Schellack v Jarvie Engineering Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Schellack v Jarvie Engineering Pty Ltd [2024] NSWPIC 665
APPLICANT:	Glenn Schellack
RESPONDENT:	Jarvie Engineering Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	3 December 2024 14 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; disputed right shoulder disease injury and entitlement to weekly benefits and medical and related expenses; Held – the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in the right shoulder within the meaning of section 4(b)(ii) arising out of his employment with the respondent deemed to have occurred on 9 August 2023; the applicant had no current work capacity between 9 August 2023 and 12 February 2024 as a result of the injury; the respondent is to pay the applicant weekly benefits compensation and reasonably necessary medical and related treatment as a result of the injury.
DETERMINATIONS MADE:	The Commission determines: 1. The Application to Resolve a Dispute is amended to include the deemed date of injury 9 August 2023. 2. The applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in his right shoulder in the course of his employment with the respondent with deemed date of injury 9 August 2023 pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act). 3. The applicant had no current work capacity from 9 August 2023 to 12 February 2024 and is entitled to weekly compensation in that period pursuant to ss 36 and 37 of the 1987 Act. 4. The applicant is entitled to payment of reasonably necessary medical, hospital and related expenses arising from the right shoulder injury with deemed date of injury 9 August 2023 including the cost of surgery on 9 August 2023 pursuant to s 60 of the 1987 Act. The Commission orders: 5. The respondent is to pay the applicant weekly compensation at the pre-injury average weekly earnings rate of $1,537.99 subject to indexation as follows; (a) for the period 9 August 2023 to 30 September 2023 at $1,537.99 x 95%, being $1,461.09, pursuant to s 36(1) of the 1987 Act; (b) for the period 1 October 2023 to 8 November 2023 at $1,537.99 x 1.0237, or $1,574.44 rounded to $1,570.00 x 95%, being $1,491.50 pursuant to s 36(1) of the 1987 Act, and (c) for the period 9 November 2023 to 12 February 2024 at $1,574.44 rounded to $1,570.00 x 80%, being $1,256.00 pursuant to s 37(1) of the 1987 Act. 6. The parties have 14 days liberty to apply with respect to the calculation of indexation of the weekly compensation amount referred to above. 7. The respondent is to pay the reasonably necessary medical, hospital and related expenses arising from the applicant’s right shoulder injury with deemed date of injury 9 August 2023 including the cost of surgery on 9 August 2023 pursuant to s 60 of the 1987 Act at the State Insurance Regulatory Authority gazetted rates. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Glenn Schellack has been employed as a fitter by the respondent, Jarvie Engineering Pty Ltd later Swanson Industries (Engineering) Pty Ltd, from 7 May 2007.
His apprenticeship as a fitter commenced in January 1976. Since then the applicant has worked as a maintenance fitter, mower mechanic, contract cleaner and fitter carrying out heavy manual work. He sustained right shoulder injuries requiring surgery in 1998 and 2017 as well as left shoulder injuries which are not the subject of these proceedings.
The applicant began to experience pain in his right shoulder again in June 2022 and came to reverse total shoulder replacement surgery on 9 August 2023. He brought a claim for weekly benefits compensation for the period 9 August 2023 to 12 February 2024 when he returned to work for the respondent, and for medical and related expenses.
The respondent issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 27 September 2023 disputing liability for the applicant’s unspecified sprain of right shoulder joint. The decision was maintained on 27 December 2023 following internal review.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 18 July 2024 claiming weekly benefits compensation and medical and related expenses including for the right reverse total shoulder replacement carried out on 9 August 2023.
The dispute was listed for conciliation conference and arbitration hearing for determination of whether the applicant sustained a right shoulder injury on deemed date of injury 1 June 2022 as a result of employment with the respondent, and any resulting entitlement to weekly benefits compensation and reasonably necessary medical expenses.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether the applicant sustained a right shoulder injury on deemed date of injury 1 June 2022 (amended to deemed date of injury of 9 August 2023, discussed further below) as a result of employment pursuant to s 4(b) of the Workers Compensation Act 1987 (1987 Act);
(b) the extent and quantification of the applicant’s entitlement to weekly compensation in the period 9 August 2023 to 12 February 2024 pursuant to ss 36 and 37 of the 1987 Act, and
(c) whether the applicant is entitled to medical, hospital and related expenses as a result of injury pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing before the Commission by audio visual link on 11 October 2024. Mr Bruce McManamey appeared for the applicant instructed by Ms Claire Jones of Turner Freeman Lawyers. Mr Ross Hanrahan appeared for the respondent instructed by Ms Fatma Zreika of Bartier Perry Lawyers. Ms Sarhene was also present.
Two Applications to Admit Late Documents dated 4 October 2024 were admitted into evidence by consent during conciliation, and the applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,537.99.
During conciliation the applicant sought leave to amend the ARD to include the deemed date of injury of 9 August 2023. No event occurred on the pleaded deemed date of injury of 1 June 2022 and that date was misconceived. The applicant accepts the deemed date of injury should be 9 August 2023 being the date of his incapacity. The substance of the claim remains the same, being the claim for weekly payments between 9 August 2023 and 12 February 2024 and medical and related expenses as pleaded.
The respondent objected to the proposed amendment on the grounds that the respondent had not been afforded an opportunity to respond to that deemed date of injury.
The applicant’s claim form of 21 August 2023 includes the date of injury as June 2022, the date the applicant stopped work as 8 August 2023, and makes no reference to previous injuries.
I note Dr New’s report includes that in June 2022 the applicant began experiencing pain in his right shoulder due to the repetitive and heavy nature of his employment. In accordance with ss 15 and 16 of the 1987 Act however the injury is deemed to have happened at the time of the applicant’s incapacity which is 9 August 2023. This is the date that the claim for weekly payments commences in the pleadings. I agree with the applicant that the claim remains the same in substance.
The respondent has been aware of the period of the claim for weekly payments and medical expenses related to the surgery on 9 August 2023 since the claim was made by the applicant on 21 August 2023. The request for internal review of 12 December 2023 relied on the report of Dr New and other medical and investigation reports that refer to the period of incapacity as commencing on 9 August 2023.
I indicated an intention to exercise my discretion to grant leave to the applicant to amend the ARD to include the deemed date of injury of 9 August 2023.

