Sadhrao v Bayfield Hotels (Woollahra) Pty Ltd ATF Light Brigade Hotel

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sadhrao v Bayfield Hotels (Woollahra) Pty Ltd ATF Light Brigade Hotel [2024] NSWPIC 215
APPLICANT:	Simranjit Sadhrao
RESPONDENT:	Bayfield Hotels (Woolahra) Pty Ltd trading as Light Brigade Hotel
MEMBER:	Michael Moore
DATE OF DECISION:	29 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for payment of section 60 expenses in relation to proposed treatment of right shoulder problems; only issue was whether the applicant sustained an injury to the right shoulder in the admitted work injury; no dispute that the proposed treatment was reasonably necessary medical treatment; found on the evidence that the applicant did sustain an injury to the right shoulder as alleged; Held – award for the applicant for payment of the claimed section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant suffered an injury to his right shoulder in the course of his employment on 24 May 2022. 2. The proposed treatment of the right shoulder injury is reasonably necessary within the meaning of s 60 of the Workers Compensation Act 1987. The Commission orders: 3. There will be an award pursuant to s 60 of the Workers Compensation Act 1987 that the respondent pay the applicant’s future medical hospital and related treatment expenses in the sum of $11,045 subject to any such payment not exceeding the SIRA gazetted rates.

STATEMENT OF REASONS

BACKGROUND

The applicant Samranjit Sadhrao was employed by the respondent as a chef.
The applicant states that he commenced work with the respondent in 2022 working full time and working 38 hours per week.
The applicant describes his duties as including frequent bending and lifting activities.
On 24 May 2022 the applicant, in the course of his duties for the respondent, was driving between two premises operated by the respondent at Dee Why and Belrose when he was involved in a motor vehicle accident.
At the time of the accident the applicant was driving his motor vehicle wearing a seatbelt that extended from his right shoulder across his chest.
The applicant states that at the intersection of Warringah Road and the Wakehurst Parkway his motor vehicle was struck by a vehicle that had driven through a red light.
As a result of the collision described above the applicant claims to have suffered injuries affecting his low back, left leg and right shoulder. The applicant also states that he subsequently developed a psychological condition as a consequence of the accident and the injuries sustained.
The applicant was initially treated at Mount Druitt Hospital on the day of the accident and subsequently came under the care of his then general practitioner Dr Bo Li Zhu.
In June 2022 the applicant commenced receiving physiotherapy treatment from a Mr Jiho Joshua Han and on 20 June 2022 examination of the shoulders by the physiotherapist was recorded as revealing bilateral painful arcs of movement.
The applicant also started to develop symptoms of anxiety including feelings of panic, nightmares and a fear of driving.
On 7 July 2022 there was a meeting of the applicant, the applicant’s health provider and the applicant’s case manager at the insurer at which meeting the applicant reported that he was experiencing pain in the right shoulder.
The applicant commenced treatment with Ms Rose Kwon psychologist on or around
13 July 2022.
On 22 August 2022 the applicant was seen by Dr Thomas Rosenthal, occupational physician at the request of the Workers Compensation Insurer EML.
In his report dated 29 August 2022 Dr Rosenthal recorded the applicant’s then current symptoms in the following terms:
“He has constant back pain. He rates it as 7 on a scale of 0-10, with 10 being maximal pain. He gets left leg pain describing sciatica-type pain going down to his calf. He states his left foot goes numb intermittently.
He also reported a right shoulder condition which began a few weeks after the accident. He was unclear whether the shoulder condition was related to the accident or not, but his physiotherapist wants to treat his shoulder and recommended investigations. He has pain in the right shoulder and restriction of right shoulder movements.”
The applicant’s shoulder condition did not improve and indeed appears to have deteriorated between the date of the appointment with Dr Rosenthal and September 2022.
As a result of a dispute between the applicant and his then general practitioner Dr Bo Li Zhu as to the relationship between the applicant’s right shoulder condition and the motor vehicle accident on 24 May 2022 the applicant sought a transfer of his case to a new general practitioner on 22 September 2022.
The applicant then came under the care of Dr Hajeong Lee and on or about 1 October 2022 the applicant underwent an MRI examination at the request of Dr Lee which was reported as showing;
“Tendinopathy of the supraspinatus with partial-thickness articular-sided tear of the anterior insertion measuring 4.5 x 3mm. Subacromial/subdeltoid bursitis.”[1]
[1] Application p 39.
On the same day the applicant was referred to Dr Calvin Chien, orthopaedic surgeon specialising in shoulder injuries.[2]
[2] Application p 40.
Dr Chien saw the applicant on 8 February 2023 and diagnosed the applicant as suffering from a partial right rotator cuff tear as a consequence of the motor vehicle accident on
24 May 2022 and recommended that a surgical repair of the shoulder occur.
The respondent has disputed liability for payment of the cost of the recommended surgery and issued two s 78 notices in the matter.

