Skillings v State of New South Wales (North Coast Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Skillings v State of New South Wales (North Coast Local Health District) [2023] NSWPIC 543
APPLICANT:	Graham Skillings
RESPONDENT:	State of New South Wales (North Coast Local Health District)
MEMBER:	Jill Toohey
DATE OF DECISION:	16 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for treatment of left shoulder; accepted injury to lumbar and cervical spines when applicant took the weight of a patient while transferring a patient between beds; dispute whether applicant suffered injury to his left shoulder within the meaning of section 4(a); claim regarding lumbar and cervical spines determined in 2012; claim regarding left shoulder injury discontinued in 2012; consideration of clinical records; evidence of severe osteoarthritis in the left shoulder; Held – finding that applicant suffered injury to left shoulder in the incident in 2008; finding that injury materially contributed to the need for treatment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to his left shoulder arising out of or in the course of his employment with the respondent on 4 April 2008. 2. The left total shoulder replacement and associated rotator cuff repair proposed by Dr Stuart Kennedy is reasonably necessary treatment as a result of the injury on 4 April 2008. 3. The respondent is to pay the costs of and associated with the proposed treatment.

STATEMENT OF REASONS

BACKGROUND

The applicant, Graham Skillings, was working as a wardsman at Kempsey Hospital on 4 April 2008. He was transferring a patient from a theatre table onto a ward trolley when he felt pain in his abdomen, right groin and lower back. The respondent, the State of New South Wales (North Coast Local Health District), accepted liability for injury to his lumbar spine.
In 2011, Mr Skillings commenced proceedings in the then Workers Compensation Commission for lump sum compensation for injury to his lumbar spine, cervical spine and left shoulder as a result of the injury on 4 April 2008.
At an arbitration hearing on 23 May 2012, the respondent disputed that Mr Skillings gave notice of, and made a claim for, injury to his cervical spine in accordance with ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The respondent also disputed that he had suffered injury to his cervical spine. At the conclusion of the hearing, Arbitrator Perrignon gave ex tempore reasons for his decision that Mr Skillings had met the time limits in the 1998 Act and that he had suffered injury to his cervical spine. He referred the matter to an Approved Medical Specialist for assessment of whole person impairment of Mr Skillings’ lumbar and cervical spines.
The transcript of the Arbitrator’s ex tempore reasons shows that Mr Skillings had discontinued his claim for injury to his left shoulder.[1] The transcript does not disclose the reasons for, or any further information about, the discontinuance.
[1] Applicant’s Application to Admit Late Documents (AALD) lodged on 13 September 2023, page 38.
By letter dated 29 July 2022, Mr Skillings claimed the cost of left total shoulder replacement surgery and associated rotator cuff repair recommended by Dr Stuart Kennedy. Mr Skillings claimed the proposed treatment was reasonably necessary as a result of injury to his left shoulder on 4 April 2008.
By a dispute notice issued on 8 September 2022, the respondent disputed Mr Skillings’ claim on the basis that he failed to give notice of, and make a claim for, his injury within the time prescribed by ss 254 and 261 of the 1998 Act; that his injury did not arise out of or in the course of his employment; that employment was neither the main contributing factor nor a substantial contributing factor to his injury; and the proposed treatment is not reasonably necessary as a result of an injury as required by ss 59 and 60 of the Workers Compensation Act 1987 (1987 Act).

