Quinton v Mid Western Regional Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Quinton v Mid Western Regional Council [2023] NSWPIC 663
APPLICANT:	Thomas Quinton
RESPONDENT:	Mid Western Regional Council
MEMBER:	Rachel Homan
DATE OF DECISION:	11 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; accepted right shoulder injury; whether consequential conditions at left shoulder and cervical spine; evidence of degenerative or pre-existing arthritis at both disputed body parts; Held – applicant discharged onus in respect of the consequential left shoulder condition; respondent’s expert erroneously focused on cause of pathology rather than symptoms and restrictions; applicant failed to discharge onus in respect of the cervical spine; evidence of symptoms at cervical spine prior to injury; inadequate explanation of causal mechanism in applicant’s statement, treating evidence or applicant’s expert reports; matter remitted to President for referral to a Medical Assessor for assessment of bilateral shoulders.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained a consequential condition at the left shoulder as a result of the injury to his right shoulder on 9 April 2019. 2. Award in favour of the respondent with respect the allegation of a consequential condition at the cervical spine resulting from injury on 9 April 2019. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 9 April 2019 Body parts: Right upper extremity (shoulder) Left upper extremity (shoulder) - consequential Method: Whole Person Impairment. 4. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments; the Reply and all attachments; document attached to an Application to Admit Late Documents lodged by the respondent on 27 October 2023 and the attached statement of reasons.

STATEMENT OF REASONS

BACKGROUND

Mr Thomas Quinton (the applicant), who is 31 years old, was a diesel mechanic employed by the Mid Western Regional Council (the respondent).
On 9 April 2019, the applicant sustained an injury to his right shoulder while performing maintenance work above shoulder height. Liability for the injury was accepted by the respondent’s insurer.
The applicant subsequently made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the injury, relying upon an assessment of 15% whole person impairment (WPI) of the right upper extremity (shoulder), cervical spine and scarring made by Dr James Bodel on 11 June 2021.
In a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 December 2021, the insurer disputed liability in respect of any injury or consequential condition at the applicant’s cervical spine as well as liability to pay lump sum compensation.
Liability for a consequential condition at the applicant’s left shoulder was disputed in a notice issued on 8 February 2022.
The insurer maintained the decisions to dispute liability in respect of the conditions at the applicant’s cervical spine and left shoulder following internal review on 7 June 2022.
On 7 February 2023, the applicant’s solicitors amended the claim for lump sum compensation in reliance upon an assessment of 21% WPI of the right upper extremity (shoulder), left upper extremity (shoulder) and cervical spine made by Dr Bodel on
20 January 2023.
The liability disputes were maintained in further notices issued on 21 February 2023 and
26 May 2023.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 3 July 2023. The applicant seeks lump sum compensation in accordance with Dr Bodel’s more recent assessment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained a consequential left shoulder condition as a result of the injury to his right shoulder on 9 April 2019;
(b)     whether the applicant sustained a consequential cervical spine condition as a result of the injury to his right shoulder on 9 April 2019, and
(c)    the degree of permanent impairment resulting from the injury on 8 April 2019.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded to a preliminary conference on 4 August 2023. On that occasion, orders were made granting leave to the respondent to issue a Direction for Production to Kelso Medical Centre for the applicant’s clinical records. The matter was referred to conciliation conference and arbitration hearing.
The parties appeared for the conciliation conference and arbitration hearing in Sydney on
27 September 2023. The applicant was represented by Mr Bruce McManamey of counsel, instructed by Mr Sarim Attique. The respondent was represented by Mr David Saul of counsel, instructed by Mr William Murphy.
During the conciliation conference, it became apparent that the clinical records from Kelso Medical Centre had only been produced to the Commission earlier the same day. Directions were made for the parties to be given access to the clinical records. A timetable was established for the lodgement of any Application to Admit Late Documents and supplementary written submissions in respect of the clinical records. Oral submissions were heard in respect of the remainder of the evidence and the parties advised that the dispute would be determined on the material before the Commission at the conclusion of the timetable for late documents and written submissions.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    document attached to an Application to Admit Late Documents lodged by the respondent on 27 October 2023;
(d)    written submissions lodged on behalf of the respondent on 27 October 2023, and
(e)    written submissions lodged on behalf of the applicant on 20 November 2023.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 23 December 2021 and 25 July 2022.
In his first statement, the applicant described the injury to his right shoulder. The applicant said he felt a popping sensation and heard a “snap and crack” in his right shoulder. The incident was reported and the applicant was seen by the company doctor, Dr Geoffrey Bennett, in Mudgee.
The applicant’s condition deteriorated and he was referred for physiotherapy but it was of minimal benefit.
The applicant returned to work but found his tasks aggravated the shoulder condition. The applicant asked for a referral for an MRI scan due to experiencing significant pain and discomfort. The MRI was performed on or about 17 May 2019 and showed a very large labral tear.
The applicant sought advice from his usual general practitioner who referred him to an orthopaedic surgeon, Dr Haren Nandapalan. Dr Nandapalan recommended surgical stabilisation and repair. The applicant underwent surgery on 1 June 2020. After the operation, the applicant was told that the condition was far worse than anticipated and that a full right shoulder replacement surgery would be required in the future.
The applicant was cleared to work on light duties in mid-August 2020 but the condition relapsed in or around February 2021 and the applicant went off work.
With regard to the condition at his neck, the applicant stated,
“A consequence of my injury is tenderness at the base of my neck on both sides with restrictions on my neck.
The symptoms around my neck arose on or around late 2020. Not long after surgery and into physiotherapy, my recovery plateaued and the aches never left. Although, the doctor did inform me that as the shoulder straightens, the aches may leave. My shoulder also started to get really tender in the upper area of the shoulder, situated at the base of the neck both sides. I never really got back to very good movement. I would get significant pain in my shoulder area but also along my back in the scapula area. After sitting at a desk all day, regardless of how well I situate my shoulder, it would throb and ache along the neck.”
The applicant described a tight feeling and restricted movements in his neck.
The applicant said he had commenced new employment in October 2021.
In his supplementary statement, the applicant stated that his new employment had generally accommodated his restrictions but his condition had nonetheless deteriorated. The applicant’s hours were reduced and, on 17 June 2022, his employment was terminated due to suitable duties not being available.
The applicant said his neck pain had gotten significantly worse and he now required the use of Endone. The applicant also described the onset of symptoms in his left shoulder:
“In or about late 2020 to early 2021, I was starting to experience pain in my left shoulder after the surgery to my right shoulder.
As a result of my right shoulder injury, I was required to rely upon the use of my left shoulder more often. I would use my left arm for everything from drinking a beverage to holding my kids, sweeping the floor and driving a car. I was advised to teach myself to use my left arm to help preserve the time till the surgeon could perform the surgery on my right shoulder.”
The applicant consulted his exercise physiotherapist about the pain in his left shoulder as well as his general practitioner, Dr Melike Nadarajah. The applicant was referred for an ultrasound scan on or about 25 January 2022. Following the scan, the applicant was referred back to Dr Nandapalan, who recommended injections.
The applicant underwent an injection which provided some relief. The applicant was also advised to consult a physiotherapist and have remedial massages but liability for this was declined by the insurer.
The applicant said he was unable to push, pull, lift or use both arms because of pain to his shoulders and neck. The applicant struggled to sit for long periods of time and his sleep was disturbed. The applicant was reliant on pain medication and anti-inflammatory gel to treat the pain in his neck and shoulders.

