Roukos v Flight Centre Travel Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Roukos v Flight Centre Travel Group Ltd [2025] NSWPIC 221
APPLICANT:	Joslyn Roukos
RESPONDENT:	Flight Centre Travel Group Limited
MEMBER:	John Turner
DATE OF DECISION:	21 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66; injury to the lumbar spine not disputed; dispute as to injury to the right shoulder and consequential condition in the form of a sleep disorder; Kooragang Cement Pty Ltd v Bates, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, and State of New South Wales v Bishop cited; Held – award for the respondent in respect to the alleged injury to the right shoulder; applicant has suffered the alleged consequential condition in the form of a sleep disorder.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent in respect to the alleged injury to the right shoulder. 2. I find that the applicant has suffered the alleged consequential condition in the form of a sleep disorder. 3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 16 February 2019 – Personal Injury. Body systems / parts: lumbar spine, and nervous system (consequential condition). Method of Assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents with the exception of the report of Dr Anthony Johnson dated 16 September 2024 which appears at pages 202 to 207 of the attachments, and (c) this Certificate of Determination and Statement of Reasons. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Joslyn Roukos (applicant) brings proceedings against Flight Centre Travel Group Limited (respondent) in the Personal Injury Commission (Commission) in which she alleges that she sustained injury to her lower back and right shoulder on 16 February 2019 when whilst stepping up to sit on a stool, the stool gave way, and she fell. The applicant also alleges that as a result of the injuries sustained, she has suffered a consequential sleep condition.
The applicant claims compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for impairment of lumbar spine, right upper extremity (shoulder) and nervous system (sleep disorder).
It is not disputed that the applicant has sustained an injury to her lumbar spine.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has suffered a consequential sleep condition as a result of injury, and
(b) whether the applicant sustained injury to her right shoulder as alleged.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
9 May 2025. Mr Craig Tanner, counsel, instructed by Turner Freeman Lawyers, appeared for the applicant, who was present. Mr Stephen Harris, solicitor, of Moray and Agnew Lawyers, appeared for the respondent. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents with the exception of the report of Dr Anthony Johnson dated 16 September 2024 which appears at pages 202 to 207 of the attachments.

Oral evidence

No oral evidence was adduced.

Summary of evidence

The following is a brief summary of the evidence.

Right shoulder injury

The applicant had suffered from shoulder problems prior to the fall at work on
16 February 2019. It is the applicant’s evidence that on 12 May 2014 she attended on
[1] ARD pp. 1-2.
Dr Alvin Lam of the Rooty Hill Medical Centre at which time she reported that she had been experiencing increasing right shoulder pain for approximately six months. A cortisone injection was recommended and subsequently performed. It is the applicant’s evidence that following the cortisone injection she did not experience any ongoing symptoms for a number of years.[1]
It is the applicant’s evidence that in around early 2017 she began to experience increasing right shoulder as well as left shoulder symptoms. On 20 February 2017 she consulted her general practitioner (GP), Dr Ying Min Law, in respect to the symptoms who referred her for an ultrasound of both shoulders as well as prescribing Celebrex. The applicant received cortisone injections into both shoulders which the applicant states caused significant improvement in her symptoms such that she did not require ongoing treatment and had no work limitations.[2]
[2] ARD p. 2.
It is the applicant’s evidence, relevantly, that in the fall on 16 February 2019 she hit her head and injured her lower back and that she hit her right foot and right side of her body on a desk and that following the fall she experienced severe headaches and back pain.[3]
[3] ARD pp. 2-3.
It is the applicant’s evidence that a few days after the fall she began to notice pain in her neck and both shoulders, right shoulder worse than the left.[4]
[4] ARD p. 3.