ISSUES FOR DETERMINATION

As two s 78 notices were issued by the respondent raising a number of separate issues in relation to different aspects of the claim at the preliminary conference the question of what issues were actually in dispute was clarified and a direction was issued after the preliminary conference confirming that clarification.
The parties agree that the issue remaining in dispute was whether the applicant suffered any injury to his right shoulder in the motor vehicle accident on 24 May 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (Application);
(b)    Respondent’s Reply and attached documents (Reply);
(c)    Respondent’s Application to Admit Late Documents dated 11 March 2024 (AALD1), and
(d)    Applicant’s Application to Admit Late Documents dated 20 March 2024 (AALD2).

Oral evidence

There was no oral evidence given at the Conciliation/Arbitration hearing.

FINDINGS AND REASONS

At the hearing the applicant was represented by Ms Eraine Grotte of counsel instructed by Ms Alawie from Law Partners.
The respondent was represented by Mr Paul Rickard of counsel instructed by Mr Fazzolare from Hicksons Lawyers.
I have paid careful attention to the submissions of both counsel and without wanting to oversimplify those submissions I think a fair summary of the thrust of the submissions of each counsel are set out below.
Ms Grotte submitted that the starting point was the applicant’s statement that set out a history of right shoulder pain developing over a week after the accident, that it was understandable that at the time the shoulder pain first developed the applicant was more concerned with his other injuries in particular his back pain, that there is material confirming the complaints of shoulder problems fairly proximate in time to the date of the accident, that the weight of the expert medical evidence supported the nexus between the motor vehicle accident, the shoulder problems and the need for surgery. Ms Grotte also submitted that there was no other apparent explanation for the development of the right shoulder problems other than the motor vehicle accident on 24 May 2022.
Mr Rickard’s admirably focused submissions were to the effect that the applicant failed to establish his case because the medical evidence upon which the applicant relied was based on an incorrect history in relation to the date of onset of symptoms in the right shoulder. Essentially Mr Rickard was relying on the ratio of the court in Paric v John HollandConstructions Pty Ltd[3] to assert that an opinion based on an incorrect history was of little weight and accordingly should not persuade me that the applicant had made out his case on the balance of probabilities.
[3] [1984] 2 NSWLR 505.
In terms of the evidence I agree with the applicant’s counsel that the starting point is the applicant’s statement which at point 10 sets out the injuries he states he sustained in the motor vehicle accident as being,
“…my lower back, left leg, foot and right shoulder. As a result of my physical injuries, I have developed psychological symptoms.”[4]
[4] Application p 2.
The applicant further states at point 12 of that statement,
“Following this accident, I started to experience immediate back pain and over a week developed right shoulder pain.”[5]
[5] Application p 2.
The applicant was initially treated at Mt Druitt Hospital where the following history was recorded,
“Clinical history: MVA at 2.30pm. no obvious injuries, developed lower back 1 hr later”[6]
[6] AALD1 p 228.
The applicant subsequently saw his general practitioner Dr Bo Li Zhu on 25 May 2022 after being initially treated at Mount Druitt Hospital.
The applicant continued to see Dr Zhu for treatment up until late September 2022 when he changed general practitioners as noted earlier.
Dr Zhu’s notes of the attendance on 25 May 2022 record a complaint of lower back pain but no other symptoms.[7]
[7] AALD1 pp 82-83.
Dr Zhu’s notes make no reference to right shoulder or foot pain until 22 July 2022 when he notes a telephone conversation with “Emma from EML” and records the following;
“explained the email should be directed to the physiotherapist who believe [sic] th[sic] shoulder and foot pain is also related to MVA
Explained pt hasn’t reported or mentioned about problem to me after the MVA”[8]
[8] AALD1 p 81.
I note that the above entry on 22 July 2022 should not be regarded as being the first time
Dr Zhu was made aware of the applicant’s complaints of shoulder problems as a summary of a meeting attended by the doctor on 7 July 2022 with the applicant and the case manager at EML notes that the applicant advised that,
