Singh v ComfortDelGro Corporation Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Singh v ComfortDelGro Corporation Australia Pty Ltd [2024] NSWPIC 270
APPLICANT:	Jatinder Singh
RESPONDENT:	ComfortDelGro Corporation Australia Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	23 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Permanent impairment claim; whether applicant suffered injury to his left shoulder as alleged and, if so, whether he suffered a consequential condition to his right shoulder; applicant had serious pre-existing problems in the left shoulder and alleged injury to that body system in the course of his employment; although he acknowledged pre-existing problems, the applicant asserted those issues had largely resolved before the alleged injury; Held – that assertion was not supported by contemporaneous medical evidence which demonstrated ongoing serious treatment for the left shoulder condition before the alleged injury; nevertheless, the evidence discloses the applicant suffered injury as alleged; the CCTV footage of the incident at issue is at best for the respondent ambiguous and at worst supportive of the applicant’s version of events, as is his contemporaneous reporting of the incident to the respondent and to his GP; the question of any deduction to be made for pre-existing conditions is, once injury is established, a matter for a Medical Assessor; the evidence also establishes the presence of a consequential condition to the right shoulder as a result of the injury to the left shoulder; both claimed body systems referred for medical assessment.
DETERMINATIONS MADE:	The Commission determines: 1. Leave is granted by consent to amend the alleged date of injury to 11 May 2021. 2. Within seven days of the hearing held on 21 May 2024, the applicant’s solicitors are to lodge the Application to Admit Late Documents relied on at the hearing. 3. Within seven days of the hearing, the respondent’s solicitors are to lodge and serve an Application to Admit Late Documents attaching the Certificate of Capacity/Certificate of Fitness dated 6 March 2024 relied on at the hearing. 4. The applicant suffered an injury to his left upper extremity (shoulder) in the course of his employment with the respondent on 11 May 2021. 5. As a result of the injury to the left shoulder, the applicant suffered a consequential condition to his right upper extremity (shoulder). 6. The matter is remitted to the President for referral to a Medical Assessor to determine the level of permanent impairment arising from the following: Date of injury: 11 May 2021 Body systems referred: left upper extremity (shoulder); right upper extremity (shoulder) Method of assessment: whole person impairment. 7. The documents to be remitted to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments; (d) respondent’s Application to Admit Late Documents dated 7 May 2024 and attachments; (e) applicant’s Application to Admit Late Documents dated 21 May 2024to be filed within seven days of the hearing and attachments, and (f) any Application to Admit Late Documents attaching the Certificate of Capacity dated 6 March 2024 lodged by the respondent within seven days of the hearing.

STATEMENT OF REASONS

BACKGROUND

The factual dispute at the centre of this matter is whether the applicant, Jatinder Singh, suffered injury to his left shoulder while manoeuvring a wheelchair accessible ramp in a bus he was operating in the course of his employment with the respondent, ComfortDelGro Corporation Australia Pty Ltd on 11 May 2021.
The applicant claims permanent impairment compensation in respect of an injury said to have taken place on that date, and in relation to a consequential condition to his right shoulder said to have arisen from overuse after the alleged left shoulder injury.
The respondent denies the applicant suffered an injury as alleged, and also notes the presence of pre-existing pathology and ongoing problems with the applicant’s left shoulder. In the event an injury to the left shoulder is found to have taken place, the respondent also disputes the applicant suffered a consequential condition to his right shoulder.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered an injury to his left shoulder in the course of his employment on 11 May 2021 to which his employment was a substantial contributing factor, and
(b) if the answer to (a) above is in the affirmative, whether the applicant suffered a consequential condition to his right shoulder as a result of the injury at issue.

PROCEDURE BEFORE THE PERSONAL INJUJRY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 21 May 2024. At the hearing, the applicant was represented by Mr Trainor, instructed by Mr Kant. The respondent was represented by Mr Guest, solicitor.
At the hearing, leave was granted to the applicant to amend the date of injury from 12 May 2021 to 11 May 2021. That amendment was not opposed.
At the hearing, the applicant relied on an Application to Admit Late Documents (AALD) dated 21 May 2024. Those documents were admitted into evidence without objection.
At the hearing, the respondent sought to rely on a Certificate of Capacity dated 6 March 2024, a copy of which was forwarded by email to the applicant and to the Personal Injury Commission (Commission). That document was also admitted into evidence without objection.
Orders have been made on the front page of this Certificate of Determination ordering the parties to lodge these respective documents through the Registry.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attachments;
(b)    Reply and attachments;
(c)    respondent’s AALD dated 7 May 2024 and attachments;
(d)    applicant’s AALD dated 21 May 2024 and attachments, and
(e)    the Certificate of Capacity dated 6 March 2024 relied on by the respondent and which will be attached to an AALD.

