Setia v Aldi Stores

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Setia v Aldi Stores [2025] NSWPIC 133
APPLICANT:	Vikas Setia
RESPONDENT:	Aldi Stores
MEMBER:	John Wynyard
DATE OF DECISION:	8 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to right shoulder (admitted) and consequential condition in left shoulder (denied); whether assumptions made by claimant’s treating surgeon and medical expert were supported by evidence; Held – fair climate for assumptions found in several areas of the evidence; BFZ v Inner West Council considered and applied.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant suffered a consequential condition in his left shoulder after sustaining a right shoulder injury on 8 November 2017. The Commission orders: 1 The claim regarding the cervical spine is discontinued. 2. I remit this matter to the President for referral to a Medical Assessor for an assessment of permanent impairment on the following bases: Date of injury: 8 November 2017. Matters for assessment: right upper extremity (shoulder), and left upper extremity (shoulder, consequential). Evidence: Application to Resolve a Dispute and attached documents, and Reply and attached documents. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Vikas Setia, the applicant brings an action against Aldi Stores for lump sum benefits in respect of alleged injury to the right shoulder and consequential condition to the left shoulder. A further claim for injury to the cervical spine was discontinued at the outset of the case.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did the applicant suffer a consequential condition to his left shoulder?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard on 5 March 2025 in the Personal Injury Commission’s (Commission) premises. The applicant was represented by Mr Greg Young of counsel, instructed by
Ms Carly Norton of Law Partners. The respondent was represented by Mr Paul Stockley instructed by Mr Stephen Lee with Ms Sevastelis of Lee Legal Group. Ms Tina Banasiak appeared on Teams for the insurer. Mr Sulaiman Siddiqui appeared on Teams as an interpreter during the conciliation phase. Mr Setia’s wife was available to interpret during the hearing.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD), and
(b) Reply and attached documents.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

As noted above, Mr Young discontinued the claim regarding the cervical spine at the outset of the case. The claim for lump sum compensation in relation to the right shoulder has been accepted by the insurer – with the caveat that it had resolved – and the remaining issue relates to the allegation that the left shoulder condition is consequential to the right shoulder injury.

Evidence

The applicant made two statements that were before the Commission. During discussion it appeared that there had been an earlier statement which was produced by Mr Setia, and it was emailed during the hearing to the respondent. It was not relied on by either party.

Statements

Mr Setia relied on statements dated 5 November 2023 and 16 December 2024 respectively. On 5 November 2023 he said:^[1]
“12. On 8 November 2017, whilst in the course of my duties, I sustained an injury to my right shoulder. Following this injury, I became over reliant on my left shoulder and as a result, I developed a consequential condition to my left shoulder. At the time of the injury, I also felt pain to my neck. However, as the pain to my right shoulder was very severe, I mainly focused on this pain and I also was not sure whether the pain to my neck and right shoulder was related and hence why I thought all of my pain was coming from my right shoulder. Further, as a result, my mental state started to deteriorate. The details of my injuries, symptoms and resulting treatment are detailed below.”
[1] ARD page 2.
Mr Setia was employed part-time for 40 hours to fortnight prior to his injury. He said: [2]
“13. Prior to my work injury on 8 November 2017, I started to experience right shoulder pain as a result of the nature of my employment. I would be required to consistently lift boxes onto the pallet which I estimate weighed around 13-15kgs. These boxes would contain a range of things such as but not limited to produce, frozen vegetables and utensils. We would then be required to wrap the pallets. My role was quite heavy and repetitive. A few months prior to my injury on 8 November 2017, I started to feel pain to my right shoulder but I decided to take Panadol and hoped that the pain would pass
…
22. Despite working suitable duties, I experienced ongoing pain in my right shoulder and some pain to my neck which I managed with pain medication. During this time, I relied heavily on my left shoulder to carry out work tasks such as reaching, lifting and carrying and using my left arm/left hand to clean, in order to provide temporary relief to my right shoulder and neck and not worsen the pain I was feeling to my right shoulder. Overtime, I noticed that I was starting to experience pain to my left shoulder. I also noticed that overtime the pain to my neck was slowly increasing. As stated above, my right shoulder was causing more pain so I predominantly informed my doctors of the pain to my right shoulder. I also was not sure, at the time, whether the pain to my neck was as a result of my shoulder injuries or I was feeling pain to my neck separately from my shoulders.”
[2] ARD page 4.
In his second statement of 16 December 2024, Mr Setia said:[3]
“9.     As mentioned in my previous statement on 8 November 2017, whilst in the course of my duties, I sustained an injury to my right shoulder. Following this injury, I became over reliant on my left shoulder and as a result, I developed a consequential condition to my left shoulder. At the time of the injury, I also felt pain to my neck. However, as the pain to my right shoulder was very severe, I mainly focused on this pain and I also was not sure whether the pain to my neck and right (sic) shoulder was so severe I mainly focused on this pain and I also was not sure whether the pain to my neck and right shoulder was related and hence why I thought all of my pain was coming from my right shoulder. Further, as a result, my mental state started to deteriorate.
…
11.    Between 8 November 2017 to 4 November 2021, I was forced to rely heavily on my left arm to alleviate pain and pressure off my right shoulder. My right shoulder symptoms were unbearable, and I struggled completing daily activities such as dressing myself. I had to start sleeping on my left]-hand side due to the severe pain in my right shoulder. Whilst this initially alleviated the pain I was in, overtime my right shoulder began to slouch forward and put additional pressure on my neck and both shoulders causing more pain.
12.    Due to the pain in both my shoulders I began to have a slouched posture, and my shoulder began to roll forward which as a result contributed to the worsening of my symptoms in both my shoulders and neck.”
[3] ARD page 12.
On 18 December 2024, Sav Setia, Mr Setia’s wife, made a statement.[4] She described how Mr Setia came home from work on 8 November 2017 and described his injury to the right shoulder. She recounted at [8], the problems he described about the approach of his colleagues who belittled him, undermined him and dismissed his injury.
[4] ARD page 17.
She said that Mr Setia originally complained of pain in the neck but as the shoulder pain was so severe it masked the neck pain. It was difficult for her husband to express the full extent of his injuries because of his focus on the shoulder pain.
Mrs Setia said that she felt it was difficult to differentiate where exactly the pain was because the right neck and the right shoulder were so close to each other. She said that after the surgery in November 2021 the neck pain increased and Mr Setia complained of “intolerable flare-ups in pain which would leave him unable to move his neck”.[5] She said:
“14. Since my husband’s injury to his right shoulder, he has not been able to use his right arm as much as before, which has led to an overreliance on his left shoulder.
15 This means that he places a lot of emphasis on his left shoulder and arm to complete tasks when no one is home to assist him, including lifting items, carrying groceries, vacuuming, and any household tasks. Accordingly, he struggles to complete any of the domestic duties he was doing before the incident.”
[5] ARD page 17 at [13].
These limitations, Mrs Setia said, placed a significant burden on her son and she, as they had to undertake all the household duties.
When Mr Setia struggled to carry out such tasks independently, he complained of, “feeling inadequate and low in self-esteem”, she said at [16].