ISSUES FOR DETERMINATION

The respondent no longer raises a dispute concerning compliance with the notice provisions in the 1998 Act.
The parties agree that the following issues remain in dispute:
(a) whether Mr Skillings sustained injury to his left shoulder on 4 April 2008, and
(b) if so, whether the treatment proposed by Dr Kennedy is reasonably necessary as a result of that injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a telephone conference on 24 July 2022, Mr Skillings’ solicitors advised that they were not involved in the proceedings in 2012. The parties agreed that it would assist in determining Mr Skillings’ present claim to have information about the history of his claim in relation to the left shoulder including any reasons the claim was discontinued in 2012. I agreed, and issued directions for production of clinical records. I also directed that parties be given access to the Workers Compensation Commission file in the previous proceedings including the transcript of Arbitrator Perrignon’s ex tempore decision.
Parties attended a conciliation conference and arbitration hearing on 19 September 2023 at which Mr Skillings was represented by Mr Dewashish Adhikary of counsel, instructed by Ms Jasmina Mackovic. The respondent was represented by Mr Daniel Stiles of counsel, instructed by Mr Najeh Marhaba. The parties could not reach agreement and the matter proceeded to a hearing.
On 13 September 2023, an AALD was lodged on behalf of Mr Skillings. At the arbitration hearing, Mr Stiles objected to the admission of three statements by persons who had worked with Mr Skillings, each dated 6 September 2023, which were attached to the AALD.
Mr Stiles objected to the documents firstly on the basis that the respondent had no realistic opportunity to respond to them and, secondly, on the basis of relevance. Mr Stiles submitted that the statements amounted to observations of Mr Skillings’ complaints of symptoms in his left arm and would not assist in determining the issue of injury.
Mr Adhikary submitted that the respondent had not demonstrated any prejudice by reason of admission of the documents and there was no evidence that the respondent had taken any steps to respond to them since they were served on 13 September 2023. Mr Adhikary submitted that the statements demonstrate a linear pattern between the injury in 2008 and the proposed treatment, and form part of the” factual matrix”.
Considering the content of each statement, my view was that was difficult to see how they would assist in determining the issues in dispute. However, I decided they should be admitted and I would hear submissions as to their weight.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    AALD lodged on behalf of Mr Skillings on 13 September 2023 and attached documents.

Oral evidence

There was no oral evidence.

Mr Skillings’ statements

Mr Skillings provided statements of evidence dated 6 December 2011 and 11 May 2012 in the previous proceedings, and statements dated 21 June 2023 and 6 September 2023 in the present proceedings.

Statement dated 6 December 2011[2]

[2] ARD page 1.

Mr Skillings describes his injuries as “low back pain, right sciatica, neck (cervical spine), left shoulder”. He states that, on 4 April 2008, he was transferring a patient who weighed approximately 135 kg from the theatre table onto a ward trolley. He was assisted by other staff but he was standing on the far side of the trolley to reach over and hold “the main part of the lift”. As they were transferring him, the patient rolled to one side as he started to recover from the anaesthetic. Mr Skillings had to take the main part of his weight in his arms which caused him sudden abdominal pain, right groin and lower back pain.
Mr Skillings filed an incident report with his manager and saw Dr Zhu at the Accident and Emergency Centre. He was given a Workcover certificate and was off work for two weeks due to “the main area of pain” in his lower back and right groin. He states that the “initial and most concerning pain” was in his lumbar spine but, over coming days, the neck pain increased and he underwent an MRI three weeks after the injury.
Mr Skillings states that, after he went back to work, he started experiencing pain in his left shoulder and both sides of his neck. He dismissed the pain in his shoulder as related to his neck pain. However, while undergoing core training treatment by Enriched Health, he was told there was an injury to his shoulder. He states that Dr Zhu only referred to his lumbar spine injury in his medical reports “because that is the only body part approved by the insurer.”

Statement dated 11 May 2012[3]

[3] ARD page 8.

Mr Skillings states that he believes his shoulder injury arose as a result of the injury on 4 April 2008. At the time of the injury, his initial and major complaint was with his lower back. Within a few days he noticed a considerable pain in his neck. Once he began mobilising his upper body, his shoulder injury became apparent.
Mr Skillings states that he complained to Dr Zhu about his shoulder but Dr Zhu dismissed his concerns and said he would focus only on those body parts for which liability had been accepted. Mr Skillings states that he was taking “an immense amount of pain killers” which he believed was “masking the pain” in his shoulder. As he began to mobilise and reduce the painkillers, he noticed the injury in his left shoulder.
Mr Skillings states that Paul Seward from Hastings Physiotherapy agrees that the pain was marks by the inactivity and pain medication. Mr Seward also thought the exercises to strengthen his back “may have caused irritation or brought the injury to my attention as a result of beginning to mobilise my body through movement.”
Mr Skillings states that there have been no other injuries or incidents which could have caused the injury to his shoulder.

Statement dated 21 June 2023[4]

[4] ARD page 10.