In the arbitration hearing leave was granted to amend the ARD to include the deemed date of injury of 9 August 2023 pursuant to r 21 of the Personal Injury Commission Rules 2021 (the Rules).
This is in accordance with the guiding principle of the Commission in s 42 of the Personal Injury Commission Act 2020 (PIC Act) to be applied to practice and procedure, that is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
Section 43 of the PIC Act refers to proceedings before the Commission being conducted with as little formality and technicality as the proper consideration of the matter merits.
In my view the amendment of the deemed date of injury in the circumstances of this case allows the Commission to act according to equity and good conscience and determine the substantial merits of the case without regard to technicalities or legal forms in accordance with s 43 of the PIC Act.
While the applicant failed to comply with r 20 of the Rules with respect to amendments, leave was granted pursuant to r 19(3) of the Rules, and noting the pleadings after amendment continue to be of a disease injury.[1]
[1] Haddad v The GEO Group Australia Pty Ltd [2022] NSWPICPD 23.
The respondent during conciliation sought an adjournment of the proceedings on the basis that documents produced by GIO in answer to a Direction for Production were inadvertently provided to the incorrect law firm. The respondent had not had an opportunity to review the documents and submitted it had significant difficulty in finding out about the applicant’s previous two claims in the absence of those documents being available. The applicant objected to the application to adjourn.
I indicated I did not intend to agree to the application to adjourn the proceedings.
I understand the documents of the respondent’s previous insurer relate to the applicant’s right shoulder injury for which he came to surgery in May 2017. I determined in the arbitration hearing that the application for an adjournment did not succeed on the basis of my view that it appears the information likely to be contained in the previous insurer’s file is not of a nature to provide further information about the previous injuries relevant to the nature of the current claim before the Commission. In my view there is sufficient medical and other material in the documents provided in the current claim so that it is now able to be determined.
A request for an adjournment on the day of the proceedings will only be granted in exceptional circumstances. A respondent is expected to take reasonable steps to prepare and present its case on the day fixed for conciliation/arbitration.[2] Some information about the applicant’s previous injuries and claims is contained within the documents before the Commission in these proceedings.
[2] Moombalene Local Aboriginal Land Council v Daily [1998] NSWCC 22; (1998) 16 NSWWCCR 469.
In my view refusal of the application for adjournment did not seriously prejudice the respondent as the respondent had every reasonable opportunity to deal with the issues adverse to its interests and to obtain the previous insurer’s file prior to the conciliation/arbitration.[3] An adjournment would of course cause prejudice to the applicant due to the delay in his claim being determined. On considering the competing factors I formed the view that the application for an adjournment ought not succeed in the circumstances of this case.
[3] Dapto Leagues Club Ltd v O’Brien [2006] NSWWCCPD 89.
On 31 October 2024 the respondent requested immediate access to late documents produced by GIO on the basis that the documents were relevant and ought to be considered by the Commission before a determination was made. The applicant opposed the request on the basis the claim had been heard, the GIO documents were irrelevant and access by either party was neither necessary nor warranted.
Directions were issued on 4 November 2024 that the applicant have first access with general access thereafter, the respondent to file an Application to Admit Late Documents if it so chose, and the matter was listed for a further preliminary conference if required on 27 November 2024.
The respondent filed an Application to Admit Late Documents on 21 November 2024, the applicant objected to the admission of the documents and on 26 November 2024 the respondent withdrew its’ reliance on the late documents. The documents produced by GIO have not been considered.
I am satisfied 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)    the applicant’s Application to Admit Late Documents (AALD1) dated 4 October 2024 and attached documents, and
(d)    the respondent’s Application to Admit Late Documents (AALD2) dated 4 October 2024 and attached documents.

Oral evidence

No application was made to call oral evidence or cross examine any witness.

Applicant’s evidence

The applicant relies on his statements dated 1 July 2022 and 29 April 2024.
His apprenticeship as a fitter commenced in January 1976 and he has worked as a maintenance fitter, mower mechanic, contract cleaner and fitter since that time.
All the work he performed as a fitter has been heavy manual work requiring repetitive use of his arms and shoulders, often working above shoulder height.
In about September 1997 due to the repetitive nature of his employment he began suffering with significant pain in his shoulders, more pronounced in the right shoulder.
Dr Kleinman performed an open arthroscopy, open acromioplasty and rotator cuff repair of the right shoulder on 24 August 1998. After five or six months of physiotherapy he made an excellent recovery.
The applicant commenced working as a fitter for Jarvie Engineering (now Swanson Industries (Engineering) Pty Ltd) on 7 May 2007. His main duties included assembling, disassembling, repairing and cleaning cylinders used to support roofing in underground mining, some of which were six to eight feet long. He swung sledgehammers of between seven and 20 pounds in a sideways motion.
After experiencing pain in his left shoulder in about mid-2014 and following physiotherapy treatment, Dr Petrelis performed an arthroscopy on the left shoulder in October 2015.
In about May 2016 the applicant started experiencing right shoulder issues and had trouble lifting the sledgehammer. He was placed on light duties. Dr Innis, his general practitioner, certified him as fit for restricted duties in November 2016. A claim was made to the respondent for his right shoulder injury on 9 November 2016 and was declined at that time.
Dr Petrelis performed a right shoulder arthroscopy and biceps tenodesis on 4 May 2017. On 22 November 2017 the applicant was cleared to return to work on full duties. His duties were modified so that he did not have to use the sledgehammer.
In his second statement of 29 April 2024 the applicant describes his right shoulder pain increasing as a result of his work with the respondent.
Dr Petrelis carried out right reverse shoulder replacement surgery on 9 August 2023, paid for through the public system.
His claim for workers compensation was denied. During the period he was unable to work the applicant was required to use annual leave and long service leave.
The applicant was cleared to return to work on 12 February 2024.
The claim form signed by the applicant on 21 August 2023 includes the date of injury as June 2022, the injury is described as painful right shoulder caused by long term use of working above shoulder height with heavy tools in the hydraulic workshop, and the date and time of injury as ‘built up over time’.[4]
[4] ARD page 16.

Medical evidence

Dr Charles New, orthopaedic and spinal surgeon, provided a medico-legal report to the applicant’s solicitors on 22 November 2023.
Dr New sets out the history of the applicant’s shoulder injuries, including that he began to experience pain in his right shoulder in June 2022.
The doctor opines that the applicant’s employment was the main contributing factor to the development and aggravation of this injury and subsequent disease process which complicated the original injury. The nature and conditions of his work have complicated the progression of his symptoms.
In relation to medical treatment, Dr New’s opinion is that the medical treatment completed had been reasonably necessary and the applicant’s employment materially contributed to the need for that treatment.

Dr Leon Kleinman, treating orthopaedic surgeon, recommends arthroscopy and subacromial decompression of the right shoulder on 18 November 1997, placing the applicant on a hospital waiting list.

51.The operation form is in evidence for arthroscopy right shoulder and open right rotator cuff repair with subacromial decompression on 24 August 1998, for right full thickness rotator cuff tear and right subacromial impingement.

On 16 December 1998 Dr Kleinman reports on an excellent result from the right shoulder surgery, and really good movement with a little bit of stretching and aching when he goes to full external and internal rotation.
Dr Kleinman reports on 25 May 2000 that the applicant’s right shoulder has done well following surgery.
Dr Minas Petrelis, orthopaedic surgeon, reports on 7 May 2007 that the applicant has had problems with both his shoulders, he has had right shoulder surgery and he now has problems with his left shoulder.
The operation report of Dr Petrelis of 26 March 2008 refers to repair of the left shoulder cuff. The doctor’s operation report of 24 September 2008 is regarding left shoulder arthroscopy and debridement.
On 28 August 2014 Dr Petrelis reports the applicant complains of pain in both shoulders and both shoulders still had a reasonable range of motion.
On 3 November 2014 the doctor reports on scans and MRIs of both shoulders, noting a lot of tendon changes at the supraspinatus insertion with a full thickness tear on the right.
The doctor suggests physio and then getting the applicant back for review. He explained to the applicant that re-operating for revision situations is usually not as good as the primary indication.
On 18 December 2014 Dr Petrelis reports the right shoulder is not settling down and he organises for surgery. He tells the applicant it is unlikely he would be able to repair it but sometimes a debridement of the tendon ends and smoothing out everything can make a difference.
On 1 February 2017 Dr Petrelis reports the applicant presented to Dr John Watson for medico legal review of his right shoulder. The applicant had previous rotator cuff surgery and further imaging showed full thickness tear of his supraspinatus and chondromalacia of the central aspect of his glenoid plus acromioclavicular AC joint arthropathy and biceps pathology. Dr Petrelis says the applicant should have surgery to his shoulder.
Dr Petrelis believes work is not responsible for any surgery. He comments that the applicant feels this is fully work related but given the fact that there is pre-existing rotator cuff surgery it is at best an aggravation.
On 4 May 2017 the doctor reported on right shoulder scope, subacromial decompression and debridement of cuff which was non-repairable, plus biceps tenodesis. The scapularis was intact and the supraspinatus infraspinatus was found to be thin, atrophic and not repairable.
On 4 November 2022 Dr Petrelis provided costings for the applicant to undergo shoulder replacement including his fees of $6,375.