On 19 February 2019 the applicant consulted the GP, Dr Qamar Rizvi, of the Rooty Hill Medical and Dental Centre. The clinical record of the consultation records that the applicant reported that she had suffered a fall at work three days prior. The applicant complained of lower back pain. The clinical record of the consultation does not record any mention of either shoulder.[5]
[5] ARD p. 108.
The applicant consulted Dr Law on 20 February 2019 at which time she reported back pain as well right thigh pain. The clinical record of the consultation does not record any mention of either shoulder.[6]
[6] ARD p. 109.
On 7 March 2019 the applicant consulted Dr Law. The clinical record of the consultation records that the applicant was thinking about claiming workers compensation with the applicant reporting that her back was still sore. The clinical record of the consultation does not record any mention of either shoulder.[7]
[7] ARD p. 110.
On 2 May 2019 the applicant consulted Dr Law. The clinical record of the consultation records that the applicant was stressed but coping following her mother receiving an adverse diagnosis. The applicant complained of pain around her shin. The clinical record of the consultation records no reference to the right shoulder.[8]
[8] ARD p. 110.
On 8 May 2019 and 23 May 2019 the applicant attended on Dr Law for repeat prescriptions. The clinical records of the consultations record no mention of either shoulder .[9]
[9] ARD p. 111.
On 19 September 2019 the applicant consulted the GP, Dr Annette Deada, for bilateral shoulder pain. The clinical record of the attendance records no history in respect to the development of the shoulder conditions.[10] This is the first mention, some seven months after the fall at work on 16 February 2019, of any shoulder complaints in the clinical records.
[10] ARD p. 354.
On 4 October 2019 the applicant consulted Dr John Lee in respect to bursitis of both shoulders. The doctor explained the possible causes and the management. The clinical record of the consultation does not record what those possible causes were.[11]
[11] ARD p. 354.
On 4 October 2019 an ultrasound was performed of both shoulders.[12]
[12] ARD p. 362-363.
On 5 October 2019 bilateral shoulder injections were performed.[13]
[13] ARD p. 364.
On 16 October 2019 the applicant consulted Dr Law who noted that the applicant’s mother had passed away. The clinical record of the consultation records that the applicant was suffering from ongoing back pain which radiated down both thighs. The applicant wished to claim workers compensation. The clinical record contains no mention of either shoulder.[14]
[14] ARD p. 112.
On 17 October 2019 the applicant consulted Dr Law. The clinical record of the consultation records that her back was still sore but contains no mention of either shoulder.[15]
[15] ARD p. 113.
On 31 October 2019 the applicant consulted Dr Law. The clinical record of the consultation records the reason for the attendance as “workcover” and notes that the back was still sore but records no mention to either shoulder.[16]
[16] ARD p. 114.
On 1 November 2019 the applicant consulted Dr Law. The clinical record of the consultation contains references to the applicant’s back but contains no mention of either shoulder.[17]
[17] ARD p. 114.
On 7 November 2019 the applicant consulted Dr Lee for right shoulder bursitis and tendonitis. The clinical record again records that the doctor explained possible causes and its management but again does not record what those possible causes were.[18]
[18] ARD p. 354-355.
On 9 November 2019 the applicant consulted the GP, Dr Thao Minh Quach. The clinical record of the consultation records that the applicant was struggling with left shoulder pain. The clinical record contains no history indicating that the shoulder had been injured in the fall at work.[19]
[19] ARD p. 115.
On 9 November 2019 an injection was performed to the right shoulder.[20]
[20] ARD p. 365-366.
On 12 November 2019 an injection was performed to the left shoulder.[21]
[21] ARD p. 205.
On 14 November 2019 the applicant consulted Dr Law. The clinical record of the consultation records the reason for the attendance as “workcover” and makes reference to the applicant’s back pain but contains no mention of either shoulder.[22]
[22] ARD p. 115.
On 28 November 2019 the applicant consulted Dr Law. The clinical record of the consultation records the reason for the attendance as “workcover”. The clinical record refers to the applicant’s back pain but contains no reference to either shoulder.[23]
[23] ARD p. 116.
On 5 December 2019 the applicant consulted Dr Law. The clinical record of the consultation refers to the applicant’s back condition but contains no mention of either shoulder.[24]
[24] ARD p. 116.
On 19 June 2020 the applicant consulted Dr Law. The clinical record of the consultation records that the applicant’s back was stills sore but contains no mention of either shoulder.[25]
[25] ARD p. 118.
On 9 July 2020 the applicant participated in a case conference with Dr Law and a rehabilitation provider. The clinical record of the attendance contains no reference to either shoulder.[26]
[26] ARD p. 120.
On 29 July 2020 the applicant consulted Dr Law. The clinical record of the consultation refers to the applicant’s back condition but makes no mention of either shoulder.[27]
[27] ARD p. 121.
On 31 July 2020 the applicant consulted Dr Law. The clinical record of the consultation records that the applicant was still in a lot of pain and that Dr Suttor “(not part of WC, pt paid for it herself)” requested a bone scan. The clinical record contains no mention of either shoulder.[28]
[28] ARD p. 121.
On 5 August 2020 a bone scan which included both shoulders was performed for long standing aches.[29]
[29] ARD p. 87.
On 27 August 2020 the applicant consulted Dr Law. The clinical record of the consultation records that a case conference was held with Pinnacle Rehabilitation. There is no reference in the clinical record of the consultation to either shoulder.[30]
[30] ARD p. 123.
On 5 September 2020 the applicant attended on Dr Law in respect to unrelated medical conditions.[31]
[31] ARD p. 123.
On 16 September 2020 the applicant consulted the GP, Dr Payam Bahrampour, complaining of left ankle pain. The clinical record of the consultation contains no reference to either shoulder.[32]
[32] ARD p. 124
On 24 September 2020 the applicant consulted Dr Law wanting analgesia for her back and ankle. The clinical record of the attendance contains no reference to either shoulder.[33]
[33] ARD p. 124.
On 14 October 2020 the applicant consulted Dr Law in respect to an unrelated medical condition. The clinical record of the consultation contains no reference to either shoulder.[34]
[34] ARD p. 125.
On 29 October 2020 the applicant consulted Dr Law. The clinical record of the consultation records that the back pain was still bad and that the workcover certificate was overdue. It contains no mention of either shoulder.[35]
[35] ARD p. 125.