Treating evidence

The clinical notes of the Kelso Medical Centre include a consultation on 21 March 2017 in relation to pain in the left neck area. On examination, the applicant had mild localised tenderness and mildly restricted range of motion. The applicant was given a medical certificate and prescribed analgesia and stretching exercises.
The clinical notes of Mudgee Medical Centre include a note recorded by Dr Geoffrey Bennett on 16 April 2019, as follows:
“plant mechanic for midwestern council
pulling on spanner above head height, spanner gave way
heard pop with pain right shoulder 9/4
ongoing pain
on examination full rom active passive some impingment
rotator cuff testing normal
neg apprehension test
long head biceps intact”
The applicant was referred for a right shoulder ultrasound and, on 14 May 2019, was referred for an MRI scan of the shoulder after reporting ongoing pain. The applicant was noted to be wearing a sling for pain relief.
The applicant was referred to Dr Nandapalan on 5 June 2019. On 2 September 2019,
Dr Bennett noted that Dr Nandapalan had suggested a SLAP repair.
The applicant underwent surgery on 1 June 2020 and, in a report dated 17 June 2020,
Dr Nandapalan recorded that the applicant was found to have Grade 3 osteoarthritis and a frayed, irreparable labrum. Dr Nandapalan performed some chondroplasty and a subacromial decompression. The applicant was referred for physiotherapy.
The applicant was subsequently noted to have intermittent paraesthesia in the median nerve distribution and referred for nerve conduction studies. A report prepared by Dr Nidhi Garg, dated 19 January 2021, indicated the study was normal.
The applicant continued to report right shoulder symptoms aggravated with activity at reviews with Dr Nandapalan and his general practitioners.
On 13 October 2021, the applicant told his general practitioner, Dr Melike Nadarajah, that he was happy with his new job but,
“also getting pain on other shoulder as well – compensating
Seeing physio for it
NSAIDs helps – taking sparingly”
On 10 December 2021, Dr Nadarjah recorded:
“He has been having left shoulder pain since 6 month
New cert issued”
On 18 January 2022, the applicant reported to Dr Nadarajah that he was starting to feel unstable and was experiencing pain at the left shoulder.
An ultrasound of the left shoulder was performed on 25 January 2022 and revealed a small tear and associated mild subdeltoid bursitis. The applicant was referred to Dr Nandapalan in relation to the left shoulder on 29 January 2022.
Dr Nandapalan reported on 9 February 2022:
“Over the last couple of months he has been experiencing increasing pain over the anterolateral aspect of his shoulder. It has progressively become worse now requiring Panadeine Forte at nighttime to sleep.”
The applicant was referred for an MRI and cortisone injection. The MRI, which was performed on 22 February 2022 was reported to show mild supraspinatus tendinosis, mild AC joint arthrosis and moderate glenohumeral joint arthrosis with a glenohumeral joint effusion.
On 3 March 2022, Dr Nandapalan reviewed the MRI findings and reported:
“Unfortunately the cortisone injection gave him little to no benefit. They did aspirate quite a significant amount of fluid from the joint at the same time but the MRI did demonstrate that he has unfortunately arthritis especially involving the posterior aspect of his glenoid. This is a similar picture to the right hand side but he also has a bit of AC joint arthritis which he is slightly symptomatic of.
I have explained to Thomas with bilateral shoulder arthritis the thought does come to my worry is suffering from an inflammatory arthropathy and he may be beneficial from a rheumatology point of view or it could just be bad genetics and design of his shoulders as he does not suffer from any pain or arthritis in any other joints. The problem with this for Thomas is he is quite young. He is far too young to consider arthroplasty at this stage. I would ideally like him to drag it out until at least he is 50.”
The applicant was referred to an exercise physiologist and physiotherapist for management of ongoing bilateral shoulder osteoarthritis pain.
On 10 March 2022, the applicant told Dr Nadarajah that his left shoulder was feeling better after the cortisone injection and the draining of fluid from his left shoulder. The applicant had “switched back to using his right shoulder” and was now experiencing severe pain.
A SIRA Certificate of Capacity issued by Dr Nadarajah dated 24 March 2022 noted “bilateral osteoarthritis” at both shoulders and stated,
“Also developed left shoulder pain since 6 months”.
A handwritten annotation on the certificate, signed by Dr Nadarajah, stated,
“Also started to have neck pain as well”
The applicant reported a flare up of right shoulder pain to Dr Nandapalan in April 2022.
On 28 September 2022, the applicant was referred for an MRI of the cervical spine due to “pain at base of neck, radiating to shoulder”. The report identified mild-moderate right C3/4 foraminal bony encroachment.
The applicant was referred to Dr Behzad Eftekhar for “7/10” neck pain and pins and needles in his right hand on 11 October 2022.
Upper limb nerve conduction studies performed on 1 December 2022 were reported to be normal.
On 10 January 2023, Dr Nadarajah prepared a report, apparently in response to a series questions. The letter stated the applicant had,
“mild to moderate osteoarthritis of the C3/4
His symptoms started first January 2022
Severity 6/10, worse on driving and sitting in front of computer, pain becomes severe after 15 minutes use of computer and up to 5 hours driving”
With regard to the left shoulder, Dr Nadarajah stated,
“His right shoulder injury caused him to use his left shoulder more to compensate and developed AC joint arthritis and synovitis.”
Pain specialist A/Prof Marc Russo was seen in relation to bilateral shoulder pain and occipital headache in March 2023. A/Prof Russo diagnosed:
“bilateral chronic subacromial bursitis and he has developed functional entrapment of his occipital nerve from his forward head posture.”