Oral evidence

Mr Guest sought leave to cross-examine the applicant in relation to the circumstances of the alleged injury together with his history of pre-existing left shoulder problems and his post‑injury employment. Cross-examination in relation to the circumstances of the injury was not opposed and was allowed.
The balance of the cross-examination sought was refused, given the dispute in the matter relates to the question of injury. It was, however, noted the respondent would rely on documents concerning matters on which it sought to cross-examine the applicant to attack his credit.
The applicant gave brief evidence in chief, which was also opposed. Leave was granted to allow the applicant to give the evidence, subject to the right of cross-examination by Mr Guest.
The applicant gave evidence that the injury allegedly suffered took place as he was initially setting up the ramp for passengers to board the bus, rather than when he was packing the ramp after they had boarded.
Following that evidence being given, Mr Guest elected not to cross-examine the applicant.

FINDINGS AND REASONS

Whether the applicant suffered injury as alleged

The material before the Commission also included CCTV footage from the bus which the applicant was driving on the alleged date of injury. That footage shows the applicant deploying the wheelchair accessible ramp and then packing it up before continuing on with his route.
The respondent submitted the footage demonstrated the applicant using his right hand to deploy the wheelchair ramp, rather than his left or both hands. The applicant submitted his left hand was in fact obscured by his body on the CCTV footage, and his movements were consistent with using both hands to deploy the ramp.
Additionally, the applicant submitted the CCTV footage demonstrated an audible grunt or groan made by him as he was deploying the ramp, consistent with the onset of pain.
For the respondent, Mr Guest submitted the applicant’s evidence at the hearing stood in contrast to that contained in his statement.
The relevant passages of the applicant’s statement read as follows:
“7. On 12 [11] May 2021, I was driving the 610X route from the city to Castle Hill. I picked up a passenger who was in a wheelchair at Broken Hill. The passenger was getting off at Castle Hill and required the wheelchair ramp. I pulled the wheelchair ramp as normal, however, it was jammed as there was rubbish underneath and due to the pressure applied when people walk over it. Therefore, it took more force to mobilise the ramp than normal. I was lifting and mobilising the wheelchair ramp when I felt a sudden pain within the left shoulder. Normally, I would lift the ramp simply with my left hand as the lever was positioned on the left.
8. Due to the pain, I decided to report the injury to my employer by calling the control room and I could not complete the shift due to the pain. I took a couple of days from my personal leave to recover, but the pain did not settle. Therefore, I decided to pursue a workers’ compensation claim through my employer.”
Mr Guest submitted the applicant’s statement can only have been referring to the lifting of the ramp from the ground outside the bus as he was returning it to position, rather than, as was stated in his oral evidence, when he was deploying the ramp on the bus. Mr Guest submitted this was the case because there would not have been rubbish underneath the ramp on the bus, nor would people have walked over it thus making it difficult to move.
However, as Mr Trainor noted, it is not at all uncommon for there to be rubbish on the floors of buses, and the placement of the ramp on the vehicle was such that people plainly walked over it.
Mr Guest submitted the applicant was an unreliable witness. He relied upon the applicant’s statement, in which the applicant addressed prior health issues as follows:
“5. Prior to this injury, I had bursitis within my left shoulder. This injury was well managed, and I did not have any symptoms.
6. Aside from the above, I do not have any pre-existing injuries or conditions that can affect with my movements during work.”
Mr Guest took the Commission to a litany of general practitioner (GP) clinical entries predating the alleged injury in which the applicant was plainly suffering from ongoing problems to his left shoulder. To state these entries contradict the applicant’s evidence in relation to his pre-existing left shoulder problems is an understatement. I have no difficulty accepting Mr Guest’s submission that the applicant has downplayed the prior problems with his left shoulder.
The applicant stated he did not have any symptoms in his left shoulder before the alleged injury at issue, however, as recently as 8 March 2021 he had undergone an MRI of the left shoulder for “chronic” pain, a condition for which a cortisone injection had provided no benefit.
Indeed, the GP clinical entries demonstrate the applicant plainly had problems with his left shoulder up until the alleged date of injury. A GP entry of 5 January 2021 revealed the applicant had no improvement to his left shoulder despite a cortisone injection, and a further entry on 16 February 2021 noted the applicant’s left shoulder pain was referable to an incident which occurred in October 2020, and that he was still suffering pain despite physiotherapy.