On 29 October 2020 the applicant attended on Dr Derek Lee, occupational physician, who provided to the respondent an injury management consultant report dated 30 October 2020. Dr Derek Lee records a history of the fall at work and the development of low back pain. The doctor did not record any history in respect to the applicant having sustained an injury to either shoulder in the fall. The doctor did however record that the applicant had long standing right shoulder bursitis which commenced in approximately 2014 when she had her first cortisone injection. The doctor records that this would fluctuate intermittently and the applicant was able to manage this with home based exercises and intermittent cortisone injections, the latest of which had been performed six months prior to examination.[36]
[36] Reply pp. 140-144.
On 11 November 2020 the applicant consulted Dr Law. The clinical record of the consultation records the reasons as “workcover”. It contains no reference to either shoulder.[37]
[37] ARD p. 128.
On 2 December 2020 the applicant consulted Dr Law. The clinical record of the consultation records that the applicant complained of low back pain as well as shooting pains down her legs. It contains no mention of either shoulder.[38]
[38] ARD p. 128.
On 3 December 2020 the applicant consulted Dr Law complaining of back, left buttock and leg pain as well as constant tingling in the sole of her left foot. The clinical record of the consultation contains no mention of either shoulder.[39]
[39] ARD p. 129.
On 10 December 2020 the applicant consulted Dr Law in respect to her pain. The clinical record of the consultation makes no reference to either shoulder.[40]
[40] ARD p. 130.
On 14 December 2020 the applicant consulted Dr Law complaining of back pain and left lower limb symptoms. The clinical record of the consultation contains no mention of either shoulder.[41]
[41] ARD p. 131.
On 16 December 2020 the applicant consulted Dr Law and participated in a case conference with the rehabilitation provider. The clinical record of the attendance contains no reference to either shoulder.[42]
[42] ARD p. 132.
On 21 January 2021 the applicant participated in a conference with Dr Law and the rehabilitation provider. The clinical record of the attendance records that the applicant complained of back pain but contains no reference to either shoulder.[43]
[43] ARD p. 133.
On 28 January 2021 the applicant consulted Dr Law. The clinical record of the consultation contains no reference to either shoulder.[44]
[44] ARD p. 133.
On 3 February 2021 the applicant consulted Dr Law complaining of back pain and tingling in both legs. The clinical record of the consultation contains no reference to either shoulder.[45]
[45] ARD p. 134.
On 4 February 2021 the applicant consulted the GP, Dr Khaled Etri, complaining of right neck and shoulder pain which was longstanding but worse for the last few months. The clinical record of the consultation contains no further history in respect to the condition and does not mention it being related to the fall at work.[46]
[46] ARD p. 135.
On 5 February 2021 an X-ray and ultrasound were performed of the right shoulder.[47]
[47] ARD p. 75-76.
On 9 February 2021 an injection was performed to the right subacromial bursa.[48]
[48] ARD p. 77.
On 26 February 2021 an injection was performed to the right shoulder.[49]
[49] ARD p. 78.
On 17 March 2021 an ultrasound was performed of the left shoulder.[50]
[50] ARD p. 79.
On 26 March 2021 Dr Dowla, a consultant in neurology and clinical neurophysiology, reported to Dr Law noting that the applicant’s complaints included sharp pain in her shoulders.[51]
[51] ARD p. 80.
On 29 March 2021 the applicant consulted Dr Law reporting that both shoulders were still sore. The clinical record of the consultation contains no history in respect to the cause of the shoulder complaints and does not refer to the condition as being related to the fall at work.[52]
[52] ARD p. 139.
On 29 March 2021 Dr Law referred the applicant to Jeff Baysic for physiotherapy for bilateral shoulder pain. No history of any relevance is recorded in the referral in respect to the shoulder condition.[53]
[53] ARD p. 91-92.
On 1 April 2021 an injection was performed to the left subacromial bursa.[54]
[54] ARD p. 82.
On 9 April 2021 Dr Law referred the applicant to Dr Kuo in respect to bilateral shoulder pain. The referral does not record any relevant history in respect to the condition.[55]
[55] ARD pp. 93-94.
On 13 April 2021 Jeff Baysic, physiotherapist, reported to Dr Law that the applicant presented with a history of chronic bilateral shoulder pain.[56]
[56] ARD p. 71.
On 17 May 2021 the applicant consulted Dr Law for right shoulder bursitis. The clinical record contains no history in respect to the condition.[57]
[57] ARD p. 142.
On 7 July 2021 Dr Kuo reported to Dr Law that the applicant presented with right greater than left shoulder pain. The doctor records that the applicant reported that she has had symptoms for 8-10 years without any specific history of trauma.[58]
[58] ARD p. 103.
On 26 July 2021 an MRI was performed of the right shoulder.[59]
[59] ARD p. 86.
On 11 August 2021 the applicant consulted Dr Law. The clinical record of the consultation records that the insurance company had been spoken to about the shoulders and that the applicant wanted to claim workers compensation for them as well. The doctor noted that she was “not sure if it will work but added to WC cert.”[60] The clinical note contains no history as to how the shoulders were injured. This is the first reference in the clinical records to the shoulder condition being related to the fall at work on 16 February 2019.
[60] ARD p. 153.
A Certificate of Capacity dated 11 August 2021 records right shoulder pain for the first time as part of the diagnosis for the injury sustained on 16 February 2019. The certificate records that the applicant had been having right shoulder pain since the fall “but did not realise this was due to fall.”[61]
[61] ARD pp. 95-97.
On 24 September 2021 the applicant attended on Associate Professor (A/Prof) Michael Shatwell who provided a forensic report to the respondent dated 27 September 2021.[62] A/Prof Shatwell records a consistent history of the fall at work and also records that the applicant stated that she had right shoulder pain. The doctor noted that the applicant claimed that initially she did not consider that her developing impingement problem in her right shoulder was related to her fall at work.
[62] Reply pp. 165-179.
In A/Prof Shatwell’s opinion it is difficult to link subacromial bursitis to the fall at work which occurred approximately two and half years prior to A/Prof Shatwell’s examination of the applicant. In the doctor’s opinion the shoulder condition is constitutional in nature and unrelated to the fall at work.
On 2 December 2021 Dr Charles New, orthopaedic surgeon, provided two forensic reports to the applicant’s solicitors.[63] The doctor did not record a history of the applicant sustaining injury to her shoulders in the fall at work. Dr New did however note that the applicant continued to have right shoulder pain. The doctor provided no opinion as to any causal connection between the fall at work and the right shoulder condition.
[63] Reply pp. 215-221.