Dr Petrelis reports on the reverse shoulder replacement on 9 August 2023. The scapularis was intact and the supraspinatus infraspinatus deficient.
Dr Paul Innis, general practitioner, refers the applicant to Dr Petrelis on 5 August 2015. In his report of 20 December 2015 Dr Innis comments that the applicant’s shoulder problems had been going on for over two years and his work history as a fitter/turner is likely to be the biggest contributing factor to his shoulder injury. The applicant is only 56 and too young for this to be put down to age related degeneration.
The Belmont District Hospital Discharge Referral for admission on 4 May 2017 refers to right shoulder arthroscopy, synovial debridement and biceps tenodesis due to a right supraspinatus tear.

67.Dr Nicholas Croker, orthopaedic registrar at the Belmont District Hospital, reports to Dr Innis on 9 April 2018. Nine months after right shoulder surgery the doctor reports the applicant has done extremely well postoperatively. He is happy with his shoulder function, happy to clear him for work and he should not have any restrictions working. He comments that a supraspinatus tear was noted but did not require repair.

On 25 November 2018 Dr Innis responds to a questionnaire from Allianz. His answers include that the applicant’s more recent work as a boilermaker is the main contributing factor to his shoulder injury.
Dr Bodel provided a medico legal report on 28 February 2020 in relation to the disputed right shoulder surgery of 4 May 2017. Dr Bodel diagnoses a full thickness rotator cuff tear in the right shoulder and a similar tear in the left shoulder caused by the nature and conditions of work in general with the respondent.
In Dr Bodel’s opinion there is evidence that there has been aggravation, acceleration, exacerbation and deterioration of a disease process in the region of the right shoulder, being the underlying rotator cuff pathology.
In Dr Bodel’s report of 5 September 2022 he says the nature and conditions of the applicant’s work with the respondent is the type of work which could cause significant aggravation, acceleration, exacerbation and deterioration to a disease process, being the rotator cuff pathology in both shoulders, which was present in this circumstance when he commenced work at that workplace. The nature of that work has led to the inevitable need for the shoulder surgery in both shoulders.
On 9 October 2023 Mr Stuart MacPhail, physiotherapist, reports on rehabilitation of the applicant’s right reverse total shoulder replacement and that he is not yet at a functional level to return to full duties at work.
Radiology reports from 4 November 1997 to 25 November 2016 are attached to the ARD.
On 17 June 2022 an ultrasound of the right shoulder shows the long head of biceps is ruptured, the subscapularis is tendinopathic, there is a full thickness tear of supraspinatus and concludes the applicant has subacromial bursitis.
The MRI right shoulder of 3 July 2022 shows there are now complete tears of the supraspinatus and infraspinatus, interval resection of the lateral clavicle and interval biceps rupture.
The CT scan right shoulder of 4 July 2022 shows mild AC and glenohumeral joint arthropathy, superior subluxation of the humerus related to cuff tear resulting in moderate narrowing of the acromiohumeral space, neutral glenoid version and severe atrophy of the supraspinatus.
The CT scan right shoulder report of 25 May 2023 finds glenohumeral osteoarthritis, moderate joint effusion and AC arthropathy, full thickness rotator cuff tendon tear and chronic tear of the supraspinatus muscle.
Certificates of Capacity of 21 August 2023 and 7 September 2023 with AALD1 certify the applicant as having no current capacity for any work between 9 August 2023 and 9 October 2023. The Return to Work Certificate of Dr Kuoi of 12 February 2024 certifies the applicant fit to return to work.

The respondent’s payslips from 2 August 2023 to 14 November 2023 and a schedule of out-of-pocket expenses with invoices and receipts are attached to the ARD.
The respondent’s payslips for the period 15 November 2023 to 13 February 2024 are with AALD1.
The Certificate of Determination – Consent Orders of 9 December 2022 issued in previous proceedings are attached to the ARD. By consent weekly payments were paid to the applicant for the period 2 May 2017 to 22 November 2017 as well as medical expenses.