Mr Skillings recounts the circumstances of the injury and treatment. He recalls first attending upon Westside Medical Centre approximately eight years earlier where he told doctors of the pain and limitations he was experiencing in his left shoulder. He states that he recalls noting this pain to Dr Zhu who dismissed his concerns. Dr Zhu recommended physiotherapy which he had at Hastings Physiotherapy.
Mr Skillings states that he has reviewed Dr Zhu’s record that he developed shoulder pain after lying down during the CT in 2009. He states his shoulder pain started after he began mobilising his upper body after the injury and Dr Zhu dismissed his concerns. He states that he had to put both arms above his head for a time during the CT scan after which he needed assistance to put his left arm back down due to the pain. He already had pain in his left shoulder and it was aggravated after this procedure.
Mr Skillings states that he also reported this to the exercise physiologist, Krystal Tate. at the start of his rehabilitation program in 2008. He cannot recall the name of the company that provided the service but it was at the Rydges Hotel in Port Macquarie. He recalls that his left shoulder was quite stiff and he had trouble moving it without pain. He was given exercises and continued to attend for treatment and management of his left shoulder and other injuries.

Statement dated 6 September 2023[5]

[5] Applicant’s AALD page 52.

Mr Skillings refers to his previous statements. He states that he did not notice shoulder pain until after he started rehabilitation with Enriched Health where he had to complete some overhead weights. This was the first time he had done these movements since the accident and he was struggling to lift his left arm over his head.

Clinical records: Dr Zhu

The ARD contains a one-page extract of Dr Zhu’s records for three consultations, on 21 July 2009, 4 August 2009 and 18 August 2009.[6]
[6] ARD page 123.
On 21 July 2009, Dr Zhu noted the reason for visit was “shoulder pain”. He noted Mr Skillings had a cortisone injection, his pain was even worse and he was to see a neurosurgeon again. The reference to the injection to seeing a neurosurgeon again appears to refer to the lumbar spine and to Dr Anthony Bookalil (below).
Dr Zhu noted:
“Has developed both shoulder pain after lying on the table for CT guided cortisone injection. He deny any injury recently. Had R) shoulder pain in the past.
O/E: tender to both shoulder tips and pain increase when left the arms from the sides of the body.
?Rotator cuff tear (both side)”
On 4 August 2009, Dr Zhu noted the reason for visit was “Workers compensation”. Records for the subsequent visits show that Mr Skillings was on oxycontin and awaiting approval from the insurance company for an operation. It is not clear from the record whether this relates to the lumbar spine, the shoulder, both or neither.
On 18 August 2009, Dr Zhu recorded the reason for visit as “workers compensation”. He referred to pain killing medication but the reason is not clear from the record.

Clinical records: Westside Medical Centre

Clinical notes from Westside Medical Centre date from May 2014 to 23 May 2023.[7] Dr Elizabeth Ryrie has provided a letter dated 29 September 2022 in which she states that Mr Skillings first saw Dr Andrew Whitworth on 22 January 2014 as a new patient. She first saw Mr Skillings on 24 April 2020 and has been his regular doctor since October 2021. Dr Whitworth has since left the practice.[8]
[7] Applicant’s AALD page 56.
[8] ARD page 71.
Dr Ryrie notes that records provided by Mr Skillings’ lawyers show that he saw Dr Zhu on 21 July 2009 with shoulder pain, and suspicion of bilateral rotor cuff tears was documented. She notes dates of consultations with Dr Whitworth and other doctors at Westside about his injuries. She notes that, on 22 January 2014, Dr Whitworth noted the injury in 2008 and he noted a lumbar disc prolapse and pain in the upper lumber and cervical spine. On 13 May 2014, Dr Whitworth noted acute on chronic back pain. He saw Mr Skillings again for work-related back and cervical pain and other complaints on a number of occasions throughout 2014.
The records show that Dr Haibi Hu recorded on 7 October 2015 that Mr Skillings had a neck injury at work in 2008 and had recently had an exacerbation of neck pain which was radiating into his left arm.
Dr Ryrie states that a physiotherapy referral by Dr Whitworth on 15 September 2015 is the first documentation at the practice involving the left shoulder. The notes for that date do not mention the shoulder. Under “Actions” they show “Letter written to Phyx You Physiotherapy and Rehabilitation”. The referral letter does not appear to be in evidence.
On 17 January 2020, Dr Moriarty noted:
“Left shoulder pain, likely RC pathology
intermittent left shoulder pain for years
much worse last 3-4 months”
On 28 February 2020, Dr Moriarty noted results of an ultrasound and X-ray showed “moderate to severe OA GH joint, supraspinatus tendon assist with partial thickness tear, subacromial bursitis”.
On 30 June 2021, Dr Whitworth noted results of scans of Mr Skillings’ neck and shoulder. He noted the ultrasound confirmed “chronic rotator cuff issue” and that he would refer Mr Skillings to Dr Stuart Kennedy “as no response from physio last year”. His referral letter asked Dr Kennedy to see Mr Skillings “regarding chronic left shoulder limitation and pain.” He said Mr Skillings had tried physio and exercise in the previous year with minimal improvement and a recent ultrasound seem to indicate “some rotator cuff pathology - mostly chronic.”[9]
[9] ARD page 121.
On 9 July 2021, Dr Schukar noted plain X-ray of the left shoulder and “left shoulder pain” with reduced movement. He noted “supraspinatus tendinitis on ultrasound, no recent trauma ?OA change”.
On 9 June 2022, Dr Ryrie recorded “left shoulder injury, old Workcover claim” and that Mr Skillings might need surgery.