On 11 February 2022[64] Dr Warren Kuo, orthopaedic surgeon, reported to the applicant’s solicitors that he first reviewed the applicant on 7 July 2021 for right greater than left shoulder pain. He subsequently reviewed the applicant on 2 August 2021, 3 February 2021 and
[64] ARD pp. 64-65.
10 February 2022. Dr Kuo records that the applicant reported that it was a short time after the fall at work that she started to notice right greater than left shoulder pain.
Based on the applicant’s history that she was fully functional prior to the work fall and had been debilitated since the accident, Dr Kuo is of the opinion that the applicant’s incapacity is a result of the injuries at work and that her employment is a substantial contributing factor to her injuries.
On 16 August 2022 Dr Kuo reported to Dr Law recording that the applicant reported that in the fall on 16 February 2019 she hit her back and both shoulders.[65]
[65] ARD p. 66.
On 21 October 2022 the applicant was examined by A/Prof Brett Courtenay, orthopaedic surgeon, who provided a forensic report to the respondent dated 25 October 2022.[66] A/Prof Courtenay records that the applicant had problems with her shoulders from the time of the fall at work. The doctor observed that there was some disconnect in the available information as to when the right shoulder symptoms developed. The doctor observed that there was no evidence that the right shoulder was investigated from the time of the fall at work. A/Prof Courtenay was unable to confirm a causal relationship between the right shoulder condition and the fall at work.
[66] Reply pp. 184-190.
On 1 December 2022 Dr Kuo reported that the applicant had shoulder symptoms for 8-10 years without any specific history of trauma. The doctor was of the opinion given the applicant’s history that she slipped and fell backwards, that it is extremely reasonable to consider that injuries to the spine and shoulders/upper limbs could have occurred. The applicant mentioned to the doctor that her shoulder had become painful as a result of the incident on 16 February 2019. The doctor observed that he had no reason to not believe the applicant and her symptoms are consistent with her mechanism of injury.[67]
[67] ARD p. 68.
On 20 December 2022 Dr New provided a further forensic report to the applicant.[68] In the opinion of Dr New, on the balance of probabilities, given that the applicant fell off a chair at work and injured her shoulder, there is a causal connection between employment and the injury.
[68] Reply pp. 222-224.
On 6 January 2023 A/Prof Courtenay provided a further report to the respondent following a review of further documents. The doctor had previously assumed that the applicant had fallen forward. Having been provided with a history that the applicant had fallen backwards the doctor concluded that it was even less likely that the applicant had sustained a shoulder injury in the fall as she would not have put her arms behind her when falling to protect herself.[69]
[69] Reply pp. 192-193.
On 28 May 2023 Dr Law reported on the applicant noting that the doctor did not have available for review the clinical records prior to November 2021. It was Dr Law’s memory that the applicant reported sometime perhaps between June and November 2021 that her right shoulder was still sore from the work fall. Dr Law recalled being surprised by this as the doctor had not realised that the applicant had injured her shoulder during the fall.
Dr Law records that the applicant insisted that she had told the doctor, but the doctor had not documented it. However, Dr Law observed that she has always been very thorough at documenting notes especially for worker's compensation cases and she did not recall the applicant reporting right shoulder issues shortly after the fall at work. The doctor recalls that after she told the applicant that, the applicant said she might have gone to another doctor in Plumpton Medical Centre for her shoulder.[70]
[70] ARD p. 320.
On 22 August 2023 Dr New provided a further forensic report to the applicant’s solicitors.[71] Dr New records that the applicant reported that she did not have any right shoulder symptoms prior to the fall at work. She did however confirm that she had a past history of intermittent bursitis but at the time of the fall she was asymptomatic.
[71] Reply pp. 225-226.
In the opinion of Dr New the applicant likely sustained an injury to her right shoulder as a result of the fall at work. In the opinion of Dr New the description of the fall and the subsequent presentation is consistent.
On 14 September 2023 Dr Kuo reported to the applicant’s solicitors that he felt that it was likely that the right shoulder had become injured as a result of the fall at work observing that the applicant reported that she hit her back and both shoulders in the fall. In the doctor’s opinion the fall would explain the injury to the soft tissues, ligament and tendons of the shoulder.[72]
[72] ARD p. 69.
On 27 October 2023 Dr Kuo reported that the history which he obtained at his first consultation with the applicant on 7 July 2021 was that she had hit her buttocks, head and shoulders in the fall. Despite the prior history of rotator cuff disease Dr Kuo was of the opinion that the fall had resulted in her current symptoms of rotator cuff impingement. The applicant reported that she was functioning normally prior to the fall and since the fall she had been plagued by ongoing pain and limitations.[73]
[73] ARD p. 70.
On 22 November 2023 A/Prof Courtenay re-examined the applicant providing a forensic report to the respondent dated 24 November 2023.[74] The doctor confirmed his previous opinion that falling backwards was less likely to have caused a shoulder injury as it was less likely to lead to loading of the shoulder. In the doctor’s opinion the shoulder condition is not connected to the fall at work noting that there was a significant gap in the evidence before the shoulder was regarded as a significant issue.
[74] Reply pp. 194-201.
The applicant relies on two forensic reports of Dr Gavin Soo, shoulder and knee surgeon, dated 19 June 2024.[75] Dr Soo records a history that the applicant presented to her GP three days after the fall at work due to ongoing pain to her whole body but mainly to her lower back. Dr Soo records that the applicant noticed worsening pain to her neck and both shoulders, although the right shoulder was the worst.
[75] ARD pp. 26-35.
Dr Soo noted that prior to the accident at work the applicant had been diagnosed with bursitis to both shoulders and had previous injections in 2014 and 2017 which helped her symptoms.
Dr Soo diagnosed right shoulder recurrent bursitis and adhesive capsulitis secondary to the fall at work. Dr Soo believes that the fall at work on 16 February 2019 likely aggravated the recurrent bursitis and resulted in the development of adhesive capsulitis in the right shoulder. In the opinion of Dr Soo, the history the applicant provided and the mechanism of injury of falling off a stool is consistent with the injury.
A/Prof Courtenay conducted a further examination of the applicant on 11 September 2024 providing a further forensic report to the respondent dated 18 September 2024.[76] The doctor reports that he enquired of the applicant as to why the shoulders were not included with the back when the workers compensation claim was made to which she responded that there had been a past history of shoulder bursitis and she had on a couple of occasions received cortisone injections and it had settled. The applicant suspected it was the same, although she did say that it started to feel different.
[76] Reply pp. 208-214.
A/Prof Courtenay again observed that there was a disconnect between the past history of the applicant’s shoulder and the fact that it was almost 18 months to two years after the fall at work where the shoulder was thought to be different from what it had been in the past.
A/Prof Courtenay also observed that the natural progression of subacromial bursitis is that it will continue and it will lead to some degree of, with age, degeneration of the tendons. A small split in the supraspinatus is not indicative, in the doctor’s opinion, of acute trauma in the fall that occurred at work. In the opinion of A/Prof Courtenay the pathology is nothing more than an extension of what she had previously in 2014 and 2017.
The doctor maintained his opinion that the applicant did not sustain a shoulder injury in the fall at work. The doctor felt that there had just been a natural progression in the applicant’s pre-existing shoulder condition.