MEDICAL

Clinical notes

The clinical notes from general practitioner (GP) Dr Chandra were dated from
[6] ARD page 346.
[7] ARD page 347.
18 September 2018.[6] Dr Chandra noted the history of right shoulder complaints and that pathology had been detected. Dr Chandra noted on 28 September 2018 that Mr Setia’s “current role” was handling cold food, opening full pallets at 400 a day, unwrapping the same number of pallets and “cutting mostly with rt hand".[7]
A further case conference was recorded on 9 October 2018 in which the options of a rotating roster were included as “issues”. On 15 October 2018 Dr Chandra noted that Mr Setia had been seen by psychiatrist Dr Singh. Mr Setia had been “initially coping well at work adjusting to the rotation duties given” but “two months ago patient complained was been picked of at work developing low self esteem…” Mr Setia had “been sent home from work inconsistently for the last two months.” Rotation of duties was again mentioned by Dr Chandra on
16 October 2018 saying “awaiting change of duties/rotation of duties”.
Further case conference on 1 November 2018 again recorded “yet to allocate …. rotating in [roster]”.
On 12 November 2018 the entry included “Rt shoulder …. Same, on same job, having...rehab...tried 12kg...had...pain...now...having...old...duties.”
On 23 November 2018 Dr Chandra noted “now…..rotating job,” and that Mr Setia was “coping better”. The shoulder was “same”.
An entry of 18 October 2019 noted that Mr Setia had been to a psychologist and that the diagnosis given was “adjustment disorder with mixed anxiety and depressed mood”.[8]
[8] ARD page 367.
The continuing entries noted pain with some occasional clicking noise in the right shoulder until 21 October 2019 Dr Chandra reported that Mr Setia was complaining of “bilt” shoulder pain, i.e. bilateral shoulder pain. The note read further: “- concerned, reg, not better with shoulder ‘cliks’, and recurrence of both shoulder pain”.
On 25 October 2019 the entry by Dr Chandra included:
“Still concerned regarding ongoing pain in both right and left shoulders ongoing clicking."
On 15 November 2019 Dr Chandra noted anxiety symptoms including allegations of bullying by the case manager who intimidated Mr Setia. The complaints noted on that occasion were:
“...ongoing pain, rt shoulder, shoulder clicks, teary upset at consult.
Feels fed up with pain and low mood”
There was further reference to both shoulders being complained of on 28 November 2019, and entries of depression noting Mr Setia was seeing a psychologist.
On 3 January 2020 Mr Setia was complaining of both shoulders giving pain of varying intensity.
On 7 January 2020 an entry showed that Mr Setia a was going to India where his mother was ill and that he returned during the week of 17 March 2020.
On 26 March 2020 Dr Chandra noted that Mr Setia was home from his recent travel and that he complained of “ongoing left shoulder pain”.

Dr Sam Perla, injury management consultant

Dr Perla was retained by the insurer to provide a report for injury management purposes regarding the right shoulder. On 26 April 2018 he took a history that was consistent with the injury to the right shoulder and did not record any complaints about the left shoulder.
Dr Perla examined the left shoulder and reported:[9]
“I note a full normal active range of movement with negative impingement and normal power.”
[9] ARD page 308.

John Breckenridge, physiotherapist

On 14 June 2019 Mr Breckenridge reported to Dr Seamus Dalton, noting that Mr Setia had been referred by Dr Dalton for physiotherapy management of the right shoulder:[10]
“[Mr. Setia] reports that his pain is worse with some tasks at work, especially when he is flexing his shoulder to a high position whilst using a knife to cut the plastic covering on pallets, especially doing this repeatedly. [He] reports that when his work has been modified to reduce or eliminate these higher ranged his pain is substantially better and he had modified activities at home in a similar manner…”
[10] ARD page 109.
Mr Breckenridge noted further:[11]
“With regards to Vikas’s work, Vikas reports that his symptoms begin to settle when he is not doing repetitive overhead reach and slicing type actions, he reported to me that recently he was on a rotation roster and that this was comfortable for him and did not irritate his shoulder. More recently he has been doing tasks that aggravate his symptoms, it is quite obvious that if the workplace continues to provide him with inappropriate tasks he will not improve. I would therefore ask that his workplace provide him with suitable duties that do not aggravate his symptoms until we can improve his control, stability and strength.”
[11] ARD page 110.