Dr Bodel

The applicant relies on medicolegal reports prepared by orthopaedic surgeon, Dr James Bodel, dated 31 October 2019, 11 June 2021, 4 May 2022 and 20 January 2023
In his first report, Dr Bodel took a history of the injury to the applicant’s right shoulder.
Dr Bodel said the MRI scan showed a significant abnormality with a very large labral tear anteriorly and evidence of glenohumeral degenerative change which was unusual in a person so young. The applicant gave a history of no prior problems with the shoulder.
Dr Bodel diagnosed a rotator cuff injury and labral tear as a result of the work injury on
9 April 2019. The applicant had ongoing pain and stiffness in the shoulder and a sense of instability. Dr Bodel said a need for surgical treatment had arisen as a consequence of the work injury.
In his second report, Dr Bodel noted that the applicant had undergone labral repair and biceps tenodesis surgery on 1 June 2020 and made a reasonable recovery. Although the applicant was able to return to work, he had to go off again in February 2021.
On this occasion, Dr Bodel noted a slight restriction of neck flexion, extension and rotation in all directions and asymmetry of neck movements, which he said was probably associated with the injury. Dr Bodel diagnosed,
“…aggravation, acceleration, exacerbation and deterioration of some degenerative change in the cervical spine.”
Dr Bodel made an assessment of 7% WPI at the cervical spine.
In his report dated 4 May 2022, Dr Bodel diagnosed consequential injuries to the left shoulder and cervical spine. Dr Bodel took a history of the incomplete resolution of symptoms and right shoulder following the surgery. The applicant began to develop left shoulder girdle pain due to saving that site to protect the right shoulder which was still recovering from surgery. The applicant had seen his general practitioner in about
December 2021 and had an ultrasound done which showed evidence of tendinitis and bursitis in the supraspinatus tendon. The applicant had undergone injections on three separate occasions to the left shoulder under ultrasound CT guidance.
Dr Bodel noted the applicant said he had been able to perform work in his new job as he was able to be very selective about avoiding strenuous use of his shoulders and the employer was quite understanding. Dr Bodel noted that the applicant owned 300 acres and leased another 2000 acres. The applicant had been struggling with his farming activities and was being assisted by his father.
Dr Bodel recorded findings on examination as follows:
“He is viewed by Telehealth without particular difficulty. He does have a slight restriction of neck movement which is clearly observed by Telehealth and was evident when I saw him last time. He has a restricted range of movement in all directions but particularly rotation to the right. He has the restricted range of shoulder movement and today there is a slight restriction of shoulder movement on the left side which was not present when I saw him last time. He also demonstrates a painful arc of movement particularly in abduction in both shoulders.”