“he is experiencing pain in his right shoulder and noticed limited range of motion and pain, as well as in the bottom of his left foot and ankle.”[9]
[9] AALD1 p 123.
The relationship between Dr Zhu and the applicant came to an end in September 2022 when the applicant was dissatisfied with Dr Zhu’s refusal to give him an MRI referral for examination of the right shoulder as an injury received in the motor vehicle accident on
[10] AALD1 p 129.
24 May 2022.[10]
Dr Zhu’s notes in relation to that request were as follows,
“pt requested case transfer to a different GP via email to take over his WC case
agreed
as per discussion last case conference
I never said I refuse to order investigation of shoulder
I said very clearly I am happy to lodge shoulder problem as a separate WC if pt want(sic) me to be involved in shoulder problem he never mentioned to me before, on the 25/05, pt clearly told me there is no other injury from the MVA apart from his lower back.”[11]
[11] AALD1 p 92.
The applicant’s medical case on causation essentially relies upon the opinions of Drs Calvin Chien, Andrew Porteous, Hajeong Lee and Thomas Rosenthal.
Dr Chien is the applicant’s treating orthopaedic surgeon dealing with his right shoulder problem and saw the applicant (as previously noted) on the referral of Dr Lee.
In his report to Dr Lee dated 8 February 2023 Dr Chien noted the applicant has having provided the following history,
“On 24/5/22, he was involved in a motor vehicle accident where he was the driver of a car and another T-Boned him from the right. He had immediate back pain and over a week developed right shoulder pain.”[12]
[12] Application p 28.
The report to the applicant’s solicitors prepared by Dr Chien and dated 10 August 2023 repeats the same history of the development of right shoulder pain over a week post-accident.
It should be noted that Dr Chien also recorded in each report that prior to the motor vehicle accident on 24 May 2022 the applicant had not had any prior right shoulder problems despite being required to lift heavy pots for over nine years as a chef.
When reporting to Dr Lee Dr Chien noted the MRI had demonstrated a partial thickness tear of the supraspinatus predominantly on the articular side but some on the bursal side and stated as follows,
“Based on the above findings, the sudden contraction of the right shoulder muscles to brace himself would have caused the tears. It is highly unusual for a 35 year old to have pre-existing tears. His work as a chef may have contributed to a pre-existing condition but without prior imaging it is difficult to confirm.”[13]
[13] Application p 29.
In his report to the applicant’s solicitors dated 10 August 2023 Dr Chien provided a more detailed commentary in the following terms,
“Simranjit was involved in a car accident during the course of his employment. The car accident was the main contributing factor to his symptoms and injuries where he had none prior.
In regards to the rotator cuff tear, they are common in car accidents because the shoulders tighten at the moment of impact and the muscles and tendons in the shoulder absorb the strain of impact on your body. This happens more often when the crash is anticipated as with Simranjit’s case. When this happens, you brace yourself for the impact of the collision by tightening your shoulders. In this intensified state, your shoulder muscles and tendons sustain much of the impact on your body, often resulting in a tear. In an older patient with pre-existing cuff weakness, a full tear would have resulted.”[14]
[14] Application p 32.
I find the opinions of Dr Chien to be well reasoned and I accept same.
I also note that the opinion of Dr Chien supported the nexus between the event of the motor vehicle accident and the rotator cuff injury despite having a history of a delay in the onset of symptoms albeit for one week post injury.
Dr Rosenthal was qualified by the worker’s compensation insurer to provide an independent medical opinion and saw the applicant on 22 August 2022.
Dr Rosenthal is a specialist occupational physician.
Dr Rosenthal’s report contained the following history of right shoulder problems,
“He also reported a right shoulder condition which began a few weeks after the accident. He was unclear whether the shoulder condition was related to the accident or not, but his physiotherapist wants to treat his shoulder and recommended investigations.”[15]
[15] AALD1 p 249.
In relation to the issue of causation of the shoulder problems and a diagnosis Dr Rosenthal stated as follows,
“Mr Sadhrao may have aggravated some AC joint arthritis in his right shoulder. I do not have any investigations to confirm the diagnosis. This could have occurred due to the seatbelt traumatising the right shoulder in the accident.”[16]