Consequential sleep condition

It is the applicant’s evidence that she had not previously experienced any issues with her sleep.[77]
[77] ARD p. 1.
It is the applicant’s evidence that since the fall at work she has experienced significant difficulty sleeping and that she was referred to the respiratory and sleep physician, Dr David Freiberg, on whom she initially attended in February 2022.[78] It is the applicant’s evidence that she doesn’t sleep due to severe burning in her buttocks and down her leg.[79]
[78] ARD p. 13.
[79] ARD p. 23.
It is the applicant’s evidence that prior to suffering the subject injury she would have around seven hours of unbroken sleep each night and that since the injury she is unable to sleep more than a couple of hours before she is woken by pain. She then struggles to fall back to sleep and that her husband says that she has jerking limb movements when asleep.[80]
[80] ARD p. 24.
On 1 March 2022 Dr Freiberg reported to Dr Law on the findings of a diagnostic polysomnogram which in the opinion of Dr Freiberg indicated poor sleep quality due to chronic pain and anxiety. No sleep apnoea was observed. In the opinion of Dr Freiberg there was however borderline mild periodic limb movement disorder which the doctor observed can be associated with back injuries and the associated medication.
In the opinion of Dr Freiberg, the sleep study confirmed the clinical impression that the applicant is awake for long periods of the night because of pain and when she is asleep there are constant disruptions and awakenings due to pain, emotion and anxiety. The doctor concluded that the study indicated that the applicant has a permanent impairment of her sleep as a result of her work injury.[81]
[81] ARD p. 73.
Dr Freiberg provided a report to the applicant dated 13 March 2024.[82] Dr Freiberg recorded that prior to her workplace injury the applicant had an uninterrupted seven hours of sleep, she was not known to snore, and she would wake refreshed. There was no history of periodic limb movement disorder.
[82] ARD pp. 36-40.
Dr Freiberg observed that a typical night’s sleep now is disturbed and disrupted constantly due to pain. She sleeps predominantly on her side. Her husband reports snoring. She is unrefreshed by her constant disturbed and restless sleep and her husband has noted jerking limb movements throughout the night. The doctor scored the applicant 15/24 on an Epworth Sleepiness Score.
Dr Freiberg noted that on 21 February 2022 the applicant had a supervised diagnostic polysomnogram. She had a sleep efficiency of 56% or a total sleep time of 273 minutes which equated to a 35% reduction in her reported pre-injury sleep duration. The doctor observed that as a proportion of her overall sleep time the deeper stage of REM sleep was reduced at 14% with the normal range being 20% to 25% of total sleep time. The doctor observed that the applicant had 29 spontaneous awakenings with a spontaneous arousal index of 10/hour.
In the opinion of Dr Freiberg, the likely aetiology of the spontaneous arousals and awakenings is due to her pain. The doctor observed that the applicant had seven arousals/hour due to periodic limb movement disorder.
In the opinion of Dr Freiberg, the applicant reported symptoms consistent with this only since her workplace injury. The doctor observed that there was no snoring or significant sleep disordered breathing.
In the opinion of Dr Freiberg, the sleep study shows severe insomnia due to pain and mild periodic limb movement disorder. In the opinion of Dr Freiberg the likely aetiology of her periodic limb movement disorder is the nerve damage to her lumbar spine and the anti-depressant Endep medication. Her pre-existing diabetes could also contribute although there was no history to suggest this disorder prior to her workplace injury.