Dr Bodel gave the opinion:
“The injury to the right shoulder was a frank injury that occurred at work on 09 April 2019 and the injury to the left shoulder and the neck are consequential injuries caused by the aggravation, acceleration, exacerbation and deterioration of the underlying disease process which is present in both areas.”
In his final report, Dr Bodel recorded a further history as follows:
“It is now 18 months since I saw him last. He reports that initially there was that improvement from the surgery on 01 June 2020, but after that it steadily deteriorated. He began to develop an increasing neck component to the complaint and was sent to see Professor Eftekhar, a neurosurgeon. He was by then developing numbness and tingling into the right hand, particularly the thumb, index and middle finger and occasionally the left hand involving the ring and little finger. He was told that he had ‘arthritis in the neck’.
In January or February 2022, further MRI scans were done of the left shoulder as there were now signs of bursitis in the shoulder and he had three cortisone injections which were of temporary benefit only. He has not been offered surgery for the neck or the shoulder at this point.”
On examination, Dr Bodel found:
“He complains of tenderness in the trapezius muscles at the base of the neck on the right side with guarding in that area. He has a reduced range of neck flexion, extension and rotation in all directions and this is most restricted on rotation to the right. He has a very restricted range of shoulder movement in each shoulder…”
With regard to the cause of the applicant’s neck and shoulder symptoms, Dr Bodel stated:
“He suffered the injury to his right shoulder in the specific event that occurred at work on 09 April 2019 and has developed a consequential condition involving the neck and left shoulder while being unable to use his right shoulder in a normal manner. He has favoured the other shoulder and the neck to compensate for the pain, stiffness and weakness in the region of the right shoulder, which is his original injury.”
Dr Bodel then made an impairment assessment that included the neck and left shoulder in addition to the right shoulder.

Dr Bosanquet

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr John Bosanquet on 28 October 2021, 13 September 2022 and 4 April 2023.
In his first report, Dr Bosanquet, took a history of the injury to the applicant’s right shoulder and the subsequent surgery by Dr Nandapalan. The applicant reported a dull constant ache with no pain free days. The shoulder was worse with repeated movement and various activities including long periods of driving. The applicant had some paraesthesia in his right arm but nerve conduction studies had not revealed any abnormality. The applicant reported difficulty holding his children and used his left arm for that. The applicant reported recent pain in the left shoulder.
On examination, the applicant was noted to have reduced range of movement at the right shoulder but full range of movement in his left shoulder. The applicant was tender in the mid right trapezius and had a slight restriction of cervical movement. Retraction on his right arm with abduction of his cervical spine to the left caused some symptoms in the arm.
Dr Bosanquet diagnosed an injury to the right shoulder in the form of a large labral tear and some underlying chondral loss in the glenoid and humeral head.
Asked whether there was any pathology at the applicant’s cervical spine, Dr Bosanquet responded:
“I have not seen any radiological investigations of his cervical spine. He had an almost full range of movement. I do not consider there is any pathology in his cervical spine resulting from the injury to his right shoulder.”
In response to a series of questions, Dr Bosanquet expressed the view that there was no evidence the applicant had “injured” his cervical spine.
In his second report, Dr Bosanquet noted that the applicant had worked as a pastoral hand until May 2022.
With regard to the left shoulder, Dr Bosanquet noted:
“He developed pain in his left shoulder in early 2021 which was diagnosed as ‘tendonitis’. He had increasing problems as he was using the left shoulder more than the right. He saw his GP who performed an ultrasound showing a supraspinatus tear. He was then referred back to Dr Nandapalan who performed an MRI scan. This showed no tear but early arthritis in the joint. Dr Nandapalan recommended remedial massage and did not recommend surgery. Thomas Quinton has had 3 cortisone injections, CT guided, into the shoulder and continued at work with restrictions.”
Dr Bosanquet also noted that the applicant had developed pain his neck.
Examination of the left shoulder was similar to the right and the applicant described some tightness in the cervical spine on rotation to the left.
Dr Bosanquet expressed the view that the applicant had arthritis in both shoulders and possible early arthritis in the cervical spine.
Dr Bosanquet maintained his opinion that there was no “injury” to the cervical spine. Asked whether there was any condition at the cervical spine which had resulted from the right shoulder injury, Dr Bosanquet responded:
“Any condition in his cervical spine does not result from the injury suffered on 9 April 2019. He has not had any radiological investigations but it is likely that he has some underlying degenerative changes which are constitutional.”
Asked whether there was any condition at the left shoulder which had resulted from the right shoulder injury, Dr Bosanquet responded:
“The arthritis in his right shoulder is constitutional and unrelated to the injury to the right shoulder. He does have similar arthritis in the left shoulder. This is unrelated to the right shoulder injury.”
In his final report, Dr Bosanquet noted that the applicant had been seen by Dr Nandapalan in relation to the left shoulder. With regard to the cervical spine, Dr Bosanquet noted that the applicant had been referred to a Dr Eftekhar, who diagnosed foraminal encroachment at C4/5 secondary to arthritis. A cortisone injection had been suggested. The applicant reported a pinching sensation on the right side of his neck and pain with prolonged flexion.
Dr Bosanquet diagnosed cervical spondylosis with arthritis but said this was unrelated to any injury or his work and was constitutional. It was noted that the applicant was quite young to have these types of changes. Dr Bosanquet disagreed with Dr Bodel’s reasoning as to the relationship between the cervical spine condition and the right shoulder injury stating:
“I, with respect, do not agree with this reasoning. There is no scientific basis for this conclusion. The pre-existing arthritis in his right shoulder, that has been aggravated is unrelated to any arthritis in his cervical spine and there is no link between the two.”
Dr Bosanquet maintained his view that the arthritis in the left shoulder was constitutional and unrelated to the right shoulder injury, stating:
“Dr Bodel implies that the left shoulder was normal prior to the right shoulder injury. Thomas Quinton has constitutional arthritis in the left shoulder unrelated to the injury on the right side. The AMA Guides to Disease and Injury Causation 2nd Edition clearly states that there is no scientific evidence for implicating the contralateral upper limb as a result of an injury to the other side.”