[16] AALD1 p 251.
Dr Rosenthal further commented,
“It is reasonable to suspect that the right shoulder was bruised in the accident as he had a seatbelt over his right shoulder at the time of the collision and there would have been a traumatic impact then occurring to the right shoulder. The slight delay in presentation of right shoulder symptoms however is not easily explained.”[17]
[17] AALD1 p2 52.
I note that Dr Rosenthal’s opinion was provided before the results of the MRI of the shoulder were known and he was unaware that the applicant had a rotator cuff tear present. Accordingly it is difficult to know what his view would be in relation to any significance to be attached to the slight delay in the presentation of right shoulder symptoms where a different diagnosis may have been made by the doctor.
Nonetheless a doctor qualified by the respondent accepts that the collision could have caused injury to the right shoulder.
The applicant’s solicitors qualified Dr Porteous, specialist occupational physician to provide an independent medical examination and opinion.
Dr Porteous’s report is dated 24 August 2023 and in relation to the onset of right shoulder pain he recorded a history in the following terms,
“… some right shoulder pain a few weeks after the subject accident.”[18]
[18] Application p 21.
In terms of diagnosis Dr Porteous recorded his opinion as being,
“It is more likely than not that he had the rotator cuff tear already in his right shoulder and it is possible with being thrown around that was aggravated or exacerbated by the subject accident and once he starts to use it, it becomes symptomatic, then noticing it was significant a few weeks after the subject accident.”[19]
[19] Application p 24.
Dr Porteous went on to state,
“However to confirm this I believe the contemporaneous medical reports need to be obtained and reviewed, with it being helpful that these show mention of the shoulder within a few weeks of the subject accident. If it is several months after the subject accident I could not conclude it is related to that.”[20]
[20] Application p 24.
Dr Porteous differs from Dr Chien’s view as to whether the applicant suffered a rotator cuff tear in the motor vehicle accident (Dr Chien) or aggravated a pre-existing rotator cuff tear
(Dr Porteous) but does accept that a right shoulder injury did occur in the motor vehicle accident if there was an onset of symptoms within weeks rather than months.
Dr Lee’s report is dated 10 March 2024 and does not set out a history of the onset of right shoulder symptoms but provides a diagnosis of the right shoulder injury in the following terms,
“R shoulder:Tendinopathy of the supraspinatus with partial-thickness articular-sided tear of the anterior insertion measuring 4.5 x 3mm. Subacromial/subdeltoid bursitis.”[21]
[21] AALD2 p 2.
On causation Dr Lee’s comments were set out in a number of comments,
“Examination findings and mechanism of the accident are consistent. High speed acceleration/deceleration injury causing structional(sic) injuries of shoulder and low back.”
“shoulder injuries are common from MVAs and the typical mechanism will be, while the driver’s upper limb is relatively stationary in a driving position, eg hand on steering wheel, his/her torso will experience high level acceleration/deceleration and shoudr[sic] joint will be absorbing the high mechanical energy between the tow[sic] body parts.”[22]
[22] AALD2 p 3.
The respondent qualified Dr Anthony Smith orthopaedic surgeon to carry out an independent medical examination on 30 March 2023 and he provided a report dated 17 April 2023.
The respondent relies on that report and three supplementary reports dated 8 May 2023,
5 June 2023 and 29 June 2023 in these proceedings.
In his report dated 17 April 2023 Dr Smith recorded the applicant as having the following symptoms following the motor vehicle accident,
“He had pain in the low back, left leg and calf. The low back pain was worse than the leg pain. There was also right shoulder pain and stiffness, with some occasional pins and needles in the right upper limb to the hand but not the thumb.”[23]
[23] Reply p 36.
It is unclear to me reading the report whether the passage cited above is the applicant’s actual history of injury or Dr Smith’s amalgamation of history of injury, history of treatment and history of symptoms in the one paragraph as he later comments under the heading “OPINION”,
“This man gives a history that would suggest he was involved in this motor-vehicle accident during the course of his employment on 24 May 2022, leading to the low back problem, and sometime later, a right shoulder problem.”[24]
[24] Reply p 37.