Dr Seamus Dalton, rehabilitation specialist

Dr Seamus Dalton, specialist in rehabilitation medicine reported to Dr Chandra on
5 August 2019 and then again on 25 September 2019.
In his first report, Dr Dalton noted on examination that in the right shoulder there was a “mild, click and painful arc in abduction”.[12] He noted that Mr Setia was seeing John Breckenridge, twice a week.
[12] ARD page 45.
Dr Dalton reported on a consultation on that day. He said:[13]
“What started out as a review of his shoulder ended up being a very lengthy session and Case Conference. His wife was present and I ended up almost having a counselling session to try and address some of the complex psychological and psychosocial issues which exist in this case."
[13] ARD page 81.
Dr Dalton noted that Mr Setia was still very focused on the fact that he still had “pain and clicking”.
Dr Dalton noted:
“At work he is still not able to do any picking duties, but he is working full-time and never misses a shift and I gather his employer is happy to keep him on his current modified duties, which I would suggest is the way to go…."
On 14 June 2019 Mr Breckenridge reported to Dr Dalton noting complaints in the right shoulder which had been gradually worsening since November 2017.

Dr Manish Gupta, orthopaedic surgeon

Dr Gupta was Mr Setia’s treating surgeon, who reported on 26 April 2021,[14] and his clinical notes were also lodged.[15] He first consulted with Mr Setia on 17 July 2018 concerning the right shoulder and had further consultations regarding the right shoulder on
29 November 2018 and 7 March 2019. On 7 March 2019 Dr Gupta said:
“…Whilst [Mr Setia] continued to experience symptoms, and these were worse with heavy exercise and work, there continued to be no surgical pathology that I found appropriate to operate on at that time…”
[14] ARD page 49.
[15] ARD page 112.
At the next review in November 2019 Dr Gupta noted that Mr Setia “continued to have progressive right shoulder pain and now compensatory pain in the left shoulder”.[16] Dr Gupta organised MRI scans of both shoulders and reported that the scans showed that both shoulders were starting to show “..pathology being high grade partial rotator cuff tendon tears”. Dr Gupta was not able to inform Mr Setia of that result until July 2020 as liability was declined in the meantime. Dr Gupta advised that in the right shoulder the previous tendinopathy had progressed to partial thickness tendon tearing and that surgery was now indicated. Dr Gupta placed Mr Setia on the public waiting list, and surgery had not then been undertaken.
[16] ARD page 49.
Dr Gupta said further:^[17]
“Essentially, the diagnosis to both shoulders is initially for the right shoulder a specific lifting incident in November 2017, which provoked the onset of rotator cuff tendinopathy, which failed to respond to the appropriate rehabilitation and restricted work, and has now developed into rotator cuff tendon tearing. Because of ongoing issues with the right shoulder, there was consequential left shoulder overuse, which is now limited to also left shoulder rotator cuff tendon tearing. I do feel that in the presence of a painful and symptomatic right shoulder that the left shoulder is a consequential and secondary injury …”
[17] ARD page 50.
Dr Gupta said:
“I note the report of Dr Wallace, which was undertaken in November 2019 suggesting that the problem had resolved but clearly we are in a situation where the patient subsequently saw me in January 2020, in July 2020 with persisting problems in both shoulders and MRI scans performed in November 2019 which showed progression of rotator cuff tendon tearing, in other words, there is objective evidence that the problem has not resolved.”

Radiology

The above-mentioned MRI scans were also lodged. They were in fact taken in December 2019. For the right shoulder, taken on 23 December 2019 the radiologist said:[18]
“CONCLUSION
1.     High-grade partial thickness insertional bursal said supraspinatus tear 5mm mediolateral x 5mm anteroposterior with minor associated reactive bony oedema. No muscle belly atrophy.
2.     High-grade insertional partial thickness deep subscapularis team10mm superoinferior x 4mm mediolateral. High-grade subscapularis with associated reactive bony oedema. No muscle atrophy.
3.     Small 5mm insertional infraspinatus tear.”
[18] ARD page 57.
The conclusion for the left shoulder MRI, taken on 24 December 2019, was:[19]
1.      High-grade insertional bursal side partial thickness mid supraspinatus tear measuring 6mm mediolateral x 6mm anteroposterior with minor underlying reactive bony oedema and subchondral cystic change. Marked tendinosis posteriorly. Minor articular side partial thickness tears anterior!y.
2.      Subacromial bursitis.
3.      Biceps labral complex rear extending posteriorly and inferiorly, and paralabral cysts.”

[19] ARD page 60-61.

Dr Sheikh Habib, orthopaedic surgeon

Dr Habib reported on 17 January 2023 as Mr Setia’s medico-legal expert.[20] Dr Habib set out the documentation that had been forwarded to him, amongst which was a report from
[20] ARD page 35.
Dr Raymond Wallace, orthopaedic surgeon, dated 26 November 2019.
Dr Habib reported on 17 January 2023 that Mr Setia had migrated from India in 2009 and had indeed been working for the respondent since that time. The work was as a pick-packer, mainly in the chiller section and at times in the freezer section.
Dr Habib took a consistent history of the injury to the right shoulder and he said that on
7 March 2019 Mr Setia was reviewed further by Dr Gupta who advised the continuation of exercise physiology and physiotherapy.
Dr Habib said:[21]
“Mr Setia stated that while protecting his painful right shoulder and favouring the left arm/shoulder for most work and daily activities his left shoulder had become painful from overuse. He reported this to Dr Gupta...on 28/11/2019.”
[21] ARD page 36.