Dr Hitchen

A medicolegal opinion was previously procured by the insurer from orthopaedic surgeon,
Dr Paul Hitchen, in connection with the applicant’s claim for compensation for the costs of his right shoulder surgery.
Dr Hitchen prepared a report on 15 July 2019, in which he took a history of the right shoulder injury. Dr Hitchen noted that Dr Nandapalan had recommended an arthroscopic labral repair with a subpectoral biceps tenodesis.
Dr Hitchen performed an examination and considered the radiological investigations before giving the opinion:
“The examination and in particular radiological investigations especially the MRI reveal that he has a significant pre-existing condition affecting his right shoulder. He is a young man to have glenohumeral osteoarthritis, but clearly this is evident on his MRI. Glenohumeral arthritis in the early stages will cause aching and mild loss of motion of the shoulder joint. He is also prone to clicking and cracking sensations as the raw bone surfaces rub together. The MRI has also shown a chronic posterior labral lesion or SLAP tear. Mr Quinton denies any previous injuries to the shoulder that he can recall, so the circumstances of the labral detachment in years gone by remain unclear. Suffice to say today he had no clinical signs of posterior instability. One can be reassured that the SLAP tear did not occur at the time of injury as there is not surrounding bone oedema at the glenoid or humeral head. Conversely his glenoid shows chronic changes of cyst and geode formation that would have taken some years to develop.”
Dr Hitchen described the workplace injury as “a transient symptomatic aggravation of an underlying condition” which would have lasted a matter of days. And would not have altered the natural outcome for the shoulder.
With regard to the proposed surgery, Dr Hitchen gave the opinion:
“With respect to the request for surgery for a shoulder arthroscopy and SLAP repair, I do not believe that the procedure stands a high or reliable chance of substantially improving his pain and eliminating his symptoms. It will not return range of motion to the shoulder. Attempting a repair of the labrum back onto cystic arthritic bone and is unlikely to give a good hold on the already degenerative labrum. Further, the procedure will not eliminate the arthritis is his shoulder afflicting the glenoid and humeral head. He will still have crepitus, catching sensation, and be prone to aching and restricted motion. I note his shoulder is not unstable. Further, the labral tear is chronic and I do not believe has been induced or accelerated by the work accident. For all of these reasons I would not deem the requested surgery as being reasonably necessary. It stands a low chance at alleviating all of his symptoms.”

Applicant’s submissions

The applicant referred to the description of the right shoulder injury in his written statement and the deterioration of his right shoulder condition, culminating in surgery. The applicant noted that the condition at his right shoulder was described in the examination performed by Dr Bodel at the time of his first report.
The applicant’s evidence was that neck symptoms began to arise in late 2020. The applicant acknowledged that there were no contemporaneous complaints of a neck injury but submitted that the condition at the cervical spine was consequential to the right shoulder injury. The applicant continued to have pain and restriction at his right shoulder.
The applicant’s left shoulder symptoms were described in his supplementary statement. The applicant described using his left arm for everything. In this way, his non-dominant arm was exposed to much greater usage than would otherwise have been the case had it not been for the right shoulder injury.
The applicant submitted that an opinion on causation had been given by Dr Bodel. Although the neck was not mentioned in Dr Bodel’s first report, this was consistent with the applicant’s evidence that it was not causing problems at that time.
The applicant said that it was uncontroversial that he had degenerative change at the cervical spine and left shoulder. In the case of a consequential condition, it was not necessary for the applicant to demonstrate a change in the pathology. The onset of symptoms related to the workplace injury was sufficient. The applicant referred to the tests in Kooragang Cement Pty Ltd v Bates,[1] Murphy v Allity Management Services[2] and Kumar v Royal Comfort Bedding.[3]
[1] (1994) 10 NSWCCR 796 at [810].
[2] [2015] NSWWCCPD 49.
[3] [2012] NSWWCCPD 8.
The applicant submitted that he had continuing disabilities at his right shoulder which had played a role in the onset of symptoms at the neck and left shoulder. The applicant submitted that the Commission would accept Dr Bodel’s opinion on the causal connection.
The applicant submitted that the report of Dr Hitchen could be put to one side as it dealt with a different dispute.
The applicant noted that Dr Bosanquet took a history of the applicant using his left arm differently and experiencing an onset of pain in the shoulder. The evidence as to favouring was volunteered to Dr Bosanquet and, on examination, he found tenderness and restriction in the left shoulder and cervical spine.
Dr Bosanquet expressed the opinion that employment was not the main contributing factor to the cervical spine symptoms or the aggravation of a disease process. In doing so, the applicant submitted that Dr Bosanquet had asked himself the wrong question. The applicant did not claim to have sustained an ‘injury’ at the cervical spine.
The applicant noted the pathology at the left shoulder revealed on ultrasound. The restriction of movement findings on examination by the experts in their various reports showed a deterioration in the applicant’s left shoulder.
In his more recent reports, Dr Bosanquet again focused on the pathology in considering the disputed conditions and, in doing so, again asked the wrong question. Dr Bosanquet clearly based his opinion on whether there had been a change in the underlying pathology, which was not the test.
The applicant submitted that Dr Bosanquet was in error in focusing on the underlying arthritis and not the applicant’s experience of symptoms. The only doctor who asked the correct question was Dr Bodel. Dr Bodel’s explanation of the causal relationship was consistent with the other evidence and explained the deterioration in the applicant’s condition.