Clinical records: Workwise Medical

Records from Workwise Medical do not appear to record complaints of left shoulder symptoms.

Physiotherapy report, Hastings Physiotherapy

Paul Seward, physiotherapist, reported to Mr Skillings’ then solicitors on 10 April 2012.[10] In response to their letter stating “as you are aware …”, Mr Seward said he had “no knowledge or awareness” that Mr Skillings suffered a shoulder injury in early 2009 after engaging in physiotherapy. He said he first saw Mr Skillings on 8 March 2010 when he presented with complaints of injury to his neck and back while lifting an obese patient. He gave Mr Skillings various exercises which involved upper limb movements. He said there was “nothing drastic or extreme in the exercise regime”, it was all “small range and controlled movements of his upper limb though it is possible doing these exercises may have made him aware that there was a shoulder injury.”
[10] ARD page 63.
Mr Seward said if Mr Skillings did have a rotator cuff irritation in his shoulder, the exercises prescribed for his cervical and lumbar spine may have caused some irritation “or more likely is that as [he] improved his core strength and reduced pain in his cervical and lumbar spine, his shoulder symptoms may have become more evident.”

Reports of Dr Bookalil

Consultant neurosurgeon, Dr Bookalil, provided reports dated 19 October 2010 and 7 December 2010 to the insurer regarding Mr Skillings’ lumbar spine.[11] He noted the history of the incident and Mr Skillings’ complaints of back pain and right groin pain since. He noted Mr Skillings’ current symptoms and assessed whole person impairment of his lumbar spine. There is no reference in either report to injury or symptoms in the left shoulder.
[11] Reply pages 1 and 5.

Report of Dr Kennedy

Dr Kennedy reported to Dr Whitworth on 25 August 2021 that he had reviewed Mr Skillings that day for his left shoulder arthritis.[12] Dr Kennedy stated that he “probably injured his shoulder about 14 to 15 years ago when he wrenched it as a wardsman taking a patient off the operating table.” He said that over time, the shoulder pain had worsened and Mr Skillings was now getting some crepitus. He referred to various forms of conservative treatment undertaken by Mr Skillings. He noted that movement in the left shoulder was “quite limited” whereas he had “relatively good” range of motion and strength of the right shoulder.
[12] ARD page 67.
Dr Kennedy reviewed X-rays of the left shoulder and concluded that Mr Skillings has severe osteoarthritis of the glenohumeral joint. He described the options for treatment for osteoarthritis and his recommendation that Mr Skillings undergo a total shoulder replacement.

Dr Bodel’s reports

Report dated 10 December 2010

Dr Bodel saw Mr Skillings for assessment on 10 December 2010 and provided a report of the same date.[13] He took a history of the injury which is uncontroversial. He summarised Mr Skillings’ injuries as abdominal wall, lower part of the back and right groin.
[13] ARD page 46.
Under “Currrent complaints” Dr Bodel noted “pain in the left shoulder which is aggravated by pushing, pulling or lifting, particularly overhead”. He noted reduced range of movement on the left side. He noted that Mr Skillings had had no investigations of the shoulder at that stage and that he needed an ultrasound and an MRI scan.
Dr Bodel said there was a “direct cause a link between the [incident on 4 April 2008] and his ongoing complaints.”