Respondent’s evidence

The s 78 notice dated 27 September 2023 disputes liability for unspecified sprain of the right shoulder joint. The notice refers to previous shoulder surgery in 1997 and 2017, that there is no supporting medical evidence to confirm employment has been a contributing factor to the shoulder condition and further investigations are needed.
The internal review of 27 December 2023 maintains the dispute on the basis that Dr New’s opinion does not provide sufficient reasoning for his conclusion on causation for injury, or regarding the claim for surgery and alleged incapacity for work, and including an absence of reasoning on the impact, if any, of the prior injuries and pathology to the shoulders which date back to 1997, or the nature of the applicant’s work prior to commencing with the respondent from 1976 to 2000 which also involved work as a ‘fitter’.
The applicant’s claim form dated 21 August 2023 referred to above is relied upon by the respondent.
The CT right shoulder report dated 25 May 2023, the MRI right shoulder report dated 3 July 2022, the CT right shoulder report dated 4 July 2022 and the X-ray and ultrasound reports of the right shoulder dated 17 June 2022 referred to above are attached to the Reply.
The Certificates of Capacity of Dr Vijay for the period 9 August 2023 to 12 September 2023 certify the applicant as having no capacity for work.
Medical records produced by Dr Vijay of the Charlestown Medical & Dental Centre to 10 September 2024 are with AALD2.
On 23 June 2017 Dr Innis, the applicant’s previous general practitioner, records “needs MC. Was told to go back to work light duties.”[5]
[5] AALD2 page 24.
On 7 August 2017 Dr Innis records “his employer won’t have him back on restricted duties, right shoulder surgery May.”[6]
[6] AALD2 page 24.
Dr Innis records on 18 December 2017 “got a RTW certificate, had a medical and they wants [sic] a report from Dr Petrelis”.[7]
[7] AALD2 page 23.
A note made by Dr Innis on 7 August 2018 includes “regarding shoulder”.[8]
[8] AALD2 page 20.
Dr Vijay records on 8 June 2023 that the applicant is a 63-year-old fitter with the respondent for the last 16 years. He had an initial right shoulder injury in about 1997, right shoulder pain started to recur back after a few years, he had a good recovery post-surgery in 2017 and returned back to pre-injury duties. Right shoulder pain started to come back about four to five years ago and has worsened since then. The applicant has seen Dr Petrelis, surgery is planned, and he has been doing pre-injury duties so far.
On 7 August 2023 Dr Vijay records ongoing right shoulder pain, surgery is booked for 9 August 2023 and “no problems with current pre-injury duties, working as fitter.”[9]
[9] AALD2 page 5.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
A disease injury encapsulates either the development of a disease or the aggravation, acceleration, exacerbation or deterioration of a disease. In either instance one has to look at the nature of the employment.
In s 15 of the 1987 Act one merely looks at the nature of the employment and it is not necessary to establish causation with the specific respondent. In s 16 liability falls upon the last employer who makes a significant or substantial contributing factor to the injury.
In either case the enquiry begins with the nature of the applicant’s employment throughout his employment and not just with the respondent. The entirety of the applicant’s employment history is the relevant period to a s15 or s 16 claim, and in particular of course employment with the respondent.
While the applicant relies on the matter being either a s 4(b)(i) or 4(b)(ii) claim, the medical evidence suggests more strongly in this instance that it is an aggravation.
The applicant’s evidence is set out in two statements, the first of which sets out his employment history.
Prior to working for the respondent he worked as a maintenance fitter and as a mower mechanic.
In September 1997 he started suffering significant pain in both shoulders as a result of the repetitive nature of employment with Union Motors as a lawn mower mechanic. He sought medical treatment and there is surgery to the right shoulder referred to in Dr Kleinman’s reports.
Dr Kleinman records there had been an excellent result from the right shoulder surgery. This is consistent with the applicant’s evidence, that after five or six months of physiotherapy he made an excellent recovery.
The applicant continued working as a contract cleaner and then in October 2001 he started working as a fitter.
He worked with Nareena Industries Pty Limited from 2001 to 2007 then on 7 May 2007 he started with Jarvie Engineering Pty Limited.
It arose at some stage that the name of the respondent changed to Swanson Industries (Engineering) Pty Limited. The relationship is not disclosed in the evidence other than by the applicant who describes continuous employment with what he understood to be Jarvie Engineering.
On the state of the evidence one would consider the period of employment started on 7 May 2007 up until the deemed date of injury of August 2023 as a continuous period of employment with the one employer.
The applicant describes his work as a fitter which has all been heavy manual work requiring the repetitive use of his arms and shoulders, often working with his arms above shoulder height. A detailed description is set out of the work he performed.
This work puts a strain on his shoulders and certainly it is work that is more than capable of causing injury to the shoulder. Rather than drawing an inference there is the express opinion from Dr Bodel that this type of work could in fact cause this type of injury.
In 2016 the applicant developed problems with his right shoulder and he came to surgery. At this time he was working for the respondent. The respondent sought to deny liability and ultimately orders were made in the Commission providing for payment of compensation for the period 2 May 2017 to 22 November 2017.
The work up until 2017 was not only capable of causing injury but had caused an injury at that time.
The applicant tells us that following that injury he had a period off work until he returned to work on full duties on 22 November 2017. His duties were modified so that he did not have to use the sledgehammer any longer. From that time he otherwise continued to do the same work.
In his second statement the applicant says his right shoulder pain increased as a result of continuing to perform the duties detailed in his first statement except the sledgehammer work was no longer there.
Over time the pain increased and eventually the doctor recommends further surgery which he had on 9 August 2023, and which lead to the period of incapacity in the current claim. That is the factual background of the work done and there is no contradictory evidence.
Dr Petrelis on 9 August 2023 reports to Dr Singh that the reverse shoulder replacement surgery was carried out and the subscapularis was intact, supraspinatus infraspinatus deficient, the capsule was recessed including redundant bursa and degenerate cuff, subscapularis peel was performed, three head with three locking screws were used. That was the surgery performed and that is what was found.
In terms of the causation of the condition that led to the surgery there is only one opinion on that with respect to the 2023 injury.
Dr Petrelis does not give us an opinion. It can be noted that in respect of the 2017 matter Dr Innis expressed an opinion that the applicant’s troubles began over two years earlier and that his work as a fitter/turner is likely to be the biggest contributing factor to his shoulder injury. He is only 56 and is too young for this to be put down to age related degeneration.
This opinion is repeated in his response to a request from Allianz at that time. The doctor says the more recent work as a boilermaker is the main contributing factor to his shoulder injury. There is a clear opinion that this kind of work causes the injury at that time, and there is also the opinion of Dr Bodel at that time.
In respect of the 2023 injury the only opinion is that of Dr New. He took a comprehensive history detailing various conditions and treatments the applicant received for both his left and right shoulders, with the left shoulder not the subject of these proceedings.
Dr New tells us after describing the surgery in 2017 that the applicant began experiencing pain in his right shoulder in June 2022 due to the repetitive and heavy nature of his employment, which is consistent with the applicant’s statement.
There is no argument about what the pathology was and what the treatment has been.
Dr New comments;
“[h]e continues to have debilitating pain in both shoulders of equal intensity, noting that he has had a replacement surgery on the right hand side. He continues to have decreased range of movement on both sides, the right side being more predominant than the left.
The patient has had serious bilateral rotator cuff injury with complete tear of the supraspinatus. The natural history of his condition on the right hand side resulted in him having subluxation of the humeral head requiring reverse total shoulder replacement.
The long term prognosis is poor for both sides in terms of range of movement and pain.”[10]
[10] ARD page 40.
Dr New’s opinion is that the applicant’s employment was the main contributing factor to the development and aggravation of this injury and subsequent disease process, which complicated the original injury. The nature and conditions of his work have complicated the progression of his symptoms.
The doctor is saying the nature of the applicant’s work throughout his working history is the main contributing factor to two things; the development of the injury, the disease process, and also to the aggravation of the injury. That is the only opinion before the Commission on the question of causation and there is nothing to the contrary.
It is against the background of performing significant heavy work, for which there is evidence from Dr New as well as Dr Bodel that this work is fully capable of causing that kind of injury, and we have no other explanation for the condition.
If you accept Dr New’s opinion on the main contributing factor to the development of the condition s 15 applies. In s 15 liability is upon this respondent as the last employer to the nature of which the injury was due. There is no doubt that this kind of work is fully capable of causing this kind of injury.
In terms of the aggravation, it is this work up until August 2023 which has contributed over a fair period of time. There is little difficulty concluding that this employment is a substantial contributing factor particularly in the form that has been interpreted in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd (2009) NSWCA 324 and other cases. The connection is real and of substance and no other factor has been identified.
The prior claim in 2017 is of no moment in these proceedings. There is an injury deemed to have occurred at that time for the purposes of that claim. What is before the Commission now is the question of whether there is an injury deemed to have occurred in August 2023.
On a consideration of the Act and ss 15 and 16 and it is clear in Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166, SAS Trustee Corporation vO’Keefe [2011] NSWCA 326 (O’Keefe) and Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 that one concentrates upon the claim currently being made and what flows from it.
In O’Keefe earlier periods of incapacity are irrelevant to the consideration. One looks at the entirety of his employment and whether it is the main contributing factor to the development of the condition, and that includes the employment as a lawn mower mechanic.
If the Commission is against the applicant on that, it would still have little difficulty in accepting the employment in the period 2017 to 2023, a period of six years of heavy significant work, is the explanation for the development of the symptoms in 2022 and into 2023 which lead to the need for the surgery.
The need for the surgery ultimately arises from the development of symptoms from 2022 through to 2023 that are a material contributing factor to the need for the surgery. They do not have to be the sole contributing factor or even the main contributing factor as long as they are a material contributing factor the development of those symptoms that ultimately contribute to the need for the surgery.
Dr New backs that up by expressing his specific opinion “that the patient’s employment has materially contributed to the need for that medical treatment.”[11]
[11] ARD page 41.
There is no real dispute about incapacity during the relevant period. The claim for medical and related expenses is supported by documentation in the ARD.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The applicant is now aged 64 and commenced employment with this respondent on 7 May 2007 when he was 47 years old.
He had at that stage already undergone repair of his right shoulder by Dr Kleinman. The full thickness tear had been identified at that stage as result of the work he was doing with Union Motors as a lawnmower mechanic in 1997.
The issue is somewhat more complex than considering whether the work he was doing generally across the industry was such as could give rise to the type of condition that you see now.
The respondent submits there are two alternative proposals; that it is either the whole of the employment and the nature of the employment over 16 years between 2007 and 2023 that has given rise to the need for surgery and for the incapacity that has been experienced, or alternatively the period between 2017 and 2023, only six years, which the applicant submitted involved in heavy work.
The applicant acknowledges that after 2017 he was no longer using the sledgehammer and it was the sledgehammer in his work activities before 2017 that led to the need for surgery at that time.
The respondent says the applicant went back to work and continued to work without any complaint whatsoever to his general practitioner Dr Innis between 2018 and 2023, and he was able to do that work without any trouble.
The respondent’s submission is that the reason for the surgery and the incapacity caused in 2023 was his previous injury in 2017, notwithstanding the applicant’s submission that it is of no moment that he has already had an injury. It is up to the Commission to determine what date it is deemed to have occurred having regard to the occurrence of incapacity.
It is important to recognise that s 4(b)(i) and (ii) require you to be satisfied that the injury was contracted only if the employment was a main contributing factor to contracting the disease.
It is clear the main contributing factor to his disease from the nature of the work he was doing at that time and the pathology are the events which occurred before 2017, which gave rise to the deemed date of injury at that time.
The applicant says the pleadings encapsulate both s 4(b)(i) and (ii) even though it is not set out in the pleadings. The case decided by DP Roche of Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 (Kelly) at [9] describes the pleadings as only able to described as gobbledygook. Something similar can be said about these pleadings because they are referring to the complete subluxation of the humeral head and the complete tear of the supraspinatus.

