was not being truthful to Dr Mungi and needed to feign recovery in order to hold his job was not persuasive. I accept a person can claim to be pain-free when they are not because, as all the experts acknowledged, pain is non-verifiable, but that is not the case with range of motion. A person can feign lack of range of motion, but it is a nonsense to say a person can display full range of motion if they do have it.
The applicant having full range of motion and being pain-free is also consistent with him not seeing Dr Mungi again until 12 January 2010, approximately 2.5 months after he suffered the injury on 20 October 2009.
On 22 March 2010, an MRI scan showed a full thickness tear. As mentioned, there is no evidence as to how it happened, but only two possibilities were put forward: a subsequent trauma or the partial tear progressing to a full tear because of the applicant’s degenerative condition.
The difference of view between Dr Allen and Mr Moaveni about tendinopathy (meaning a degenerative condition) being usual or unusual in younger persons (such as the applicant at age 33) was somewhat beside the point. Whether it is unusual, or can be explained by the applicant’s gout, obesity and insulin resistance, matters not because the degenerative condition was noted in the ultrasound. As Dr Allen put it, and I accept, it was “present and manifest”.
Also, if I were to prefer Mr Moaveni’s opinion that the progression from the partial tear to the full thickness tear is not explained by a degenerative condition, the only proffered alternative explanation is a subsequent trauma.
Importantly, for present purposes, whether the full thickness tear arose from progression of an existing degenerative condition or a subsequent trauma matters not. Either way, it did not arise from the injury suffered in the fall on 20 October 2009 from which the applicant quickly recovered. As Dr Allen put it, and I accept, “In both instances the presence of the rotator cuff tear cannot be retrospectively attributed to the indexed incident.”[146]
[146] Exhibit R7 at page 3
The rotator cuff tear, which (as Dr Allen explained) was not a work-related injury, was successfully repaired on 1 April 2010. It was only after that surgery was conducted that concerns about adhesive capsulitis were raised. They were raised by Dr Dayananda in the context of a complication arising from the surgery, not from the index injury. It follows that the adhesive capsulitis, if it exists and if it arose from the surgery, did not arise out of the applicant’s employment. In any event, it was rectified by the later capsular release surgery conducted on 24 June 2010 as Moaveni accepts.
The applicant’s case therefore depended on Mr Moaveni’s claim that pain inhibition, not scarring or physical restriction of movement, is the cause of the applicant’s adhesive capsulitis and that the pain arises out of the injury suffered on 20 October 2009.
For two reasons, I am satisfied that claim must fail.
First, the contemporaneous evidence (which I accept) is that 10 days after the Injury occurred, the applicant reported to Dr Mungi that he was “completely pain free”. I find accordingly.
The applicant’s evidence that this was not true, and that he was pressured by his supervisor to return to work and that if he did not get a certificate of fitness for work he would not have further employment, was not persuasive. There was no direct evidence to support that claim. It is contradicted by Dr Mungi certifying on 30 October 2009 the applicant was fit to resume normal duties as a welder after examining the applicant’s shoulder. It is contradicted by the applicant not seeing Dr Mungi or, apparently, not obtaining treatment of any kind for more than 2 months after seeing Dr Mungi on 30 October 2009.
This circumstance engaged the following statement of principle in Woodhouse v Comcare:
[T]he existence of an entitlement to compensation pursuant to s 14 in respect of a relevant period of time depends on there being an “injury” from which the employee suffers during that period of time. Compensation is only payable for the period during which the injury retains the relevant causal nexus with employment. In other words, that the contribution requirement remains unbroken. In the case of a disease, it must be one that was contributed to in a material (or significant) degree by the employee’s employment. For the reasons explained in Lees (at [27]), the entitlement to compensation arises pursuant to s 14 and is then controlled by the provisions that follow in Pt II of the SRC Act. For that reason, in the absence of a present “injury” and a consequent entitlement pursuant to s 14, there cannot be liability to pay compensation for incapacity for work that occurs “as a result of” an injury pursuant to s 19[147] (emphasis added)
[147] [2021] FCAFC 95 at [109]
Second, if pain returned, I am satisfied it did not arise out of the index injury.
I say “if” because Dr Brazenor contended the applicant’s whole claim is a ruse, in the sense there is no pain and no adhesive capsulitis. Rather, the applicant simply contends those things to be so, knowing they are not, for the purpose of meeting his addiction to narcotics and maintaining his claim for workers compensation payments.
Giving the applicant the benefit of the doubt, I was unable to determine whether everything is a ruse in the way Dr Brazenor characterised it. There is another possible explanation. I note A/Prof Mendelson’s evidence that “individuals not infrequently complain of pain in the absence of any objectively demonstrable organic abnormality” and that this is referred to as “psychogenic pain”. He noted this can be triggered by factors including secondary gain.
In my view, this scenario is a tenable alternative explanation for the applicant’s circumstance. As mentioned, as secondary gain, there were (and are) two very powerful drivers for the applicant to protest pain: his severe addiction to narcotics and his wish to continue receiving workers compensation payments.
On the evidence, the applicant’s addiction to narcotics is severe and entrenched. He has been taking antidepressants since at least 2004, years before the index injury. He has twice failed ketamine infusions given in an endeavour to wean him off narcotics and, on the evidence. He seeks increased dosages of narcotics and complains of ongoing extreme pain, and of no benefit from the opiates he is receiving, as his reason for why scripts for narcotic medications of different kinds in high doses should continue to be given.