Report dated 28 January 2011

On 28 January 2011, Dr Bodel reported that he had reviewed Mr Skillings that day.[14] Mr Skillings indicated that initially he had pain in the abdominal wall, lower part of his back and right groin and “subsequently within a very brief period of time he developed increasing neck pain and numbness and tingling in both arms”.
[14] Applicant’s AALD page 9.

Most of Dr Bodel’s report is directed to Mr Skillings’ neck injury. He also noted “a reduced range of shoulder movement on the left-hand side and this is probably related to this injury.” He assessed Mr Skillings’ whole person impairment including 7% whole person impairment of her left shoulder.

Report dated 3 April 2012

On 3 April 2012, Dr Bodel reported to Mr Skillings’ solicitors.[15] He noted that he most recently examined Mr Skillings on 10 October 2010 but that appears to be incorrect, considering his report on 28 January 2011.
[15] ARD page 52.
With respect to the “dynamics of the injury” and its “probable relationship to the injury to the left shoulder”, Dr Bodel said the mechanism of injury “could have caused an injury to the left shoulder directly as a result of the lifting incident”. He said Mr Skilling’s main complaint was the back and legs at that time and “any neck and shoulder symptoms may well have been masked by the more significant area of pain.”
Dr Bodel concluded that he was satisfied that “this type of injury could have caused the left shoulder pathology which has subsequently developed.”

Report dated 27 July 2022

Dr Bodel saw Mr Skillings again on 27 May 2022 and reported on 27 July 2022.[16] He described the incident and initial injuries in similar terms to his first report.
[16] ARD page 54.
Under “Subsequent accidents or injuries”, Dr Bodel said:
“This gentleman has developed neck pain and right [sic] shoulder girdle pain which came on gradually over a period of time. At the time that I saw him last, it was part of the complaints, although it came on a little later and not immediately at the time of the lifting incident, as far as I am aware.in fact the left shoulder is the most symptomatic area at the moment and the back and neck are tolerable.”
Under Current complaints, Dr Bodel noted “neck pain, right shoulder and left shoulder girdle pain.” With respect to the left shoulder, Dr Bodel stated the pain “never settled and his pain and function in the left shoulder has steadily deteriorated over time without additional accident or injury.” He noted restricted range of movement in both shoulders and “generalised wasting in the left shoulder girdle and tenderness over the rotator cuff anteriorly. There was weakness on resisted shoulder movement on the left side and painful crepitus on movement.
Dr Bodel noted an X-ray of the left shoulder on 18 June 2021 showed “significant osteoarthritic change in the glenohumeral joint”. An ultrasound on the same date showed “full thickness retracted tear of the whole of the supraspinatus and infraspinatus and evidence of significant osteoarthritis change in the glenohumeral joint.” He said the clinical observations confirmed there was “significant pathology in the region of the left shoulder” which had deteriorated since he last saw Mr Skillings.
Dr Bodel diagnosed “post-traumatic cuff arthropathy involving the glenohumeral joint of the left shoulder caused by the original injury at work” which had steadily deteriorated over time. He said the “work injury and the rotator cuff pathology caused by it are the primary circumstances as to why this gentleman’s left shoulder has deteriorated to the point that he needs a shoulder replacement.”

Radiological investigations

A report of a left shoulder ultrasound on 18 June 2021 concluded:
“Subscapularis and supraspinatus tendinopathy. Contour flattening of the supraspinatus tendon suspicious for chronic partial thickness tear.
Supraspinatus muscular atrophy.
Acromioclavicular and glenohumeral joint OA.”[17]
[17] ARD page 65.
An X-ray report on 13 August 2021 noted a history of left shoulder pain with no recent trauma. Findings were:
“… marked osteoarthritic changes in the glenohumeral joint with complete loss of joint space, moderate subchondral sclerosis and moderate osteophyte formation around the inferior joint margin more pronounced on the humoral side of the joint.”[18]
[18] ARD page 66.