Respondent’s oral submissions

The respondent expressed agreement with the applicant’s submissions as to the applicable case law.
With regard to the neck condition, the respondent noted that no complaint of neck symptoms had been made to the applicant’s general practitioner at all other than a record in 2017 referring to restriction of movement in the cervical spine.
The respondent noted that the applicant had complained of a range of other symptoms in the same period.
The respondent referred to the report of Dr Hitchen with regard to the right shoulder surgery. It was noted that Dr Hitchen considered that surgery to the right shoulder would produce a poor outcome, which was indeed the case. Dr Hitchen also identified the issue of widespread arthritis, a matter which had been confirmed on radiological examination.
The respondent noted that Dr Bosanquet attributed the problems in the applicant’s neck and left shoulder to arthritis. Dr Bodel, on the other hand, said the conditions were both due to overuse, although it is not clear how the body parts were being overused. The respondent noted that the applicant ran a family farm was required to do physical activities in respect of his property.
The respondent observed that no complaints of neck or left shoulder symptoms were made to Dr Bodel at the time of his first report. At the time of his 11 June 2021 report, reference was made to restrictions in the neck but no reference made to left shoulder problems.
The applicant told Dr Russo that symptoms had occurred about six months after surgery.
Dr Bodel did not explain the timing of the onset of symptoms. It was possible that the symptoms were incidental to the applicant’s subsequent employment.
The respondent described Dr Bodel’s opinion that there was a “consequential injury” as a bare ipse dixit. Although a history of favouring the left side whilst recovering from surgery was given to Dr Bodel, the same history was not reflected in the clinical notes. The respondent submitted that there was a Makita (Australia) Pty Ltd v Sprowles[4] issue with
[4] [2001] NSWCA 305.
Dr Bodel’s report.
The respondent acknowledged that the applicant complained to his general practitioner of pain in his left shoulder due to compensating on 13 October 2021 and referred to left shoulder pain for the last six months in consultation on 10 December 2021. The respondent submitted that this was a retrospective recording of pain. No prior complaint had been made to the general practitioner about the left shoulder or neck.
The respondent observed that the applicant was referred to Dr Nandapalan in relation to the left shoulder. Dr Nandapalan recorded symptoms and referred the applicant for investigations but did not relate the applicant’s symptoms to overuse of the right shoulder following the injury. The respondent submitted that the pathology identified on the MRI scan could not possibly be caused by overuse, consistently with the opinion of Dr Bosanquet.
Dr Nandapalan had commented that the applicant’s shoulder condition could be the result of bad genetics, which was consistent with Dr Hitchen’s view of the right shoulder.
The respondent noted that Dr Russo diagnosed bursitis of the left shoulder but gave no evidence to suggest that the pathology was caused by the applicant’s right shoulder injury.
The respondent observed that no symptoms at the cervical spine were mentioned to
Dr Nandapalan and the only evidence dealing with the cervical spine were the reports of
Dr Bodel.
The respondent acknowledged that the bar was low for establishing a consequential condition but submitted that the applicant was still required to demonstrate a material contribution from the right shoulder injury to the symptomology at the left shoulder and cervical spine. The applicant bore the onus and there were a number of factors mitigating against the applicant’s case.
The respondent observed that the first complaints of symptoms occurred many years after the right shoulder injury. No explanation had been provided as to how the right shoulder surgery impacted upon the left shoulder and the cervical spine. Dr Bodel attributed the symptoms to overuse without explaining how this had caused the complaints as opposed to just the natural progression of the applicant’s constitutional arthritis.
Given the significant pre-existing condition, the respondent submitted that the Commission would not be satisfied of a material contribution to the conditions at the applicant’s cervical spine and left shoulder from the right shoulder injury.

Applicant’s oral submissions in reply

The applicant submitted that although there were no clinical notes referring to cervical spine symptoms, the applicant had been referred for an MRI of the cervical spine by his general practitioner. In these circumstances it was clear that there had been complaint to the doctor about cervical spine symptoms even though they were not recorded. The referral to
Dr Eftekhar on 11 October 2022 also left no doubt that complaints about neck pain had been made to the general practitioner.
The applicant submitted that the examination findings supported by the independent experts established that there was something wrong with the neck. The issue was causation. Although there was reference to the applicant’s work in the evidence it was not relevant. The question was whether there was compensatory overuse of the body parts. The applicant himself gave evidence that he was compensating for his right shoulder injury.
The applicant submitted that the references to the cervical spine and the left shoulder in the WorkCover certificates were in effect opinions that those conditions were causally related to the shoulder injury from the general practitioner.
The applicant submitted that it was not suggested that the applicant’s arthritis was caused by overuse but rather overuse explained the onset of symptoms.