Dr Habib reported that a fresh MRI of the right shoulder and a diagnostic MRI of the left shoulder was requested. Mr Setia then came to surgery with Dr Gupta on 4 November 2021.
After the surgery Dr Habib reported that Mr Setia continued to experience considerable pain in the right shoulder which extended to the right side of the neck. Cervical spine MRI scanning was then undertaken.
Dr Habib noted that amongst the current complaints were right shoulder pain with restricted mobility and left shoulder pain with “painful restrictions of movements”.
Dr Habib set out the investigations, which included ultrasounds and MRI of the right shoulder in 2018 and the above MRI scans of the right shoulder on 23 December 2019 and left shoulder on 24 December 2019. He also set out a further MRI study dated
27 February 2022, which concluded:
“CONCLUSION: Infraspinatus tendinopathy with an intrasubstance tear.
Measuring 4mm TR and 3.5mm AP.
Subscapularis tendinopathy with intrasubstance tear measuring 3 x 3mm.
Posterosuperior labral tear from the 1-3 o'clock position.
Pericapsular oedema with rotator interval synovitis and superimposed adhesive capsulitis.”
Dr Habib's diagnosis was:
“2. Diagnosis:
i. Traumatic rotator cuff tendonopathy, SLAP tear right shoulder, post operative shoulder
ii. Stiffness / adhesive capsulitis. Cervical discopathy with referred pain in the
right shoulder
Consequential conditions / injuries:
i.Rotator cuff tendonopathy with tear and subacromial impingement left shoulder from overuse, protecting the injured right shoulder”

Dr Raymond Wallace, orthopaedic surgeon

Dr Wallace was retained by the respondent as its medico-legal expert. Dr Wallace first reported on 26 November 2019.[22]
[22] Reply page 15.
Dr Wallace took a history of the onset of pain in the anterior aspect of the right shoulder on
8 November 2017. He noted treatment by Dr Chandra, Dr Gupta and Dr Dalton.
Dr Wallace noted that following his injury in November 2017, Mr Setia had no time off work but continued doing part-time light duties until the end of October 2019, since when he had remained off work for the three weeks prior to the consultation.
On examination, Dr Wallace noted that Mr Setia was “teary throughout the consultation. He had a head-poked forward posture."
Dr Wallace noted the investigations available to him, which consisted only of the ultrasound of the right shoulder dated 4 December 2018, which showed “some minor rotator cuff tendinopathy with minor intra-substance tearing involving the subscapularis.” Dr Wallace also noted that the ultrasound also showed some “low-grade biceps tenosynovitis” and “mild acromio-clavicular joint osteoarthritis.”
Dr Wallace's diagnosis was that there had been a “minor rotator cuff strain” in the right shoulder, which had “now resolved”. There has also been an aggravation of pre-existing minor rotator cup tendinopathy which had also “now resolved”.
With regard to Mr Setia’s left shoulder, Dr Wallace said:[23]
“[Mr Setia] subsequently noted the onset [of] left shoulder pain but cannot remember when these symptoms commenced. He was prescribed anti-inflammatory medication for his left shoulder condition.”
[23] Reply page 16.
Dr Wallace noted complaints of constant aching pain at the superior border of the left trapezius muscle and the medial epicondyle of the left elbow together with the ulnar aspect of the right arm. “There were complaints of weakness in the left arm”.
When asked whether he believed the right shoulder condition remained, Dr Wallace replied the right shoulder injury had resolved. He said, "...[Mr Setia] suffered a minor rotator cuff strain at the right shoulder and aggravation of pre-existing minor rotator cuff tendinopathy at the joint which would have settled within a month of this incident."
Dr Wallace noted that Mr Setia had been off work for the three weeks prior to the consultation. He said that there was no evidence of traumatic pathology in the right shoulder and that employment with the respondent is not a substantial contributing factor.
With regard to the left shoulder, Dr Wallace said:[24]
“There is no objective medical evidence that Mr Setia has suffered any work related injury at his left shoulder.
He does not recall the time of onset of left shoulder symptoms but post-Injury in November 2017, he continued work only at part-time light duties.
There Is no medical evidence for an overcompensation Injury at the left shoulder according to American Medical Association Guides to Causation Edition 2.
Mr Selia's left shoulder condition is unrelated to his employment with Aldi Pty Ltd.
His employment with Aldi Pty Ltd is not a substantial contributing factor to any current left shoulder condition.”
[24] Reply page 21.
In answering a question whether Dr Wallace suspected an element of exaggeration in
Mr Setia’s presentation Dr Wallace said:[25]
“Mr Selia exhibited significant pain behaviour at the time of review on 19 November 2019. He was teary throughout the interview. He made poor effort on range of movement testing, particularly strength testing and complained of hypersensitivity to light palpation.
I do not accept that Mr Setia's current alleged complaints are entirely genuine.”
[25] Reply page 22.
On 15 July 2021 Dr Wallace reported again.[26] He noted that Mr Setia had since undergone an MRI scan of the right shoulder on “24 December 2019”, which he was asked to comment on. He noted the pathology demonstrated thereby, and said that it was “consistent with age-related degenerative rotator cuff tendinopathy...”[27] Dr Wallace noted that Mr Setia was now some three and a half years post injury, and that he had not worked for the past 18 months. Dr Wallace confirmed his opinion that the work-related right shoulder injury had resolved.
[26] Reply page 24.
[27] Reply page 25.
Dr Wallace’s third report was dated 23 May 2023.[28] Dr Wallace noted that Mr Setia had subsequently been admitted to hospital with Dr Gupta for arthroscopic surgery. He noted the date as being “May 2022”, but Dr Habib stated that it was 4 November 2021, as noted above. Dr Wallace said:[29]
“[Mr Setia] subsequently noted the onset of pain at his neck and left shoulder…”
[28] Reply page 28.
[29] Reply page 31
Dr Wallace again noted the ultrasound of 15 November 2017 and MRI investigation of the right shoulder dated “24 December 2019.” Dr Wallace noted the pathology that was shown in that MRI scan. It is not clear whether the MRI of the left shoulder of 23 December 2019 was before him, as he simply acknowledged “the forwarded documentation which has been duly read and noted.”[30] For the same reason it is not clear whether the MRI scan of the right shoulder of 27 February 2022 was amongst that documentation.
[30] Reply page 28
Dr Wallace recorded later in his report that Mr Setia noted the onset of pain at both the cervical spine and the left shoulder “but does not recall when these symptoms commenced”.
Dr Wallace noted that Mr Setia was complaining of “constant aching pain in the cervical spine region from C6-7 spinous process radiating to the anterior aspect of the left shoulder and globally about the right shoulder”. Any range of movement made the pain worse,
[31] Reply page 29.
Dr Wallace noted.[31]
Dr Wallace repeated his diagnosis from his earlier reports.
As to causation, Dr Wallace noted that there was no objective medical evidence of any injury to the left shoulder. Mr Setia's current complaints of widespread cervical, spine and bilateral shoulder pain could not be explained on the basis of any known organic pathology,
Dr Wallace said.
Dr Wallace again expressed the view that the right shoulder injury had long since resolved. The following appeared at reply page 32:
“5. Would doctor please obtain a history in relation to the alleged consequential condition to the left shoulder (if any) resulting from the right shoulder condition.
Mr Setia does not recall the time of onset of his left shoulder symptoms. There is no objective evidence that Mr Setia has suffered any work related injury to his left shoulder.
His current complaints of ongoing cervical spine or bilateral shoulder pain cannot be explained on the basis of any known organic pathology.”
Dr Wallace stated that the presentation by Mr Setia on 17 May 2023 “was entirely inconsistent with any known organic pathology." Dr Wallace then noted that investigations had been taken with regard to the cervical spine and the left shoulder, but were “unavailable at the time of review on 17 May 2023”.[32]
[32]Reply page 33.