FINDINGS AND REASONS

Injury to right shoulder

The applicant bears the onus of proving on the balance of probabilities that she sustained the alleged injury to her right shoulder. Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain.[83]
[83] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
The applicant has not discharged her onus of proof. I am of the view that the weight of the evidence does not support, on the balance of probabilities, that the applicant sustained an injury to her right shoulder in the fall on 16 February 2019.
I do not accept the applicant’s evidence that a few days after the fall she began to notice pain in both her shoulders, right shoulder worse than left. If the applicant’s evidence were accepted her right shoulder would presumably have been symptomatic when she attended on her GP’s on 19 February 2019 and 20 February 2019 and would certainly have been symptomatic by the time of her consultation with Dr Law on 7 March 2019 yet there is no mention of either shoulder in the clinical records for those consultations. The consultation of 7 March 2019 is of particular significance as at that time, according to the clinical record of the consultation, the applicant was thinking about making a workers compensation claim.
These consultations occur prior to the applicant’s mother being diagnosed with a terminal illness and therefore the lack of the recording of any shoulder injury or complaints is not explained by the applicant becoming focused on caring for her mother and spending time with her mother.
Whilst the applicant continued to attend on her GPs it is not until 19 September 2019 when the applicant consults Dr Deada, some seven months after the fall at work, that the clinical records record any complaints in respect to the applicant’s shoulders.
On 19 September 2019 the applicant complained to Dr Deada of bilateral shoulder pain however the clinical record of the attendance records no history in respect to the development of the shoulder conditions and in particular no history in respect to the applicant having sustained any injury to her shoulders in the fall at work.
It is not until 11 August 2021, approximately two and a half years after the fall at work, that the clinical records contain any reference to the applicant having sustained injury to her shoulders in the fall at work. It is possible that the alleged injury was reported approximately one month earlier on 7 July 2021 to Dr Kuo which I will discuss further below. However in my view, given the circumstances, it is of no significance whether the subject history is first reported and recorded on 11 August 2021 or 7 July 2021.
Following the initial complaint of bilateral shoulder pain on 19 September 2019 following the fall at work on 16 February 2019 the applicant continued to attend on her GP’s whose clinical records record no history of the applicant sustaining a shoulder injury in the fall at work until as previously mentioned, 11 August 2021.
On 4 October 2019 the applicant consulted the GP, Dr Lee, in respect to bursitis of both shoulders. The doctor explained the possible causes and the management. The clinical record of the consultation does not record what those possible causes were. However, it does not appear that the fall at work was considered a possible cause as no notice of the injury was provided to the workers compensation insurer and no claim was made even though the applicant would subsequently commence to receive treatment for her shoulders.
The applicant’s treatment in respect to her shoulders between 4 October 2019 and
11 August 2021 includes on 4 October 2019 an ultrasound of both shoulders, on
5 October 2019 bilateral shoulder injections, on 9 November 2019 an injection to the right shoulder, on 12 November 2019 an injection to the left shoulder, on 5 February 2021 an X-ray and ultrasound of the right shoulder, on 9 February 2021 an injection to the right subacromial bursa, on 26 February 2021 an injection to the right shoulder, on 17 March 2021 an ultrasound of the left shoulder, on 1 April 2021 an injection to the left subacromial bursa, on 26 July 2021 an MRI of the right shoulder, referral to a physiotherapist and on
9 April 2021 referral to the orthopaedic surgeon, Dr Kuo.
On 16 October 2019 the applicant consulted Dr Law at which time, according to the clinical record of the consultation, the applicant indicated that she wished to claim workers compensation. Significantly even though the applicant wished to make a workers compensation claim the clinical record contains no mention of either shoulder even though Dr Lee had discussed possible causes of the shoulder condition with the applicant on
4 October 2019.
On 31 October 2019 the applicant consulted Dr Law with the reason for the attendance recorded as “workcover”. The clinical record of the attendance once again records no mention of either shoulder.
On 7 November 2019 the applicant consulted Dr Lee for right shoulder bursitis and tendonitis. The clinical record of the consultation again records that the doctor explained possible causes but again does not record what those possible causes were. On
14 November 2019 and 28 November 2019, the applicant again consults Dr Law in relation to “workcover” and again the clinical records for the consultations contain no mention of either shoulder.
On 9 July 2020 the applicant participated in a case conference with Dr Law and a rehabilitation provider which seems to have been in respect to the applicant’s workers compensation claim. The clinical record of the attendance again contains no reference to either shoulder.
On 31 July 2020 the applicant consulted Dr Law. The clinical record of the consultation records that the applicant was still in a lot of pain. The clinical record relevantly records that Dr Suttor had requested a bone scan which was “not part of WC, pt paid for it herself”. The bone scan which was for longstanding aches, including both shoulders, was performed on
5 August 2020.
On 27 August 2020 a further case conference was held with the applicant, Dr Law and Pinnacle Rehabilitation. Once again even though the case conference presumably related to the workers compensation claim in respect to the fall at work, the clinical record of the consultation records no reference to either shoulder.
On 29 October 2020 the applicant attended on Dr Derek Lee, occupational physician, who provided to the respondent an injury management consultant report dated 30 October 2020. The doctor takes a history of the fall at work and the development of low back pain.
The doctor did not record any history in respect to the applicant having sustained an injury to either shoulder in the fall even though the doctor did record that the applicant had long standing right shoulder bursitis which commenced in approximately 2014 when she had her first cortisone injection and that this would fluctuate intermittently and that the applicant was able to manage this with home based exercises and intermittent cortisone injections, the latest of which had been performed six months prior to examination.
As the applicant was being examined by Dr Derek Lee at the request of the respondent and took both a history of the fall at work and the applicant’s complaints, it is difficult to understand why the applicant would not have mentioned to the doctor that she had sustained injury to her shoulders in the fall at work. It is in my view unlikely that the doctor would not have recorded any such history if it were given, the doctor having gone to the effort of recording the history of the shoulder condition.