They give you no real insight into the real nature of the pathology in this case or the real nature of the injury being complained of because they refer to something which had already happened many years ago and about which surgery had already taken place.
It is clear the injury arises from the employment and he was doing heavy work and that has been documented over 16 years, but the main source of the applicant’s problems and the main issue concerning injury are the events which occurred before 2017 which the applicant acknowledges was much heavier than he did afterwards when he was no longer using the sledgehammer.
DP Roche went on in Kelly to talk about pleadings where nature and conditions are referred to. The Commission has repeatedly held that the expression ‘nature and conditions of employment’ is meaningless and should not be used. In Kelly DP Roche also referred to Toplis v Coles Group Ltd trading as Coles Logistics [2009] NSWWCCPD 70 on this issue.
The respondent says it is important in this case that the pleadings be set out accurately and meaningfully so that the respondent can answer the claim adequately by seeking appropriate medical evidence.
Unfortunately in this case that has not been permitted because of the way in which the initial claim form was submitted. The claim form was misleading in terms of failing to refer to the very significant previous surgeries that occurred in 1998 and 2017, and to his left shoulder as well in 2008 and 2015 which is not relied on in this case for some reason that has also not been explained.
Is that because it is a pre-existing condition due to his arthritis? That was certainly the argument put forward by Dr Watson in the previous case. The respondent has not been given the opportunity of providing medical opinion in this case to respond to the two different opinions that have been offered by Dr New and Dr Bodel.
The respondent submits that the applicant had not made an election as required by cl 44 as to relying on one medico-legal specialist, although it could be said that Dr Bodel simply provides a history and his opinion is not relied on.
The opinion of Dr New is very unhelpful in the respondent’s submission in that he does not explain what aspect of the applicant’s work has caused further incapacity and the need for further surgery in 2023.
In Dr Vijay’s clinical notes there is a reference to the applicant saying he has done well post-surgery in October 2023. He has had no problem going on a cruise afterwards. He did not feel comfortable working just at that stage and to his credit he did go back to work eventually.
The applicant had an excellent result from his procedures in 1997 and 2017. That he made a good recovery is not a matter about which you can draw inferences concerning causation. It may be that the underlying pathology was extremely serious and the fact that he had any benefit at all as a result of it was an excellent result.
On 8 June 2023 Dr Vijay records, a year after he first experienced pain on the pleadings in the ARD that were amended, that he had some sort of deemed date of injury, event or injury as pleaded then, so a year later the doctor says he has been a fitter with the company for the last 16 years.
He also talks about when the symptoms occurred, first in 1997 and then in 2016, and he has taken a history that the claim was declined in 2017. That was reversed and a determination made so that history is not entirely accurate, but nevertheless he says in June 2023 he made a good recovery post-surgery, the respondent assumes from the 2017 surgery, and returned back to preinjury duties.
The preinjury duties are not however entirely the same in that they did not involve the use of a sledgehammer. The applicant says the pain started to come back about four or five years ago so in about 2018 and then worsened. That is more or less as soon as he goes back to work after his time off in 2017.
The respondent says that any incapacity or need for surgery results from that injury on that 2017 deemed date rather than going through the more onerous process of being satisfied of what the main contributing factor is to a new deemed date of injury. The deemed date of injury is for the same condition which occurs later in time as a result not of heavy work but of similar work within the industry.
That is the history the general practitioner took, and it is informative as it tells you when the real causative elements were in play.
The respondent’s other submission is about the pathology, and particularly a consideration of the reports and opinions of Dr Kleinman and Dr Petrelis.
Dr Kleinman reports in 1998 about the operation he performed. He saw the applicant again in 2002 when he records that the applicant gave up working as a lawn mower and whipper snipperer and in October 1999 took up work as a cleaner and the tasks were onerous. He talks about him having excellent function such that he would not be in a hurry to do any surgical repair at this time.
Even in May 2000 Dr Kleinman who did the original surgery was thinking the applicant could need some further surgery because of what has already happened. The fact he has such excellent function is consistent with his motivation and it is to his credit that he returned to work.
Dr Petrelis on 28 August 2014 says both shoulders seem to have reasonable range of movements and interestingly the Jobes test is negative, but he does have irritation through the shoulder. As there must be some strong underlying feature the doctor says he needs to be sure what has happened with the rotator cuffs and look at ultrasound pictures and an MRI.
Dr Petrelis comments on the MRIs. There is a tear and on the right shoulder there is atrophy and a lot of artifact change from the tendon repair. The tendon repair could only have been the one that went back to 1997 when there was already a full thickness tear. There were a lot of tendon changes at the supraspinatus insertion, a full thickness tear and Dr Petrelis says he should mobilise with physio.
The respondent’s submission is that re-operating for revision situations is usually not good because the damage has already been done by the work done previously, the sledgehammer work and the lawn mowing work, and the surgery is not necessarily going to help.
On 18 December 2014 the right shoulder is not settling down, he has had physiotherapy and Dr Petrelis wants to scope it and decompress the area and see what can be done with the tendon. He says it is unlikely he would be able to repair it.
In February 2017 before the surgery of May 2017 the doctor says there is other imaging showing full thickness tears and various pathological aspects of the right shoulder which the respondent submits are extremely serious.
The applicant also has pre-existing rheumatoid arthritis and the doctor has a challenge in how to treat this man as a result. Dr Petrelis on 1 February 2017 says the applicant should have surgery despite having rheumatoid arthritis and some atrophy of the muscle.
With the surgery there does not appear to have been any further aggravating events or injuries through his work. The evidence suggests the pre-existing condition is the main reason for all of these clinical difficulties.
For that reason, and with the arthritis condition, the respondent submits as the doctor opines that it should not be responsible for the surgery.
Dr Petrelis offers that opinion. The applicant’s shoulder is already in a very precarious state and that is the main contributing factor to any subsequent incapacity or need for surgery. It was physically observed by the doctor in May 2017 it was not repairable at that time.
On the issue of causation the respondent says the insurers of the previous injury should be available before the Commission to put any other argument.
The medical evidence shows a major set of pathology that was in existence in 2017 and it is clear the need for surgery in 2023 and his incapacity that resulted from that is from the 2017 injury, rather than anything that else that happened subsequently as nothing happened subsequently according to Dr Innis.
The respondent invites a finding that nothing that occurred after he returned to work in November 2017 which led to the need for the surgery in 2023. That results from the previous injury in 2017.
The danger is that there is a lack of procedural fairness if the respondent has not been given an opportunity to respond to and to even have an opportunity to look at the material from the GIO. This would shed some light on the different opinions that may be available, additional opinions that may be available in relation to that injury.
Nevertheless the respondent says there is sufficient evidence even based on the applicant’s own case that would allow a finding to be made that the need for surgery and the related incapacity results from the injury which is deemed to have occurred when he ceased work on 3 November 2016 in relation to his prior claim, in which he also had a full thickness tear and was complicated by the matters referred to in the doctor’s description.
The respondent does not dispute that the applicant has returned to work and there is sufficient evidence to justify an incapacity between 9 August 2023 to 12 February 2024 because of the surgery.
However the respondent says the need for the surgery results from the previous injury and not from anything that occurred when the current insurer was on risk, either in June 2022 or anytime thereafter until 9 August 2023 as the deemed date of injury was amended to describe.