Mr Guest submitted these discrepancies were significant, as the applicant’s evidence as to his pre-existing left shoulder condition was an essential part of the history provided by him to Independent Medical Examiner (IME), Dr Gehr. However, as Mr Trainor noted, the question at issue is whether Dr Gehr’s opinion was obtained in a fair climate when considering all the evidence, including the provision of all clinical records to him when he provided his second report and maintained his original position. In my view, the climate in which the report was obtained is a fair one.
The applicant carries the onus of establishing that he suffered an injury as alleged. Given the serious discrepancies between the applicant’s statement evidence concerning his pre-existing problems and the clinical entries of his general practitioner, I am minded not to accept the applicant’s version of events unless it is supported by some independent evidence, documentary or otherwise.
In many important aspects, and despite the obvious problems with his credibility, the applicant’s version of events is supported by contemporaneous records. Firstly, in my view, the CCTV does not demonstrate the applicant only using his right arm when deploying the ramp as alleged. Further, the applicant’s statements do not, as Mr Guest submitted, go so far as to assert the injury occurred as he was lifting the ramp from outside the bus. Rather, the precise timing of the injury is not disclosed in the applicant’s statement evidence but was disclosed by him in his oral evidence at the hearing. The alleged timing of the incident is also consistent with the audible groan made by the applicant as he lifted the ramp on the bus.
Additionally, the applicant reported the incident at issue to the respondent almost immediately. That much is made clear by the email correspondence attached to the Application, which includes a request for the wheelchair ramp on the bus at issue to be checked the day after the alleged incident.
The applicant also attended his GP Dr Singh the day after the alleged injury. On that date, the clinical entry of Dr Singh relevantly reads as follows:
“Injured left shoulder at work
Wheelchair ramp was stuck due to some rubbish underneath it
Mod.to severe pain since
Had bursitis in past
Was offered to be seen by work doctor with WC claim by work
He does not want to involve WC at present.”
In my view, that contemporaneous entry, combined with the contemporaneous reporting of the incident to the respondent and the CCTV footage supports a finding of injury on the part of the applicant.
As noted, when viewing the footage on the bus, one can hear the applicant audibly groan as he attempts to lift the ramp. That is, in my view, consistent with the onset of pain.
In light of the contemporaneous material, and the findings which I have made concerning the injurious event, it follows that I reject the respondent’s submissions there was no such injurious event. I make that finding despite reservations surrounding the applicant’s own evidence, given the alarming discrepancies between his past medical history and the version of that history provided in his statements.
Whilst it is true the applicant told the relevant IMEs of his pre-existing shoulder issues, the extent of those issues is plainly not revealed in his statements. Additionally, in making an assessment of the applicant’s credit, I have taken into account the material contained in the respondent’s AALD including investigations which reveal the applicant running a building company despite stating in his ongoing medical certificates that he was not working.
Whilst I accept Mr Trainor’s submission that the material in the factual investigations does not demonstrate the applicant carrying out physically demanding work but rather shows him acting in a supervisory role, it still contradicts the applicant’s version in his Certificates of Capacity in which he states he is not working at all. In my view, that reflects poorly upon him, but is not determinative of whether he suffered an injury as alleged.
Mr Guest also submitted that, given the ongoing issues and pathology in the applicant’s left shoulder before the injurious event at issue, it cannot be said the employment with the respondent was a substantial contributing factor to any left arm injury. I do not, however, accept that submission. There is no question the applicant had significant difficulties with his left shoulder before the incident at issue. However, he was able to work full time and on normal duties, whereas he has only been able to work in a limited capacity since the injury. It follows that the worsening of pains and symptoms in the applicant’s left shoulder is consistent with an injury as that term is defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act).
In my view, the question of the extent, if any, to which a deduction should be made for pre-existing pathology and the difficulties in the applicant’s left shoulder is properly a matter for a Medical Assessor, once there has been a finding of injury to the relevant body part.
Accordingly, I find in favour of the applicant in relation to the disputed injury to the left upper extremity (shoulder), which will be remitted to the President for referral to a Medical Assessor to determine the impairment arising from such injury, if any.