In his opinion Dr Smith states,
“There is no organic illness that could produce the pattern of weakness that he exhibits in the right upper limb. There is no relationship between any rotator cuff disease he may have and the motor vehicle accident on 22 May 2022 [sic], as there is a gap of about one week between the accident and any shoulder symptoms.”[25]
[25] Reply p 38.
Dr Smith further stated,
“It is improbable he would have sustained a rotator cuff tear under the circumstances of the motor vehicle accident.”[26]
[26] Reply p 38.
It is to be noted that the opinion expressed in the report of Dr Smith dated 17 April 2023 appears to have been given without the benefit of the doctor reviewing the MRI report of the right shoulder which he subsequently considers in his supplementary report dated
5 May 2023.
The supplementary report of 17 April 2023 is commented on as follows,
“I have been provided with a CAT scan report of the sacrum from 3 June 2022. This demonstrates no fractures. Degenerative disease is described at L4-5 and L5-S1.
There is an MRI report available from 15 June 2022. Degenerative disease is described from L3-4 down. The images are not available. L3-4 would appear to be the most severely affected level. There is a bright area in the annulus at L3-4 which is described as a tear.
There is another MRI report available of the low back from 4 January 2023 demonstrating the same changes.
There is an MRI report of the right shoulder, the date of which is unclear, but would appear to be undertaken prior to 1 October 2022. This demonstrated degeneration in the supraspinatus, with partial thickness tearing. There is moderate distension of the bursa.
These investigations demonstrated lumbar degenerative disease. I have not seen the images. They are possibly more severe than average for a man of his age. No post-traumatic lesion is described. The bright area in the annulus described as a tear could also be described as an area of myxoid degeneration. It is likely part of the degenerative process and is seen commonly in asymptomatic people.
At the age of 35, the changes described on the MRI might be a little bit more severe than average. There is also no post-traumatic lesion described in the investigation. Bursitis or bursal swelling is inordinately common in asymptomatic people.
Based on this material, there is no reason to alter my opinion I expressed to you in my report on 17 April 2023.”[27]
[27] Reply p 41.
I find the contents of the supplementary report cited above to be confusing and impossible to properly understand as the doctor appears to combine his comments in relation to the contents of the three imaging reports so that it is impossible to understand where the reference to one report ends and the comments on another report begins. As an example does the sentence beginning with the words “At the age of 35 …” refer to the MRI of the shoulder or of the lumbar spine?
As another example does the reference to “no post-traumatic lesion described in the investigation” refer to both MRIs and the CAT scan or to one or two of them only?
Further it seems that Dr Smith is attempting to exclude any interpretation of the radiological material that would be inconsistent with his diagnosis or opinions that all of the applicant’s problems with the back and right shoulder are the consequence of pre-existing degenerative changes.
I could go on at some length on the unhelpfulness of the commentary recited but it is sufficient to note that I find it of little assistance and as a consequence of little weight.
In the two further supplementary reports Dr Smith asserts that the applicant was manufacturing symptoms.
No other doctor has suggested that the applicant is manufacturing symptoms and there are a number of aspects of the evidence that suggest that the applicant is not doing so.
The applicant reported that he suffered back pain at or shortly after the time of the accident on 24 May 2022 and also developed pain in the left leg and calf.
After initially seeing his general practitioner Dr Zhu the applicant came under the care of Jiho Josh Han physiotherapist who appears to have first seen the applicant on 20 June 2022 and at that time complained of bilateral shoulder pain.[28] At that time the applicant appears to also have been complaining of bilateral leg pain.
[28] AALD1p 60.
By the time the applicant is seen by Dr Rosenthal at the request of the insurer there is no mention of left shoulder problems nor of right leg pain.
Also it is interesting to note that although the applicant was involved in a motor vehicle collision there is no complaint made about ongoing neck pain, headaches and other whole of body “whiplash” type symptoms that one traditionally sees in cases where symptoms are being “manufactured”.
As no other doctor makes any mention of inconsistent presentation, exaggeration or manufacture of symptoms and having regard to the relatively limited area of complaints now made by the applicant I do not accept Dr Smith’s views that the applicant is manufacturing symptoms.
The overall impression created by Dr Smith’s report and supplementary reports is that he is seeking to act as a partisan witness rather than an independent medical expert and I note the criticisms made of Dr Smith’s comments in the report of Dr Chien dated 10 August 2023[29] which I find convincing. Certainly referring to the findings in a research article dealing with participants aged 50-80 when dealing with the findings in a 35 year old does not seem to be the conduct of an independent expert.
[29] Application pp 32-33.
In all the circumstances and having regard to the totality of the evidence I find the opinions of Dr Smith to be unpersuasive and of little or no weight.
Drs Chien, Rosenthal, Porteous and Lee all accept that the motor vehicle accident on