Further submissions

The applicant noted that the main contributing factor is relevant to consideration of a disease injury and a material contributing factor is relevant to a consideration of medical treatment.
There is no medical support for the need for surgery as having arisen solely from the earlier surgery, that the injury would have happened at that time in any event and that the work thereafter made no contribution, and bearing in mind the evidence that this type of work can create this kind of injury. There is no medical support for that proposition.
Regarding cl 44 of the Workers Compensation Regulation 2016, Dr Bodel’s report had already been admitted into evidence with no objection previously raised and secondly the report was obtained in respect of a different claim, being the claim in respect of the surgery in 2017 and as such is not caught by cl 44.
Dr Vijay’s clinical note of 8 June 2023 refers to the right shoulder pain coming back about four or five years ago, that since then the pain has been worsening and he has seen an orthopaedic surgeon. This is a range of 2018 or 2019 and the respondent submits that is shortly after he has returned to full duties following the 2017 surgery, and probably means about 12 months after he has resumed full duties in November 2017. He has worked for perhaps 12 months before the shoulder pain returns. That is support for the conclusion that employment is contributing to the condition.
In any event the applicant says he is not constrained to the period of employment since 2017 as the respondent rightly conceded the inquiry in respect of s 15 and s 16 and the applicant says in 4(b)(i) and 4(b)(ii) it is the entirety of the employment history of the relevant nature to which the development of the disease, or is a substantial contributing factor for the aggravation of the disease.
Over the entire period there has been repeated insult to the shoulder requiring treatment arising from all that employment. This claim is no different and it happens to fall upon this respondent.
The applicant also submits that the respondent is the employer and not the insurer, so it is the entirety of the period of employment with the employer. Looking at the employment during the period of time when a particular insurer is on risk is not relevant. The insurer is a scheme agent, the insurer is the nominal insurer and the insurer for the entire of period of employment.
The respondent then sought some indulgence to add that Dr Vijay in the certificate in September 2023 says at diagnosis “right shoulder pain – post surgery”. It is not clear which surgery he is referring to, whether August 2023 or some time earlier, but he also refers to right shoulder surgery in 1997 and 2017. He says something similar in the first certificate about factors that may be relevant as previous surgeries.
The respondent submits that the applicant’s statement gives no precise detail as to what he was doing in the period after he returned to work in November 2017 that would challenge the view that the need for surgery and incapacity in 2023 results from the earlier deemed injury in 2017, that the pathology at that time was so fragile that it could have been aggravated by anything the applicant does, even around the house.
The reason for putting s 9A in the 1987 Act and the other more restrictive tests about causation is to ensure that the particular work activities at any particular time are made clear as the basis for entitlement to compensation rather than other pre-existing or unrelated factors.
The applicant finally notes it is evident the doctor’s certificate is relating to a period in September 2023 when the applicant is off work following the August surgery.
The argument that the shoulder may have spontaneously decompressed and require surgery in any event is totally lacking in medical support. He is certified as fit to return to work in 2017 and he engaged in significant heavy work. It is very unlikely a doctor would make those kinds of certifications in circumstances where there is a shoulder that could collapse doing the lightest of activities.

FINDINGS AND REASONS

Did the applicant sustain a right shoulder injury with deemed date of injury 9 August 2023

Section 9 of the 1987 Act provides that a worker who has received and ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act.
To succeed in his claim the applicant must discharge his onus to establish he sustained an injury to his right shoulder with deemed date of injury 9 August 2023.
I am satisfied on the balance of probabilities and I am actually persuaded[12] that the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process to his right shoulder with deemed date of injury 9 August 2023 due to his employment with the respondent for the reasons that follow.

[12] Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSWCA 246 at [44].

Disease injury

The applicant bears the onus of proving on the balance of probabilities that his right shoulder disease was contracted in the course of employment, or aggravated, accelerated, exacerbated or deteriorated in the course of employment.
Section 4(b)(i) of the 1987 Act defines ‘injury’ as including a ‘disease injury’ meaning a disease contracted by a worker in the course of employment, but only if the employment was the main contributing factor to contracting the disease.
Section 4(b)(ii) of the 1987 Act defines ‘injury’ as including a ‘disease injury’ meaning the aggravation, acceleration, exacerbation or deterioration of an existing disease 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.
There are three components to a ‘disease injury’; the existence of a ‘disease’, that the disease was contracted or aggravated, accelerated, exacerbated or deteriorated in the course of employment, and that employment was the main contributing factor to the contraction or aggravation, acceleration, exacerbation or deterioration (hereafter aggravation).
If those components are demonstrated on the evidence, the applicant will have established that he has suffered a ‘disease injury’ and is entitled to the workers compensation benefits that may flow.[13]
[13] Taylor v J & D Stephens Pty Ltd [2018] NSWCA 287.
‘Disease’ is a word of very wide import and includes any form of illness.[14]
[14] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
The applicant has had right shoulder disease since 1997 when he was employed as a lawnmower mechanic by Union Motors. Dr Kleinman in his report of 18 November 1997 describes full thickness tears in the rotator cuff of his right shoulder.
The disease was aggravated in 2016 while he was employed by the respondent. Extensive synovitis, supraspinatus tear and glenohumeral degeneration with synovitic biceps tendinopathy were findings made at surgery by Dr Petrelis on 4 May 2017.
There is no dispute on the medical evidence that the applicant has serious right shoulder rotator cuff disease.
I do not accept the respondent’s submission that the pleadings do not identify the real nature of the injury complained of. The ARD pleads a disease injury described as rotator cuff injury with complete tear of the supraspinatus which resulted in subluxation of the humeral head requiring reverse total shoulder replacement of the right shoulder as a result of protracted, repetitive, heavy work with the respondent.
The respondent in my view was able to adequately answer the claim made in the pleadings by seeking appropriate medical evidence if it chose to do so.
While the applicant relies on the matter being either a s 4(b)(i) or 4(b)(ii) claim, I agree with the applicant’s submission that the medical evidence suggests more strongly in this instance that it is an aggravation.
A disease injury contracted by a worker in the course of employment under s 4(b)(i) of the 1987 Act is a disease of gradual process. Under s 15(1)(b) of the 1987 Act compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due. The applicant would not be required to establish that the right shoulder disease was actually brought about or contributed to by his employment with the respondent, it is enough if the disease is incidental to that class of employment.[15]
[15] Crisp v Chapman (1994) 10 NSWCCR 492 at [494].
The evidence shows the applicant had contracted a right shoulder disease when he came to surgery with Dr Kleinman in 1997 while employed as a mower mechanic by Union Motors.
There is insufficient evidence available as to the nature of the work the applicant carried out prior to his employment with the respondent including as a fitter, mower mechanic, contract cleaner or fitter with Nareena Industries Pty Limited.
It is not possible to determine on the evidence in this case whether the entirety of the applicant’s employment is employment to the nature of which his disease was due, so that the respondent was the last employer in such employment under s 15(1)(b).
The respondent submits the alternatives are to consider the applicant’s employment with the respondent between 2007 and the 2023 deemed date of injury, or the period between 2017 and the 2023 deemed date of injury.
A consideration of the nature of the applicant’s work before November 2017 assists in the consideration of the nature of his work after November 2017. The evidence is that he continued to do heavy physical work without using a sledgehammer after November 2017 for the reasons below. There is no evidence of competing factors.
I find the employment following his surgery in 2017 was the main contributing factor to the aggravation of the applicant’s right shoulder disease and the employment with the respondent was a substantial contributing factor to the aggravation of the disease.
The aggravation of a disease occurs where “the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms.”[16]
[16] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 at [66]; Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
In Cant v Catholic Schools Office [2000] 2000 NSWCC 37 Burke J said:
“…irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”[17]
[17] Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 at [17].