The applicant again attended on Dr Law in respect to “workcover” on 11 November 2020 and again the clinical record of the consultation contains no reference to either shoulder.
Further case conferences in respect to the workers compensation claim were held on
16 December 2020 and 21 January 2021 which were attended by the applicant, Dr Law and the rehabilitation provider. Once again, the clinical records of the attendances contain no reference to either shoulder.
On 7 July 2021 Dr Kuo reported to Dr Law that the applicant presented with right greater than left shoulder pain. The doctor records that the applicant reported that she has had symptoms for 8-10 years without any specific history of trauma.
It is possible that the applicant did report to Dr Kuo on 7 July 2021 that she injured her shoulders in the fall at work. Whilst the report to Dr Law of 7 July 2021 does not refer to the shoulders being injured, Dr Kuo in his report of 27 October 2023 records that the history which he obtained at his first consultation with the applicant on 7 July 2021 was that she had hit her buttocks, head and shoulders in the fall. Unfortunately, the clinical notes of Dr Kuo are not in evidence. In any event Dr Kuo’s consultation is only approximately one month prior to the applicant’s attendance on Dr Law on 11 August 2021 and in the circumstances, nothing in my view turns on the one-month difference in the taking and recording of the history given the amount of time that had elapsed since the fall at work.
On 11 August 2021 a Certificate of Capacity recording right shoulder pain for the first time as part of the diagnosis for the injury sustained on 16 February 2019 was issued. The certificate records that the applicant had been having right shoulder pain since the fall “but did not realise this was due to fall.”
The clinical record of the applicant’s consultation with Dr Law on 11 August 2021 records that the insurance company had been spoken to about the shoulders and that the applicant wanted to claim workers compensation for them as well. The doctor noted that she was “not sure if it will work but added to WC cert.”
The clinical record of Dr Law in my view appears to indicate that the doctor had some doubt as to the causal relationship between the fall at work and the shoulder condition. In my view the weight of the evidence supports that this was the first time that the applicant had reported to Dr Law that she had injured her shoulders in the fall at work. The clinical note and the Certificate of Capacity of 11 August 2021 are the first clinical records to refer to the shoulders being injured in the fall at work.
Furthermore, Dr Law in her report dated 28 May 2023 noted, not having access to the relevant clinical records, that it was her memory that it was not until sometime perhaps between June and November 2021 that the applicant reported that her right shoulder was still sore from the work fall. Dr Law recalled being surprised by this as the doctor had not realised that the applicant had injured her shoulder during the fall. Dr Law records that the applicant insisted that she had told the doctor, but the doctor had not document it. However, Dr Law observed that she has always been very thorough at documenting notes especially for workers compensation cases and she did not recall the applicant reporting right shoulder issues shortly after the fall at work. The doctor recalls that after she told the applicant that, the applicant said she might have gone to another doctor in Plumpton Medical Centre for her shoulder.
There is no mention in the clinical records of the Plumpton Medical Centre prior to
11 August 2021 of the applicant sustaining a shoulder injury in the fall at work. It is also in my view inconsistent that the applicant would have attended multiple attendances with Dr Law in respect to her workers compensation claim including case conferences with the rehabilitation provider without mentioning that she had sustained a shoulder injury especially in the context of the significant and often invasive treatment which she was receiving.
Given the delay in the recording of any shoulder complaints following the fall at work. The further delay in respect to any history being recorded in the clinical records of injury having been sustained to the right shoulder in the fall at work. As well as the delay in giving notice of the alleged shoulder injury to the respondent and the making of a workers compensation claim. All in the context of repeated attendance on her GPs in respect to her workers compensation claim including case conference and the provision of certificates of capacity and undergoing extensive treatment for her shoulder conditions. I do not accept the applicant’s evidence that she had an onset of shoulder symptoms within a few days of the fall at work.
I do not accept the explanation given by the applicant to A/Prof Michael Shatwell that initially she did not consider that her developing impingement problems in her right shoulder was related to her fall at work. Even if the applicant had initially not considered the condition to be related to work the first mention of the condition being related to work is not until
11 August 2021 approximately two and a half years after the injury was allegedly sustained and this is despite the GP, Dr Lee, discussing possible causes for the condition with the applicant. The applicant holding such a belief would also in my opinion be inconsistent with the history recorded by Dr New that the applicant reported that she did not have any right shoulder symptoms prior to the fall at work.
It was submitted on behalf of the applicant that I should accept the opinion of Dr Soo as to causation. In the opinion of Dr Soo, the fall at work on 16 February 2019 likely aggravated the recurrent bursitis and resulted in the development of adhesive capsulitis in the right shoulder. In the opinion of Dr Soo, the history the applicant provided and the mechanism of injury of falling off a stool is consistent with the injury.
I do not accept the opinion of Dr Soo. Dr Soo relies on the applicant’s history that she had an onset of shoulder symptoms within a few days of the fall at work. I do not accept the applicant’s history as to the onset of the shoulder symptoms for the reasons previously given. For the same reasons I do not accept the opinions as to causation of Dr Kuo and Dr New.
Given the pre-existing shoulder condition, and having rejected the evidence of the applicant that there was an onset of shoulder symptoms within a few days of the fall at work, I prefer and accept the opinion A/Prof Courtenay that the right shoulder condition is not connected to the fall at work but rather that it is the natural progression of the applicant’s pre-existing shoulder condition.
A/Prof Courtenay came to this opinion after noting the disconnect between the past history of the applicant’s shoulder and the fact that it was almost 18 months to two years after the fall at work before the shoulder was thought to be different from what it had been in the past. I agree with A/Prof Courtney’s opinion that there is a disconnect in the evidence which I have previously discussed. A/Prof Shatwell has reached a similar opinion to A/Prof Courtenay.
For the above reasons I find that the applicant did not sustain injury to her right shoulder as alleged.