24 May 2022 could have caused an injury to the applicant’s right shoulder however some of those doctors have expressed the view that a delay in developing symptoms in the right shoulder would affect their view as to the relationship between the motor vehicle accident and the applicant’s shoulder problems.
Mr Rickard was certainly correct to identify the issue of delay of the onset of symptoms as being an important issue in deciding whether the applicant discharges his onus of proof in the case.
The applicant’s statement states that he started to develop right shoulder pain over the following week.
Dr Zhu’s notes do not record any reference to the applicant reporting right shoulder problems until 22 July 2022 although as noted above the doctor was certainly aware of the applicant complaining of increasing problems with the right shoulder no later than 7 July 2022.
While there is no doubt that care needs to be exercised when considering inconsistencies between a party’s evidence and histories in clinical notes[30] in this particular case I have no hesitation in accepting the comments in Dr Zhu’s notes that no complaint was made to him at the time of the first consultation of any problems with the right shoulder.
[30] Per Basten JA in Mason v Demasi [2009] NSWCA 227.
The reasons for this view are firstly that the applicant does not ever make any claim that he made a report of injury to the shoulder at the time of the examination and secondly that
Dr Zhu’s comments in the notes at the time of the transfer of the applicant to another general practitioner appear to confirm that it was his memory that the applicant was specifically asked about what injuries he suffered and no mention was made of the shoulder.
By 20 June 2022 the applicant was complaining of problems of pain in the shoulders which is within weeks of the date of the accident.
Certainly by 7 July 2022 the applicant was making significant complaints about right shoulder problems.
In my view there is nothing inconsistent between the applicant’s statement that he first started getting pain in the right shoulder around a week after the accident and the delay in reporting the symptoms to a health professional. That sequence would be consistent with symptoms worsening or persisting over time to the point that treatment becomes necessary.
There also is nothing inconsistent with Dr Zhu’s records and the applicant’s version in his statement that pain in the right shoulder developed over the following week. Indeed the applicant’s statement and the medical records are consistent over that period of time.
As I have noted there is certainly some complaint of shoulder pain at the time the applicant first sees a physiotherapist on 20 June 2022 and by 7 July 2022 the applicant is clearly suffering from pain and restriction of movement in the right shoulder.
The histories obtained by Drs Rosenthal and Porteous refer to the applicant giving a history of onset of shoulder pain a few weeks after the accident rather than in the first week as stated in the applicant’s statement.
Dr Chien’s history was, of course, consistent with the contents of the applicant’s statement.
Other than the inconsistency between the applicant’s statement and the histories recorded by some doctors as to the approximate date the applicant became aware of the onset of pain in his right shoulder there is no other material suggesting that I should not accept the applicant as a witness of truth.
In my view the applicant has attempted to give an honest version of events in his statement and similarly was attempting to give an accurate history to the doctors.
Doing the best that I can to reconcile the various pieces of evidence it is my view that the most likely sequence of events is that the applicant noted an onset of pain in the right shoulder of some significance no earlier than one week after the motor vehicle accident and well prior to 20 June 2022.
Other than Dr Smith all the other doctors who have provided medical reports accept that the motor vehicle accident could cause an injury to the applicant’s right shoulder and I accept those opinions.
I accept the applicant’s statement (and history to doctors) that prior to the motor vehicle accident he had not experienced any problems with his right shoulder.
The notes of Dr Zhu do not record any prior problems with the shoulder (noting that same only record a very limited range of attendances with the doctor prior to the motor vehicle accident on 24 May 2022).
There is nothing before me that suggests any injury was sustained to the right shoulder after the motor vehicle accident.
Drs Porteous and Rosenthal both have a history of onset of shoulder pain some weeks after the motor vehicle accident and both doctors with that history are prepared to accept that the applicant suffered an injury to his right shoulder in that motor vehicle accident.
Taking the evidence as a whole on the balance of probabilities I am comfortably satisfied that the applicant suffered an injury to his right rotator cuff in the motor vehicle accident that occurred on 24 May 2022.
There is no dispute that the proposed treatment pleaded in the application is not reasonably necessary and accordingly there will be an award pursuant to s 60 of the 1987 Act that the respondent pay for the treatment as sought in the application.

SUMMARY

The applicant sustained an injury to his right shoulder in the course of his employment on
24 May 2022.
The proposed medical, hospital and related treatment pleaded in the application is reasonably necessary treatment within the meaning of s 60 of the 1987 Act.
There will be an award for the applicant pursuant to s 60 of the 1987 Act for payment of the claimed medical hospital and related treatment expenses.

[2024] NSWPIC 215

29 April 2024