Consequential condition to the right shoulder

The respondent’s IME, Dr Sharp, provided a report in which he was specifically asked whether he considered the applicant’s right shoulder complaints were related to the left shoulder injury. It should be noted that the applicant had also from time to time complained of right shoulder problems before the injury at issue. Dr Sharp replied:
“No, I do not. In the AMA Guides to the Evaluation of Disease and Injury Causation, Second Edition, page 766, ‘In summary, the articles reviewed do not support ‘favour’ as a reasonable cause for development of symptoms in the contralateral shoulder. Rotator cuff lesions are seen with ageing and are often asymptomatic. Typically, activity is beneficial, not detrimental. Although workplace risk factors may contribute to the shoulder symptoms, it appears that most shoulder conditions develop at similar rates. In most cases, favouring is not a probable cause of shoulder pathology. Thus, even if symptoms in the second limb develop after symptoms are present in the first limb (a temporal relationship), there is no scientific support for the concept that having symptoms in the first limb causes an increased rate of disease in the second limb.’”
Plainly the author of that passage has never experienced an injured arm or leg and suffered the consequences of attempting to mobilise with such an injury and the effects on other body systems as a result of such mobilisation. The onset of consequential conditions as a result of injury to a different body part is a well-established and accepted phenomenon in this jurisdiction. In the face of decades of established authority to that effect, the Commission is not assisted by a blanket statement from an IME that such conditions are a medical impossibility.
The applicant need not demonstrate the presence of an “injury” as that term is defined in s 4 of the 1987 Act in order to establish a consequential condition. In this matter, the applicant’s evidence is that he overused his right shoulder after the injury to the left. Moreover, the presence of the issue in the right shoulder is not really challenged by Dr Sharp, rather, he is of the view it is not caused or related to the left shoulder injury.
I do not accept Dr Sharp’s opinion. All that is needed to demonstrate the presence of a consequential condition is a worsening of symptomology in the affected body system rather than a sudden or identifiable pathological change as is required to establish in jury pursuant to s 4. The authorities on this issue are clear, and long-standing.

The clinical records of Dr Singh demonstrate the applicant did return to work, albeit on restricted and light duties. They record the applicant as being keen to return to work, however, having difficulty doing so. In an entry dated 13 March 2023, Dr Singh noted:
“Right shoulder pain for one week
Says his bus routes have changed from mainly two-way based routes to suburban roads
Needs more use of shoulder due to that
Has been favouring right arm due to left shoulder issues over the last year
Examination:
Minor anterolateral right shoulder tenderness
Painful arch beyond 100° abduction
Internal rotation painful”
In my view, that entry is supportive of the applicant’s case in relation to the favouring/overuse of his right arm causing a consequential condition to his shoulder after the left shoulder injury. When asked to comment on Dr Sharp’s view as to overuse/favouring causing a consequential condition, Dr Gehr stated in his supplementary report dated 29 April 2024:
“The medicolegal literature supports injury at the contralateral joint, and this situation in the right shoulder in 20% to 40% of cases. Basically, it is because what other work was being done by both shoulders now has to be done by one shoulder so there is a greater load on the one shoulder, the right shoulder in this case.”
I find favour with that opinion. It is not necessary for the applicant’s condition to fall within a range of percentages of likely cases. Rather, a finding must be made having a common sense evaluation of all the evidence in this matter, as has long been held in the workers compensation context. Having undertaken that exercise in this case, I am satisfied on the balance of probabilities that the preponderance of the lay and medical evidence supports a finding of consequential condition to the right shoulder as a result of the left shoulder injury suffered by the applicant on 11 May 2021.
Accordingly, the right upper extremity (shoulder) will also be remitted to the President for referral to a Medical Assessor to assess the permanent impairment, if any, arising from any consequential condition following from the left shoulder injury.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 270

23 May 2024