Consequential sleep condition

The question whether a consequential condition has been sustained is a question of fact.[84] Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain.[85]
[84] State of New South Wales v Bishop [2014] NSWCA 354.
[85] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [100] (Brennan) Deputy President Snell observed that it is not necessary for a worker alleging a consequential condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act.
Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) involved a compensable injury to the right shoulder which allegedly resulted in a consequential condition of the left shoulder. In Moon Deputy President Roche at [45] stated:
“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…”
In the applicant’s submission I should accept the opinion of Dr Freiberg. The respondent submits that if it is found, as I have, that the applicant did not sustain injury as alleged to the right shoulder, then it should also be found that the applicant has not suffered a consequential sleep condition. In summary it is the respondent’s submission that the evidence of Dr Freiberg is deficient in that it fails to identify the injury that is the cause of the applicant’s disturbed sleep and that the doctor does not identify which limbs he is referring to in regard to limb movement.
I accept the applicant’s submission and reject the respondent’s submission.
Dr Freiberg in reaching his opinion relevantly recorded that prior to her workplace injury the applicant had an uninterrupted seven hours of sleep; she would wake refreshed and there was no history of periodic limb movement disorder.
Dr Freiberg noted that on 21 February 2022 the applicant had a supervised diagnostic polysomnogram. She had a sleep efficiency of 56% or a total sleep time of 273 minutes which equated to a 35% reduction in her reported pre-injury sleep duration. The doctor observed that as a proportion of her overall sleep time the deeper stage of REM sleep was reduced at 14% with the normal range being 20% to 25% of total sleep time. The doctor observed that the applicant had 29 spontaneous awakenings with a spontaneous arousal index of 10/hour.
In the opinion of Freiberg, the likely aetiology of the spontaneous arousals and awakenings is due to her pain. The doctor observed that the applicant had seven arousals/hour due to periodic limb movement disorder.
In the opinion of Dr Freiberg, the applicant reported symptoms consistent with this only since her workplace injury. In the opinion of Dr Freiberg, the sleep study shows severe insomnia due to pain and mild periodic limb movement disorder. In the opinion of Dr Freiberg, the likely aetiology of her periodic limb movement disorder is the nerve damage to her lumbar spine and the anti-depressant Endep medication. Her pre-existing diabetes could also contribute although there was no history to suggest this disorder prior to her workplace injury.
The opinion of Dr Freiberg is unchallenged. Dr Freiberg’s opinion is logical and well reasoned. I therefore accept his opinion.
Dr Freiberg clearly identifies in his report as the cause for the applicant’s periodic limb movement disorder the injury to the lumbar spine. The doctor also refers to pain as being a cause of the applicant’s insomnia. Whilst it is true that the applicant suffers from shoulder pain the applicant also suffers from pain as a result of the back injury and I refer to the numerous references to back pain in the clinical records referred to in respect to the shoulder injury. There are further references to the applicant complaining of pain littered throughout the clinical records generally some of which I was taken to by Mr Tanner during his submissions. I accept the applicant’s submissions in respect to the applicant suffering from pain as a result of the back injury.
I am therefore of the view that the sleep disorder results from the accepted work injury and therefore find that the applicant has suffered the alleged consequential condition in the form of a sleep disorder.

SUMMARY

As I have found that the applicant did not sustain injury to her right shoulder as alleged there will be an award for the respondent in respect to injury to the right shoulder.
As I have found that the applicant has suffered the alleged consequential condition in the form of a sleep disorder and as there is no dispute in respect to injury to the lumbar spine, I will remit the matter to the President for referral to a Medical Assessor for assessment of impairment of the lumbar spine and nervous system.

[2025] NSWPIC 221

21 May 2025