The applicant’s evidence is that after the surgery in 2017 his right shoulder pain increased as a result of continuing to perform duties in the respondent’s employment after he returned to full time work on 22 November 2017.
The applicant’s evidence is supported by Dr Vijay’s record on 8 June 2023 that the applicant’s right shoulder pain started to come back about four or five years previously and had worsened since then.
Dr New describes the applicant as beginning to experience right shoulder pain in June 2022 due to the repetitive and heavy nature of his employment.
The respondent submits that the applicant made no complaints of right shoulder symptoms to Dr Innis between 2018 and 2023 and he was able to work without any trouble.
While no complaint may have been recorded by Dr Innis, I accept the evidence that the applicant’s symptoms were worsening during this period.
The applicant’s experience of his right shoulder disease was increased or intensified in this period by an increase or intensifying of his symptoms. The symptoms became more serious to him and required surgery.
I accept there was an aggravation of the applicant’s right shoulder disease that occurred in the course of the employment with the respondent after November 2017.

Main contributing factor

The applicant must establish the employment with the respondent was the main contributing factor to the aggravation of his right shoulder disease.
Dr New’s opinion is that the employment was the main contributing factor to the development and aggravation of the applicant’s right shoulder injury and subsequent disease process, which complicated the original injury, and there is no medical evidence to the contrary.
Dr New’s evidence is relevant and desirable, however the question of whether employment was the main contributing factor to the aggravation of the disease is determined on the totality of the evidence and involves an evaluative process.[18]
[18] AV v AW [2020] NSWWCCPD 9 at [78].
The applicant continued to be employed by the respondent as a full-time fitter after 22 November 2017 until the surgery was performed on 9 August 2023.
The applicant in his first statement describes the nature of his work while employed as a fitter with the respondent.
This involved heavy work that included dissembling, repairing, cleaning and reassembling cylinders. He performed highly physical work and he often performed hammering with a sledgehammer for up to four hours per day until November 2016.
His other duties included placing a cylinder in an upright stand to disassemble it, sometimes requiring him to use a shop-made spanner and pushing a pipe with both arms in a circular motion around a cylinder at waist and up to shoulder height, which placed significant strain on his right shoulder.
He removed rust proofing on cylinders using a pressure cleaner and a brush made from a rag on a pole. This task could take up to three hours depending on the size of the cylinders and how many there were to clean.
Dr Innis cleared him to return to work on full duties on 22 November 2017 although his duties were modified in that he did not have to use the sledgehammer.
The respondent submits and I accept that the applicant’s work was likely to have been heavier when he used the sledgehammer before he returned to work in 2017, however the evidence shows that the nature of his work otherwise remained heavy physical work.
The applicant’s evidence regarding the heavy nature of his work after 22 November 2017 is consistent with other evidence before the Commission.
Dr Croker reports on 9 April 2018 that he is happy to clear the applicant for whatever duties he is able to do within the realm of comfort and he should not have any restrictions working.
On 31 August 2018 Ryan Sorensen notes the applicant was lifting a heavy object at work and four days earlier he was dragging chains around on the floor.[19]
[19] ARD page 19.
In 2022 Dr Bodel comments that the applicant clearly identifies physical, strenuous, repetitive and forceful work in his trade as a maintenance fitter in the assembly of various pieces of machinery, cylinders and ramps and other similar devices, all heavy trade related work in the discipline that he has trained in.
Dr Vijay’s notes on 8 June 2023 include that the applicant had been doing pre-injury duties after 2017 and is having problems lifting heavy things above the shoulder.
The respondent submits that Dr New’s opinion is unhelpful as he does not explain what aspect of the applicant’s work caused the further incapacity and need for surgery.
Dr New describes the applicant as beginning to experience pain in his right shoulder in June 2022 due to the repetitive and heavy nature of his employment.
As Dr New details the history relating to the injury and the applicant’s employment history I do not accept that submission.
The respondent’s submission is that the main contributing factor to the applicant’s right shoulder disease are events that occurred before 2017, relying on the nature of his work.
I do not accept the submission made by the respondent that it was the applicant’s use of the sledgehammer before 2017 that led to the need for surgery at that time, and that nothing occurred after the applicant returned to work in November 2017.
I find the applicant’s employment with the respondent after he returned to full time duties as a fitter on 22 November 2017 without using the sledgehammer remained heavy physical work, and that work was the main contributing factor to the aggravation of his shoulder disease.
The respondent submits that the pathology described in the reports of Dr Kleinman and Dr Petrelis also support that there was no further aggravating events or injuries through the applicant’s work after November 2017, and a pre-existing condition is the main reason for his clinical difficulties.
The evidence, as the respondent submits, is that the complete tear of the supraspinatus was first identified by Dr Kleinman in 1997. Dr Petrelis was unable to repair the full thickness tear in May 2017.
The evidence suggests however that the right shoulder rotator cuff disease did not simply follow a natural progression of the supraspinatus tear after 2017.
The applicant was described as having full thickness tears in the rotator cuff of his right shoulder in Dr Kleinman’s report of 18 November 1997 and tear of the supraspinatus tendon with impingement on the right. On examination he had full movement of both shoulders.
The doctor’s operation report of 24 August 1998 refers to a full thickness rotator cuff tear with some degeneration on the superior surface of the supraspinatus tendon. There was extensive synovitis in the joint and the biceps tendon was intact, the surface of the glenoid and of the humeral head looked normal. The supraspinatus tendon had a 1.5 to 2cm tear.[20]
[20] ARD page 47.
Dr Petrelis refers to tendon changes in the supraspinatus insertion with a full thickness tear on 3 November 2014 and the Belmont Hospital Discharge Referral includes that on 4 May 2017 the applicant had a right shoulder arthroscopy, synovial debridement and biceps tenodesis due to a right supraspinatus tear.
Medical investigation reports in 2022 and 2023 show the applicant’s tear of the supraspinatus was complete however they also refer to biceps rupture and complete tear of the infraspinatus not revealed in the MRI report of 24 November 2016.
In my view the pathology does not support the submission that the main contributing factor to the right shoulder disease requiring surgery in 2023 was a pre-existing condition or due to events that occurred before 2017.
The respondent submits the applicant’s rheumatoid arthritis was a pre-existing condition and Dr Petrelis finds it challenging to treat his right shoulder injury as a result. There is no medical or other evidence suggesting rheumatoid arthritis was a contributing factor to the applicant’s right shoulder injury.
I do not accept the submission made by the respondent that the precarious state of the applicant’s shoulder was such that any activity, including activities around the house, could have caused the increase in symptoms as there is no evidence that supports that submission.
There is no evidence of any other competing work or non-work causal factors[21] and the only medical opinion before the Commission, that of Dr New, is that employment is the main contributing factor to the aggravation of the applicant’s right shoulder disease.
[21] AV v AW [2020] NSWWCCPD 9.
I find on the basis of the evidence that the applicant’s employment with the respondent was the main contributing factor to the aggravation of his right shoulder disease.