I do not imply any criticism of any doctor for prescribing opioids to the applicant: they are in an impossible position and, on the evidence, have done all they can to address the applicant’s addiction.
I am satisfied on the evidence that whether the applicant’s pain is feigned or imagined or somewhere in between and regardless of its severity, the primary factor driving his claimed pain, for which there is no demonstrable organic abnormality, is his severe addiction to narcotics.
I am also satisfied on the evidence that the applicant’s choice of an inability to move his left shoulder and arm because of claimed pain, as opposed to any other claimed cause of pain, is done to maintain his workers compensation claim. Of note is that the applicant suffered a severe injury to his right shoulder in non-compensable circumstances from which he readily recovered without any suggestion of ongoing pain.
The above analysis also explains why I could give little weight to the reports from many doctors, none of whom was called in this proceeding, in which they stated their belief or opinion that the applicant’s adhesive capsulitis and pain, as reported by the applicant and presented on examination, could be attributed to the index injury. Their only explanation for that opinion appeared to be the applicant’s claimed continuity in claimed pain and his claimed lack of movement from when the injury occurred to his presentation on examination. Arising from that continuity, many of the doctors described the surgeries as unsuccessful where the opposite was the case, as Mr Moaveni acknowledged.
I give some examples.
Dr Cairns’ reports were written in 2012 and 2013, 12 years ago, in the context of a claim for permanent impairment. His opinions were based on what the applicant reported and what occurred on examination regarding range of movement. Dr Cairns was not called as a witness and so there was no opportunity to seek his views about the different and subsequent opinions given by Dr Allen, Dr Brazenor and A/Prof Mendelson; nor about the successful surgeries conducted on 1 April and 21 June 2010 which he described as unsuccessful; nor about Dr Price’s report dated 11 July 2012 in which he found everything, structurally, to be normal; nor about the absence of any pathology to explain the pain or the claimed lack of range of movement; nor about the prospect that the applicant’s reported pain and displayed restriction of movement was motivated by his addiction to narcotic medications and his wish to continue receiving compensation payments.
Dr Shannon was in a similar position. His report was written in 2011, 14 years ago, and Dr Shannon was not called. Also, his report was of no assistance because it was written prior to Dr Price conducting an arthroscopy in 2012 and finding full range of motion and and nothing that could be improved by further surgery.
Dr Perera was not called and so likewise, among other things, could not be asked about the absence of any structural explanation for the claimed adhesive capsulitis.
Dr Haig was not called and so could not be asked why he thought the applicant had developed chronic pain as a result of the original injury or why he thought the applicant’s condition to have resulted in part from “failed shoulder surgery” where Dr Price’s findings indicate both surgeries were a success. Also, there is no mention in Dr Haig’s report of the records provided to him for the purpose of providing his opinion, in particular the 28 October 2009 ultrasound, the 22 March 2010 MRI scan and Dr Price’s report dated 11 July 2012, which contradict his opinion.
I am satisfied the applicant does not suffer from pain arising out of the original injury to his shoulder. I am satisfied that if the applicant was (or is) experiencing pain on and from November 2022 that was (or is) causing him not to move his shoulder or arm, that perceived pain arises from his need for narcotics not from his injury.
I am satisfied the applicant was no longer entitled to compensation for adhesive capsulitis from November 2022, if not well before.
I turn to the applicant’s second claimed injury: chronic pain.
In Williamson and Comcare,[148] the AAT said:
Without a diagnosis as to the cause of the Applicant’s pain which has continued for a period in excess of 10 years it is impossible to say that the Applicant’s employment either caused or contributed to the underlying condition. It is possible only to conclude that symptoms persisted, to varying degrees of intensity, throughout the period of the Applicant’s employment with the Australian Border Force. Subjectively experienced symptoms, which may be experienced at work without an accompanying physiological diagnosis, is simply insufficient to meet the requirements of the Act.
There is direct High Court authority in the case of Military Rehabilitation and Compensation Commission v May [2016] HCA 19. This was an appeal from the Full Court of the Federal Court in which the High Court considered the meaning of section 14 of the Act and consequentially the meaning of the word ‘injury’ in sections 5A and 5B of the Act. The High Court explained at [57] when considering the conclusion of the Full Court that the relevant inquiry to be made was whether the person has experienced a physiological change:
[148] [2019] AATA 4774
[149] [2019] AATA 4774 at [45] – [46]
...To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient..... that conclusion should be rejected.[149]
Once this analysis is applied, especially the High Court’s statement of principle in Military Rehabilitation and Compensation Commission v May, the problem with the applicant’s claim for ongoing compensation for chronic pain was exposed.
Dr Brazenor gave evidence with reliance on the isotope bone scan dated 23 April 2024 that, positively, there is no pain. He noted the “identical and insignificant isotope uptake” in the applicant’s left and right shoulders and the absence of any claim of pain in the right shoulder. This, he said, disproves any significant shoulder pain in the left shoulder. Mr Moaveni disagreed, stating that in his opinion an isotope bone scan is not a useful tool for evidencing pain, or the lack of it, in a soft tissue injury.
An obvious concern with Mr Moaveni’s response is that, on the findings of Dr Price, there is no soft tissue injury. That said, it is not necessary for me to make a finding on this issue. It is enough to say the isotope bone scan does not explain why the applicant could be experiencing pain in his left shoulder but not his right.