ALDI suitable duties plan

Mr Setia also lodged a “Suitable Duties Plan” which commenced on 2 December 2017.[33] The plan set out a comprehensive list of duties that were available to be allocated as light duties. These were said to involve mostly up to 5kg of force with occasional 10kg needed to move objects.
[33] ARD page 175.
It was agreed that Mr Setia's duties would include a large range of jobs from inventory stock take/stock allocation, meat and milk, order picking, forklift operating, manual, pallet jack operating, checking, cleaning and other duties all of which were described as having a lifting average of 5kg (some of them describing lifting requirements less than that).

Dispute notices

A s 78 notice dated 14 June 2022 was issued which relevantly denied liability for a left shoulder injury as, it alleged, there was no evidence to support it.
On 10 July 2023 a further s 78 notice issued which denied liability for injury to both shoulders, relying on the reports of Dr Wallace.

Submissions

Mr Young relied on the opinion of Dr Habib, who had taken a history consistent with that of Mr Setia, and had available the clinical notes of Dr Gupta and the report of Dr Wallace of
26 November 2019. Mr Young noted Dr Wallace's opinion that the right shoulder injury had resolved. Obviously, Mr Young said, if that were the case, then there would have been no need for Mr Setia to overuse his left shoulder.
Dr Wallace was unaware, Mr Young submitted, that treatment and investigations had continued after that date and that indeed Mr Setia subsequently underwent surgery by way of arthroscopy with Dr Gupta on 4 November 2021, after further MRI investigations had been obtained.
Mr Young referred to the report of Dr Habib, who recorded the subsequent treatment and conducted a thorough examination of both shoulders. Dr Habib also had regard to the MRI scans of December 2019 and the right shoulder in 2022.
The right shoulder continued to be symptomatic following the arthroscopy of 2021, which,
Mr Young said, demonstrated pathology which remained evident in the MRI of
27 February 2022.
Dr Gupta confirmed that the focus shifted from the progressive right shoulder symptoms throughout 2018 to the left shoulder at the end of 2019, when he caused both shoulders to be scanned by MRI. His opinion was that the lifting incident of 8 November 2017 caused a right rotator cuff tendinopathy which failed to respond to rehabilitation and developed to right rotator cuff tearing, which in turn led to consequential left shoulder overuse which involved rotator cuff tearing also. Mr Young adopted Dr Gupta’s criticism of Dr Wallace’s opinion that there was consequently objective evidence that Mr Setia’s right shoulder had not resolved on 26 November 2019, as Dr Wallace had advised. Mr Young referred to Dr Habib’s description of the pathology described in the MRI scans of 27 February 2022. It demonstrated that the arthroscopic procedure did not repair the tear in the right shoulder, and it was a scan which Dr Wallace did not see.
It followed, Mr Young submitted, that an overuse syndrome could certainly have developed as a result of the continuing difficulties with the right shoulder.
Mr Young noted that the first clinical note of involvement in the left shoulder to Dr Chandra appeared to be that of 21 October 2019.
With regard to the report of Dr Wallace of 26 November 2019, Mr Young noted that the complaints about the left shoulder had been noted and he submitted that Dr Wallace's finding that the right shoulder condition had resolved was not explained. Dr Wallace's repeated comments that Mr Setia could not identify the time of the onset of the left shoulder symptoms were not relevant, Mr Young said, because the case was a consequential case and injury to the left shoulder was not being alleged. Dr Wallace’s reference to the AMA Guides to Causation 2^nd edition could be disregarded, as it proposed a causation test that was not applicable in the Commission, Mr Young submitted.
Mr Young then considered Dr Wallace’s report of 17 July 2021. Mr Young submitted that, notwithstanding that the 24 December 2019 MRI was before Dr Wallace, he remained of the view that the injury would have settled within a month. He advised that the deterioration in the shoulder was due to age-related degenerative rotator cuff tendinopathy, which was unrelated. Mr Young submitted that in the light of Dr Wallace’s finding that employment had aggravated that same pathology, Dr Wallace's opinion infringed the Makita principles and was accordingly of little assistance.
As to Dr Wallace's third report of 23 May 2023, Mr Young submitted that Dr Wallace was not aware of the continuing treatment and investigations since the arthroscopy.
He did not have access to the July 2022 MRI scan which showed that, contrary to
Dr Wallace's opinion, the condition had not resolved. The pathology demonstrated in the MRI scan was sufficient to give a pathological basis for the continuing complaints, and
Dr Wallace’s being unaware of the existence of that scan constituted an important failure,
Mr Young said. It explained that there had been continual use of an injured right shoulder which had led to the overuse of the left shoulder to compensate.
Moreover, Mr Young said, Dr Wallace also did not know about the left shoulder MRI scan of 23 December 2019 and this was critical, Mr Young said. Dr Wallace conceded he had no investigation results available regarding the left shoulder, and that may well have influenced his earlier finding that there was no objective evidence regarding the left shoulder complaints. Dr Habib, on the other hand, had seen and commented on it.
Mr Young submitted that Dr Wallace had applied the wrong test in discussing whether employment had been a substantial contributing factor as the claim for the left shoulder was consequential. He also submitted that, for the same reason, the question of when the symptoms commenced in the left shoulder was not determinative.