Employer by whom compensation is payable

Where there is an injury that consists of the aggravation of a disease under s 4(b)(ii) the deemed date of injury and the employer by whom compensation is payable is fixed by s 16 of the 1987 Act.[22]
[22] Crisp v Chapman (1994) 10 NSWCCR 492.
Section 16(1) states that if an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease the injury shall be deemed to have happened at the time of the worker’s incapacity, and compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
In this case the appropriate deemed date of injury is the date of the applicant’s incapacity on 9 August 2023.[23]
[23] Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 at [46].
There is no dispute the respondent was the applicant’s last employer on 9 August 2023.
The applicant must prove that the respondent is the employer who last employed him in employment that was a substantial contributing factor to the aggravation of his right shoulder disease.
An examination of the nature of the work performed by the applicant is required to determine whether it was capable of causing his right shoulder injury, that is whether the contribution of the employment is real and of substance.[24]
[24] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324.
I accept the applicant’s submission that the opinions of Dr Bodel and Dr Innis establish that not only is the work performed by him for the respondent capable of causing the injury, it did in fact do so by 2017. Dr New’s opinion is that the right shoulder pain in June 2022 was due to the repetitive and heavy nature of his employment.
I do not accept the respondent’s submission that it was working with the sledgehammer that caused the right shoulder condition requiring surgery in 2017. While the applicant’s duties after November 2017 did not involve using the sledgehammer his work remained heavy physical work as found above.
The evidence of the nature of the work performed by the applicant after November 2017 is outlined above. I have found the applicant’s work with the respondent after that time was the main contributing factor to the aggravation of his right shoulder injury.
I find on the basis of the evidence that the employment with the respondent was also a substantial contributing factor to the aggravation of the applicant’s right shoulder disease.
On consideration of the evidence overall and applying an evaluative process to consider causal factors, I am satisfied that the applicant’s right shoulder injury is a disease injury deemed to have happened on 9 August 2023, being an aggravation of his right shoulder disease process, and that compensation is payable by the respondent as the employer who last employed him in employment that was a substantial contributing factor the aggravation of the disease.

Is the applicant entitled to weekly payments between 9 August 2023 and 12 February 2024

Whether incapacity results from the aggravation of a disease is a question of fact to be determined on the basis of the evidence, including where applicable expert opinions.[25]
[25] Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 at [64.]
The Certificates of Capacity of 21 August 2023 and 7 September 2023 with AALD1 certify the applicant as having no current capacity for any work between 9 August 2023 and 9 October 2023.
Dr New’s opinion of 22 November 2023 is that at that stage the applicant was no longer medically capable of pursuing employment and should be medically retired.[26]
[26] ARD page 41.
The Return to Work Certificate of Dr Kuoi of 12 February 2024 certifies the applicant as fit to return to work and he has done so.
The parties indicate there is no dispute on the applicant’s capacity for work in the period claimed.
I find that the applicant had no current work capacity in the period 9 August 2023 to 12 February 2024.
PIAWE is agreed at the rate of $1,537.99.
There will be an order that the respondent pay weekly compensation to the applicant for the period 9 August 2023 to 12 February 2024 at the PIAWE rate of $1,537.99 subject to indexation pursuant to ss 36 and 37 of the 1987 Act.

Is the applicant entitled to payment of medical expenses as a result of the injury

Under s 60 of the 1987 Act if as a result of injury it is reasonably necessary that any medical or related treatment or hospital treatment be given, the worker’s employer is liable to pay for the cost of that treatment or service.
In Diab v NRMA Ltd [2014] NSWWCCPD 72 at [88] DP Roche set out what are described as “useful heads of consideration” in the context of the criteria of reasonableness:
“(a)    the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.”
Dr New is of the opinion that the treatment including the surgery of 9 August 2023 was reasonably necessary.
There is no evidence that the surgery of 9 August 2023 was not appropriate, not potentially effective, or not accepted by medical experts as such, or that the cost of the surgery is in issue.
The applicant must also establish that the injury materially contributed to the need for the treatment or surgery.[27]
[27] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
Dr New’s opinion is that the applicant’s employment has “materially contributed to the need for that medical treatment”.[28]
[28] ARD page 41.
On the basis of Dr New’s opinion and in the absence of any evidence to the contrary, there will be an order that the respondent is to pay the cost of reasonably necessary medical, hospital and related treatment provided to the applicant as a result of the right shoulder injury, including the cost of surgery of 9 August 2023, at the gazetted rates.

SUMMARY

The ARD is amended to include the deemed date of injury 9 August 2023.
The applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in his right shoulder in the course of his employment with the respondent with deemed date of injury 9 August 2023 pursuant to s 4(b)(ii) of the 1987 Act.
The applicant had no current work capacity in the period 9 August 2023 to 12 February 2024 and is entitled to weekly compensation for that period pursuant to ss 36 and 37 of the 1987 Act.
The respondent is to pay the applicant weekly compensation at the PIAWE rate of $1,537.99 subject to indexation as follows:
(a)    for the period 9 August 2023 to 30 September 2023 at $1,537.99 x 95%, being $1,461.09, pursuant to s 36(1) of the 1987 Act;
(b)    for the period 1 October 2023 to 8 November 2023 at $1,537.99 x 1.0237, or $1,574.44 rounded to $1,570.00 x 95%, being $1,491.50, pursuant to s 36(1) of the 1987 Act, and
(c)    for the period 9 November 2023 to 12 February 2024 at $1,574.44 rounded to $1,570.00 x 80%, being $1,256.00 pursuant to s 37(1) of the 1987 Act.
The parties have 14 days liberty to apply with respect to the calculation of indexation of the weekly compensation amount referred to above.
The applicant is entitled to payment of reasonably necessary medical, hospital and related expenses arising from the right shoulder injury with a deemed date of injury of 9 August 2023 including the cost of surgery on 9 August 2023 pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 665

3 December 2024 14 February 2025