Supplementary written submissions

Both parties lodged supplementary written submissions addressing the report by
Dr Nadarajah dated 10 January 2023.
The respondent drew attention to Dr Nadarajah’s evidence that symptoms in the neck first started in January 2022. This contrasted with the applicant’s evidence of an onset of symptoms in late 2020.

The respondent submitted that the report of Dr Nadarajah provided a different history of the onset of symptoms and associated them with driving and sitting in front of a computer. The respondent submitted that this history supported its submissions that the applicant’s cervical spine condition was not related to the right shoulder injury.
The applicant relied on Dr Nadarajah’s opinion in that report that the left shoulder condition was a consequence of the accepted right shoulder injury.
The applicant noted that Dr Nadarajah expressed no opinion on causation for the cervical pain but was not asked to do so. The applicant submitted that it was inconsequential whether the cervical symptoms commenced in 2020 or 2022 as he relied upon a consequential condition. Dr Bodel’s opinion did not depend upon symptoms having commenced in 2020. Abnormality at the neck was found in 2019 and impairment at the neck assessed in his 2021 report.
The applicant submitted that Dr Nadarajah’s references to driving and sitting in front of a computer merely described the circumstances where more pain was noticed. Dr Nadarajah’s report was said to be consistent with the applicant’s case.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
A condition that “results from” an injury may also be compensable. The test for establishing a consequential condition can be distinguished from that required to establish an “injury”. In this regard, the comments of Deputy President Roche in Moon v Conmah[5] at [45]-[46] are relevant:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[5] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[6] Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[6] [2013] NSWWCCPD 4.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[7] Snell DP referred to the decisions in Moon v Conmah[8] and Kumar v Royal Comfort Bedding[9] and observed:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.”
[7] [2016] NSWWCCPD 23.
[8] [2009] NSWWCCPD 134.
[9] [2012] NSWWCCPD 8.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[10] where Kirby P (as his Honour then was) said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[10] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained consequential conditions affecting his left shoulder and cervical spine. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[11] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[11] [2008] NSWCA 246.
In this case, there is no dispute that the applicant sustained an “injury” to his right shoulder on 9 April 2019. There are, however, disputes as to whether conditions at the applicant’s left shoulder and cervical spine have resulted from that injury.
The medical evidence before the Commission clearly identifies pathology at both the applicant’s left shoulder and cervical spine. Both body parts have been radiologically investigated and both parties’ experts have identified degenerative pathology at those sites. Where the parties differ is on the question of whether symptoms and restrictions at the disputed body parts have resulted from the accepted work injury.
The treating medical evidence records complaints of left shoulder symptoms from
13 October 2021 onwards. The first account of those symptoms recorded in the clinical notes associated them with “compensating” for the right shoulder injury.
Complaints of ongoing symptoms and restrictions at the right shoulder and treatment, including surgery, had consistently been recorded in the treating evidence up until that point.
Left shoulder symptoms over the previous six months were noted at a consultation on
10 December 2021. On 10 March 2022, the applicant reported having “switched back” to using his right shoulder in the context of the left shoulder symptoms, suggesting he had been using the left shoulder to compensate for the injured right shoulder previously. From early 2022 onwards, the left shoulder condition was recorded in the SIRA certificates of capacity issued in respect of the right shoulder injury.
The left shoulder was investigated through ultrasound and MRI scan. The applicant was referred to orthopaedic surgeon Dr Nandapalan and underwent cortisone injections.
Dr Nandapalan described the pathology at the applicant’s left shoulder as similar to the right shoulder. The applicant had arthritis, especially involving the posterior aspect of the glenoid but also the AC joint. The arthritis was said to be symptomatic.
Dr Nandapalan went on to express the view that the bilateral shoulder arthritis in a relatively young person raised questions around whether there was an inflammatory arthropathy or “just bad genetics”. It was not suggested that the pathology at the shoulder was caused by the injury to compensation or overuse following the right shoulder injury. Nor did
Dr Nandapalan comment on any relationship between the symptoms at the left shoulder symptoms and the right shoulder injury.
Dr Nadarajah did comment on the matter. The inclusion of the left shoulder in the certificates of capacity gave an indication of Dr Nadarajah’s view as to the relationship between the left shoulder symptoms and the right shoulder injury. A more explicit opinion was given in the report from Dr Nadarajah dated 10 January 2023, in which she stated that the right shoulder injury caused the applicant to use his left shoulder more to compensate, leading to AC joint arthritis and synovitis.
This opinion from Dr Nadarajah is consistent with both her clinical notes and the statement evidence from the applicant.
The applicant has described relying on his left shoulder more due to the right shoulder injury. The applicant said he used his left arm for everything, in order to preserve the right shoulder.
The view expressed by Dr Nadarajah is also consistent with the expert opinion given by
Dr Bodel. Left shoulder symptoms were first identified in Dr Bodel’s third report in May 2022. That timing coincides broadly with the reporting of symptoms in the clinical notes. Dr Bodel said the applicant began to develop left shoulder girdle pain due to saving that site to protect the right shoulder which was still recovering from surgery. Dr Bodel expressed the opinion that the symptoms were the result of an aggravation of the underlying disease process in the shoulder.
Whilst Dr Bodel’s reasoning could certainly have been more fulsome, I am of the view that it is sufficiently articulated, particularly when read in the context of the applicant’s statement evidence and the evidence from Dr Nadarajah.