Respondent’s submissions

Mr Stockley submitted that Dr Wallace's opinion was not an important part of his case.
Mr Setia had degenerative changes in both shoulders and tendinopathy was a progressive condition.
Dr Wallace said that the aggravation had ceased for the reasons he gave and that opinion was a matter for the Commission to decide.
Mr Stockley also submitted that the radiology was not crucial. What was crucial was as to any contribution from the light duties that Mr Setia had been given. Dr Wallace said it was negligible in the right shoulder long term.
Mr Stockley submitted that whilst a causation argument of overuse had a superficial attraction from a lay position, the essential question was as to whether Mr Setia had established that the basis for the assumptions made by his experts.
Mr Stockley submitted that Dr Gupta said that the tendinopathy was progressive so that diagnosis was not of itself of any weight. Dr Wallace said it was an underlying degenerative condition. Mr Stockley submitted that there was a lacuna in the evidence as to what the duties actually were that had caused the alleged overcompensation.
He submitted that paragraph 11 of the first statement was simply a catalogue of duties that were involved in Mr Setia's employment, and paragraph 13 really constituted the high point of Mr Setia's evidence. There he stated that he started to experience right shoulder pain as a result of constantly lifting boxes onto the pallet which he estimated weighed 13-15kg. These boxes contained a variety of things including utensils and the role was said to be heavy and repetitive.
That description Mr Stockley compared to the post injury tasks which were alleged to have led to the overuse syndrome, which post injury tasks Mr Stockley observed were performed between November 2017 and 2020.
Mr Stockley referred to the list of duties described in the Aldi document, and he referred to
Dr Dalton's report of 5 August 2019, which spoke of Mr Setia’s duties not being rotated one day at work which caused his pain to flare up, but which then settled down.
In his report of 25 September 2019 Dr Dalton gave a further description which noted that whilst Mr Setia was not able to do any picking duties, he was working full-time and had never missed a shift.
Mr Stockley noted the description also given by Mr Breckenridge on 14 June 2019 at a time before there were any complaints about the left shoulder. This described pain in the right shoulder whilst Mr Setia was flexing it to a higher position to use a knife to cut the plastic covering off pallets repeatedly.
There was at that time no record of any complaint about the left shoulder, so the question arose, Mr Stockley submitted, as to what Mr Setia had been doing with his right shoulder that eventually involved the use of the left shoulder.
The assumption was that the duties being performed with the right shoulder were sufficient to require Mr Setia to use his left shoulder because the right shoulder was over used, but the nature of those duties had not been made known.
There was no analysis by the expert witnesses as to what the overuse was. Neither Dr Gupta nor Dr Habib were able to assist as to this forensic difficulty, Mr Stockley said.
Mr Stockley referred to the comments by Dr Gupta, who had acknowledged on examination that Mr Setia had a complex problem which involved more than the MRI scan in identifying the pathology.
Dr Dalton also noted that the onset of the left shoulder complaints coincided with a florid psychological presentation to the GP. Mr Stockley referred to the contemporaneous notes of the GP on 15 October 2019 and the onset of the involvement of psychological problems which included a referral to psychiatrist Dr Singh.
Mr Stockley also noted that a lot of the complaints also involved a neck injury which although initially claimed, had been discontinued. Those symptoms have been identified at the same time as the problem in the left shoulder Mr Stockley said.
Mr Stockley submitted that the question of when the onset of the left shoulder symptoms occurred was relevant. He referred to the report of Dr Perla of 26 April 2018, who recommended suitable duties that did not entail lifting, pulling or pushing weights over 5kg. Mr Stockley said it was still incumbent on the applicant to prove when the left shoulder symptoms commenced, and to explain why they did not commence for some two years.
Dr Dalton also expressed some concern about Mr Setia’s presentation on 25 September 2019, Mr Stockley noted. Mr Stockley submitted therefore that the nexus was not established between the duties being performed and the onset of the left shoulder symptoms, as there was no evidence of the type of overuse on which the assumptions made by Dr Habib and Dr Gupta had been based. It was incumbent on the applicant to give a detailed description to explain how his light duty work had led to an overuse syndrome. The fragments of evidence that existed in the contemporaneous reports only suggested the opposite, Mr Stockley said.