Dr Blombery postulated that sensitisation of pain nerve pathways could be the explanation for the applicant’s claimed chronic pain, but I was unable to give that opinion any weight. Dr Blombery could not be called to comment on whether that might be the cause in this case and Dr Brazenor and A/Prof Mendelson both gave unchallenged evidence that such an explanation is merely speculative. Also, how or whether sensitisation of pain nerve pathways arose out of the index injury was not explained.
In his second report, Mr Moaveni referred to an MRI scan conducted on 23 April 2024 which, he said, showed “changes in the teres minor muscle belly” which, he said, is consistent with his “diagnosis of ongoing pain”, but this was of no material value because there was no comment as to what these changes entailed, or whether these changes were causing pain in this case (even if consistent with pain) or whether these changes arose out of the Injury which was surgically healed at least 12 years earlier.
Dr Weekes’ evidence was of no material assistance. In his report, he provided a short and incomplete summary of the treatments the applicant has received which he described as “largely unsuccessful”, which I took to mean unsuccessful in relation to treatment of his pain, but gave no basis for why he thinks the applicant has chronic pain save for the applicant saying so.
Pain is subjective and lack of movement is primarily evidenced by what the applicant claims he can and cannot do. Dr Weekes took on face value the applicant’s claims of pain and acknowledged that was the primary basis for his opinion that the applicant has developed a chronic pain syndrome. Whether Dr Weekes intended a distinction between ‘chronic pain’ claimed in this proceeding and CRPS which is not was not explained.
Dr Weekes was asked for his “opinion as to whether the work-related incident on 20 October 2009 contributes, to a significant degree, to his current injuries”. He answered, in one sentence only, “It is my opinion that the work-related incident on 20 October 2019 (sic) is a significant contributing factor to his current presentation and injuries”. At hearing, when taken to many documents contradicting that conclusion, Dr Weekes acknowledged they were not what was reported to him when giving his opinion.
As explained in Makita v Sprowles,[150] confirmed by the High Court in Lang v The Queen[151] and followed by the AAT in decisions such as Perich and Secretary, Department of Social Services,[152] HNGN and Military Rehabilitation and Compensation Commission[153] and Brazel and Australian Postal Corporation,[154] expert opinion evidence is of no material value where the facts or assumptions on which it is based are not stated and the reasoning for it is not expressed in a manner which permits a judgement to be made as to its reliability.
[150] [2001] NSWCA 305 at [59], [67] and [81]
[151][2023] HCA 29 at [6] – [7]
[152][2018] AATA 963 at [48]
[153] [2018] AATA 4096 at [93]
[154] [2007] AATA 1264 at [33] - [34]
Whether the applicant’s claimed pain arises out of his employment is a question of fact for the Tribunal. Dr Weekes’ opinion that there is a causal link between the original injury and his pain did not assist me because he gave no explanation as to why.
I am satisfied there is no pathology or diagnosis to support or explain the applicant’s claimed pain in his left shoulder or left arm which makes it impossible to say it arose out of the injury that occurred on 20 October 2009. The claim for compensation for chronic pain fails.

Conclusion

For these reasons, the decision under review will be affirmed.

Dates of hearing:

20, 21, 22 and 23 May 2025

Counsel for the Applicant:

Solicitors for the Applicant:

R Seit

National Compensation Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

K Slack

Sparke Helmore