Setia v Aldi Stores - [2025] NSWPIC 133

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Setia v Aldi Stores

Details

AGLC: Setia v Aldi Stores [2025] NSWPIC 133
Case: [2025] NSWPIC 133
Decision Date: 8 April 2025

CaseChat Overview and Summary

Setia v Aldi Stores was a workers compensation claim heard in an Australian court. The claimant, Mr Setia, alleged that he suffered injuries to his right shoulder while working for Aldi Stores, and subsequently developed a condition in his left shoulder. Aldi Stores denied liability for the left shoulder condition. The court was required to determine whether the assumptions made by the claimant’s treating surgeon and medical expert were supported by the evidence.

The legal issues centered on whether the MRI scans and other medical evidence provided sufficient support for the claimant’s assertions regarding the injuries and the consequential condition. The court examined the MRI reports, the treating surgeon's notes, and the opinions of the medical expert to ascertain the credibility of the assumptions made. The claimant's surgeon and expert had made specific findings regarding the extent and nature of the shoulder injuries and the consequential condition in the left shoulder.

The court found that while some assumptions made by the claimant’s expert were not entirely supported by the evidence, others were plausible and could be reasonably inferred from the medical documentation. The court applied the principles from BFZ v Inner West Council to evaluate the weight of the evidence. It concluded that there was a fair climate of evidence supporting the assumptions made in several areas. As a result, the court allowed the claim for the injury to the right shoulder but denied the claim for the left shoulder condition.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.” 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.”

Ratio Decidendi

Legal Principle Established

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