Mr Young in reply

Mr Young referred to the detail given in Mr Setia's statement at [22], which demonstrated how Mr Setia came to rely on his left shoulder. Whilst Mr Young noted Mr Stockley’s submissions as to the lack of detail about Mr Setia’s limitations, he referred to the statement of Sav, Mr Setia’s wife, who amply corroborated Mr Setia’s complaints.
Mr Young also submitted that whilst Dr Habib did not give a great amount of detail regarding the left arm use, the generality of the history he took was supported by Mrs Setia's statement.

Discussion

The issue raised by the respondent can be summarised as to whether the assumptions made by Mr Setia’s experts have been proved sufficiently to enable their opinions to be accepted.
Mr Stockley largely eschewed reliance on the reports of Dr Wallace, except to the extent that Dr Wallace found as a generality that Mr Setia had worked doing light duties from November 2017 to October 2019, and that the condition in his right arm was partly age-related.
Mr Stockley submitted that the light duties continued until 2020, but the consensus seems to be that Mr Setia has been totally incapacitated since October 2019.
Dr Wallace’s opinion that the right shoulder injury had resolved when he first assessed
Mr Setia in November 2019 can be discarded. Dr Wallace was not aware in his later report of 23 May 2023 of the subsequent MRI investigation of the right shoulder on 27 February 2022, and indeed only became appraised of the right shoulder surgery, which occurred on
[34] In fact, it was taken the day before, see ARD page 57.
4 November 2021, in that same report of 23 May 2023 – erroneously stating that it occurred in “May 2022.” In his report of 15 July 2021 he commented on the MRI scan of the right shoulder, erroneously stated to have been taken on “24 December 2019.”[34]
Nonetheless, Mr Stockley argued that the condition identified in the right shoulder was a “progressive” degenerative condition, relying on Dr Gupta. However, Dr Gupta said:[35]
““Essentially, the diagnosis to both shoulders is initially for the right shoulder a specific lifting incident in November 2017, which provoked the onset of rotator cuff tendinopathy, which failed to respond to the appropriate rehabilitation and restricted work, and has now developed into rotator cuff tendon tearing. Because of ongoing issues with the right shoulder, there was consequential left shoulder overuse, which is now limited to also left shoulder rotator cuff tendon tearing. I do feel that in the presence of a painful and symptomatic right shoulder that the left shoulder is a consequential and secondary injury …’
[35] ARD page 50.
Dr Gupta observed:
“… I agree that the expectation and hope would have been that the right shoulder injury would have settled with the appropriate work restriction and rehabilitation, however human biology, pathology and physiology is not a mathematical model and there are always exceptions to the rule and in this particular case, despite all the appropriate treatment, there is no denying that successive MRI scans have shown, if anything, deterioration in his structural anatomy from rotator cuff tendinopathy to discreet rotator cuff tendon tears. In other words, whilst generally speaking tendinopathy of the rotator cuff resolved with the appropriate time, rehabilitation and restriction on activity, occasionally a physiological pathological process is set in place, which does not respond to these treatment modalities and simply” [sic].
The lacuna in the evidence, as I understood Mr Stockley, was the nature of the light duties that were said to be responsible for Mr Setia’s need to use his left shoulder to the degree that there had been a deterioration from rotator cuff tendinopathy to discreet rotator cuff tendon tears, Dr Wallace was not aware of the 24 December 2019 left shoulder MRI scan, which had been taken at the same time as the scan of the right shoulder, and his opinion that there was no objective evidence that Mr Setia had suffered any work related injury to the left shoulder is accordingly incorrect. The MRI scan of 24 December 2019 demonstrated such objective evidence.
The left shoulder MRI showed pathology as indicated above (from [44]), including rotator cuff tears, tendinosis, bursitis and a complex biceps tear, amongst other things. The cause for that condition was expressed in a number of ways. Dr Wallace said that the pathology in the right shoulder as revealed by the December 2019 MRI scan was caused by “age-related degenerative rotator cuff tendinopathy at the joint.”[36] His advice was that the right shoulder condition had resolved within a month of the injury, and that the pathology demonstrated in the December MRI of the right shoulder was “age-related degenerative rotator cuff tendinopathy”. He said that the left shoulder presentation could not be explained “on the basis of any known organic pathology.” He was however unaware of the pathology demonstrated in the left shoulder MRI of December 2019, and until his report of 23 May 2023 had not been aware of either the May 2021 surgery, or the results of the 27 July 2022 MRI. Accordingly I find Dr Wallace’s opinions to be speculative and given in ignorance of relevant clinical and radiological evidence. They are of little probative weight.
[36] Reply page 33.
Dr Gupta said that the left shoulder condition developed because of ongoing issues with the tendinopathy in the right shoulder, which had developed into “surgical pathology” in the form of “high grade partial rotator cuff tendon tears.”[37] The overuse of the left shoulder had also led to rotator cuff tearing. Dr Habib found that the pathology had been caused by overuse of the left shoulder, whilst Mr Setia was protecting the injured right shoulder.
[37] ARD page 49.
The evidence to support Dr Gupta and Dr Habib’s opinion that such overuse occurred is to be found firstly in the notes of Dr Chandra.
Mr Setia was put on light duties following his injury on 8 November 2017. When Dr Perla examined the left shoulder on 26 April 2018, he found a full range of movement and negative impingement. The clinical notes of Mr Setia’s GP, Dr Chandra, did not commence until