The respondent has relied on the opinions expressed by Dr Bosanquet to dispute the applicant’s claim. The history recorded by Dr Bosanquet in relation to the left shoulder was, however, consistent with that recorded in the applicant’s evidence. Dr Bosanquet said the applicant developed increasing problems with the left shoulder as he was using it more than the right. Dr Bosanquet’s examination produced evidence of restrictions in the left shoulder and he agreed that the applicant had arthritis in the shoulder.
Dr Bosanquet did not consider that the arthritis was caused by the right shoulder injury, describing it as constitutional. As noted by the applicant’s submissions, however, it is only necessary for the applicant to demonstrate that symptoms or restrictions in the left shoulder resulted from the right shoulder injury. The presence of constitutional arthritis is not determinative. I accept the applicant’s submission that Dr Bosanquet’s report erroneously focussed on the cause of the pathology at the shoulder as opposed to the symptoms and restrictions at the shoulder.
For similar reasons, I do not find Dr Hitchens’ views as to the presence of a constitutional arthritic process of assistance in determining whether symptoms and restrictions were caused by the right shoulder injury.
There is no suggestion in the material before me that the applicant’s left shoulder was symptomatic or restricted prior to the right shoulder injury. Although there was a delayed onset of symptoms, this is not inconsistent with the allegation of a consequential condition as opposed to injury to the area.
Although the respondent has suggested that the symptoms may have been causally related to the applicant’s subsequent employment or his personal farming activities, I note that the evidence discloses that the applicant was selective in the way he performed his work and was able to accommodate his injury in the performance of such work.
A clear causal mechanism has been identified in the applicant’s statement evidence and the medical evidence. The applicant described using his non-dominant left arm to perform a range of tasks in order to preserve his injured right shoulder including, holding his young children, household chores and driving. In a person with underlying arthritis, it is not difficult to perceive how this altered use of the shoulder could, over time, aggravate or render the arthritis symptomatic.
After weighing the evidence, I am satisfied, on the balance of probabilities, that a condition at the applicant’s left shoulder resulted from the right shoulder injury.
The evidence in relation to the alleged consequential cervical spine condition is considerably weaker.
The applicant has described an onset of symptoms of pain, tightness and restricted movement in the neck area following the right shoulder injury. The applicant described symptoms from the adjacent scapula or trapezius area particularly after sitting at a desk all day. The applicant has not, however, explained how the right shoulder injury caused him to compensate or use his neck differently.
Importantly, the applicant’s statement evidence was also silent as to the neck tenderness and restricted range of motion at the cervical spine reported prior to the injury in the clinical notes in March 2017. Although the notes suggest these symptoms and restrictions were able to be treated with analgesia and stretches, they are significant given the evidence of underlying or pre-existing degenerative change at the cervical spine.
There is no reference to cervical spine symptoms after the right shoulder injury in the clinical notes. I do, however, accept that symptoms must have been reported by late 2022 as the applicant was referred for MRI of the cervical spine and specialist review by Dr Eftekhar. The presence of pathology and symptoms at the cervical spine was confirmed by Dr Nadarajah in her 10 January 2023 report.
The only suggestion in the treating evidence that the cervical symptoms may have some relationship to the right shoulder injury appears in the handwritten annotation referring to neck pain in the certificate of capacity issued on 24 March 2022. No explanation of a causal relationship or indication of a causal mechanism was provided in either the certificates, clinical notes or in Dr Nadarajah’s report of 10 January 2023. Nor was this addressed in any evidence from Dr Eftekhar.
While the absence of a clear causal mechanism or explanation in the lay and treating evidence would not necessarily be determinative, it is a circumstance that renders the expert medicolegal opinion more critical.
Dr Bodel described findings on examination at the cervical spine and expressed the view that degenerative change at the cervical spine had been aggravated by the right shoulder injury. No explanation of how the aggravation occurred was proffered, other than to say the applicant “favoured the neck to compensate for the pain, stiffness and weakness in the region of the right shoulder”. While the applicant has explained how he used the left shoulder more to compensate for the right shoulder, no explanation has been given by the applicant or any of the doctors of the mechanism by which the neck was “favoured”. Nor is such a mechanism obvious.
Alternative potential causes for the neck symptoms and restrictions are identifiable on the evidence before me, most notably in Dr Russo’s reference to a forward head posture. It has not been suggested that the applicant’s forward head posture resulted from the work injury. Dr Nadarajah also described an increase in neck symptoms when using a computer and driving. There is, however, no adequate explanation of the mechanism by which the neck symptoms resulted from the right shoulder injury.
The temporal coincidence of cervical symptoms following the right shoulder surgery is insufficient to establish the requisite causal relationship on the balance of probabilities. Nor is the physical proximity of the cervical spine symptoms to the shoulder sufficient to establish that they resulted from the right shoulder injury. The mechanism is not obvious without explanation.
In these circumstances, noting Dr Bosanquet’s contrary opinion, reports of symptoms prior to the work injury and the presence of degenerative changes, I do not feel a sense of actual persuasion that the symptoms and restrictions at the applicant’s cervical spine resulted from the right shoulder injury.
In view of these findings, it is appropriate that there be an award for the respondent in respect of the claimed cervical spine condition and an award in favour of the applicant with respect to the left shoulder condition.
There will be an order remitting the matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment at both shoulders.

[2023] NSWPIC 663

11 December 2023