18 September 2018, by which time Mr Setia had been performing light duties since the date of injury.
Dr Chandra’s notes are, however, of some forensic value, as they show that Mr Setia was discussing regularly the duties he was doing. At a case conference with Dr Chandra on
28 September 2018, which the insurer’s rehabilitation provider had called, Dr Chandra noted that Mr Setia’s duties were opening and unwrapping 400 pallets of cold food per day, which involved cutting, mostly with the right hand. The entry showed “d/w...rotation of current duties.” It is not clear what “d/w” means, but it is clear that rotation of duties was discussed.
Rotation was again discussed following a further case conference on 9 October 2018, where it was described under the heading “issues.” An “option” regarding the rotating of the roster was recorded. On 16 October 2018 Dr Chandra recorded that Mr Setia was working “full-time” on a six hour shift and that there was “still not change of duties.” Mr Setia noted that he had an aggravation of shoulder pain three days earlier. Dr Chandra also noted “awaiting change of duties/rotation of duties.”[38] On 1 November 2018 Dr Chandra noted that a rotating roster had yet to be allocated, and on 12 November 2018 Dr Chandra noted that Mr Setia was now having his old duties and indeed had tried to lift 12kg.
[38] ARD pages 348-349.
On 23 November 2018 the entry noted that Mr Setia was now doing a “rotating job” and that he was coping better. Similar entries continued until Dr Chandra noted on 21 October 2019 – almost a year later – that Mr Setia was complaining of bilateral shoulder pain. That entry is the first reference to any left shoulder problem, although it did also describe a “reoccurrence of both shoulder pain”, which suggests that the left shoulder symptoms were already being experienced.
Secondly, further evidence that Mr Setia was overusing his left shoulder was available from the report of the physiotherapist, Mr Breckenridge. On 14 June 2019 Mr Breckinridge gave an account of Mr Setia’s duties at that time. Some of the tasks had made Mr Setia’s right shoulder pain worse, Mr Breckenridge noted, particularly when flexing the shoulder to a high position whilst cutting the plastic covering on the pallets. Mr Breckenridge reported that
Mr Setia’s symptoms would settle when he was not doing repetitive overhead reaching and slicing type actions. Mr Setia had recently been on a rotation roster that was comfortable for him and did not irritate his shoulder. Mr Breckenridge obtained the history that more recently Mr Setia had been doing tasks that aggravated his symptoms. Mr Breckenridge’s opinion that if the workplace continued to provide Mr Setia with inappropriate tasks he would not improve, proved prescient. It constitutes further proof that the duties allocated to Mr Setia were indeed beyond the capacity of his injured right shoulder.
Thirdly, Dr Dalton noted as of 25 September 2019 that Mr Setia was not able to do any picking duties, but that he was working full-time, had never missed a shift and that his employer was happy to keep him on his current modified duty. It follows that at that time,
Mr Setia was engaged in full time duties, and it was consistent that if he was allocated duties that were inappropriate, such constant employment might well have led to the overuse of the contralateral shoulder, remembering that he had been so employed on suitable duties for about two years at that stage.
Fourthly, to this body of evidence must be added Mr Setia’s account in his statement of
5 November 2023 when he said that he had relied heavily on his left shoulder for tasks such as reaching, lifting and carrying. He also used it for cleaning in order to provide temporary relief to his right shoulder.
Fifthly, Mrs Setia’s statement also had some relevance. She was obviously doing her best to support her husband, and her statements as to what he had said to her when he came home on the date of injury, 8 November 2017, can be accepted. However, the evidence that the shoulder pain was so severe that it masked the neck pain I find to be an attempt at advocacy and of no probative value, as indeed was her statement that Mr Setia could not differentiate where the pain was because the right neck and right shoulder were so close to each other. Notwithstanding, the evidence she gave that Mr Setia had not been able to use his right arm as much since his injury was based on her own observation, and there is some probative value in her account regarding the use of his left shoulder at home.
In BFZ v Inner West Council[39] Principal Member John Harris reviewed the relevant authorities regarding the acceptance of expert evidence within the Commission. From [423] he said relevantly:
“It is instructive to repeat what was discussed by Beazley JA (as her Honour then was) in Hancock v East Coast Timber Products Pty Ltd(Hancock).Her Honour stated:
‘82 Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone’.”
[39] [2024] NSWPIC 167
The Principal Member referred to the recent decision of Booth v Fourmeninapub Pty Ltd[40] and the discussion therein of the “fair climate” principle as first used in Paric v John Holland Constructions Pty Ltd[41] in which Leeming JA (as he then was) explained the origins of the phrase. He said that in the lower Court in Paric the Court said at 154:[42]
“From our analysis of the record, it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance, and other vital points but in general furnished a fair climate for the consideration of the views of the expert witnesses.”
[40] [2020] NSWCA 162.
[41] [1985] HCA 58.
[42] [1984] 2 NSWLR 505.
In the High Court the plurality said at [9]:
“9. It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (authority omitted ). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”
For the reasons given above, I am satisfied that the opinions given by Dr Gupta and
Dr Habib have been made in a fair climate.
The Aldi Stores Suitable Duties Plan I find to be no more than a general list of duties. There was no evidence from the employer as to how effectively it was applied in Mr Setia’s case, and it does not assist the respondent.
I accordingly make the above orders.

[2025] NSWPIC 133

8 April 2025