Statements of Katie Gooch, Tracey Brennan and Dr Jacques Hill

Ms Gooch, Ms Brennan and Dr Hill provided brief statements, each dated 6 September 2023.[19] They are all employed by the Mid North Coast Local Health District.
[19] Applicant’s AALD pages 53-55.
Ms Gooch is a clinical nurse consultant. She states that she has known Mr Skillings for 13 years during which time he has frequently reported his pain in his left shoulder. She has often seen him “grimace in pain” when using his arm for simple tasks. On one occasion his pain was so severe he was holding his arm for support and needed a sling which he wore for two to three days, to reduce his pain.
Ms Brennan is an administration officer. She states that she has known Mr Skillings for 13 years and on many occasions has seen him “in quite considerable pain from his left shoulder”. She has noticed him holding the shoulder and sometimes unable to use that arm because of the pain which “shoots down his arm” and he has to take painkillers to get through the day.
Dr Hill is a radiation oncologist. He states that he has known Mr Skillings for 13 years during which they have had a lot of interaction and it is “very obvious” that he has “significant and debilitating left shoulder pain and discomfort, with resulting decreased function of his left shoulder.” He has had to have his left arm in a sling and takes numerous medications in order to remain at work in his key role of coordinating patient treatment.

SUBMISSIONS
The applicant’s submissions

Mr Adhikary submits that Mr Skillings does not say he felt immediate onset of pain in his left shoulder. Mr Skillings explains why Dr Zhu’s notes do not reflect his injury. By the time he noticed symptoms, he had had treatment for his lumbar spine, he was quite incapacitated and immobile for a time, and on medication which masked his symptoms. As he became more mobile and reduced his medication, he noticed the left shoulder symptoms.
Mr Adhikary submits that any absence in Dr Zhu’s notes does not demonstrate that Mr Skillings had no symptoms, rather that he was managing his symptoms himself and they were intermittent, as his statements say.
Mr Adhikary submits that the medical evidence is consistent and uncontradicted. He submits, following Watts v Rake[20] and Purkess v Crittendon,[21] that the respondent has the onus of showing there was another cause for the condition in Mr Skillings’ left shoulder. Mr Adhikary submits that Arquero v Shannons Anti Corrosion Engineers Pty Ltd[22] is relevant where the respondent’s case is based on the absence of contemporaneous evidence. He also relies on Chanaa v Zarour[23] in which the Court of Appeal said at [86] that, in the civil law, corroboration is not a technical term or a legal requirement; the task of the judge is to decide, on the basis of the whole evidence what he or she accepts.
[20] Watts v Rake [1960] 58 (Watts).
[21] Purkess v Crittendon [1965] HCA 34 (Purkess).
[22] Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3 (Arquero).
[23] Chanaa v Zavour (2011) NSWCA 199.
Mr Adhikary refers to Mr Skillings’ account of the incident in his first statement in which he refers to pain in his left shoulder after he went back to work for which he had treatment at Enriched Health. No records were obtainable from Ms Tate but Mr Adhikary submits that Mr Skillings started rehabilitation in 2008. In his second statement, Mr Skillings explains that he began to notice symptoms in his left shoulder which were dismissed by Dr Zhu. He explains how painkillers masked his symptoms.
Mr Adhikary refers to Dr Zhu’s record on 21 July 2009 of left shoulder symptoms following a CT scan; Mr Skillings disagrees with this record and says he felt pain after he started rehabilitation and after he began mobilising, and the CT scan aggravated symptoms that were already present. Mr Skillings reported his symptoms to his physiotherapist.
With respect to the medical evidence, Mr Adhikary submits that, even if the CT scan did cause the injury, that does not detract from the fact that it was a result of the incident on 4 April 2008. Mr Adhikary submits that the records show the predominant need for treatment was Mr Skillings’ lower back and neck but the evidence shows he had left shoulder pain for years. His claim is supported by Mr Seward who said it was very possible that medication and mobility may have masked his symptoms. Dr Kennedy thought his condition was probably due to the workplace injury.
Mr Adhikary submits that Dr Bodel’s report on 10 December 2010 focuses on other body parts but he noted that Mr Skillings complained of left shoulder pain. In his report on 3 April 2012, Dr Bodel addresses the left shoulder pain and his opinion that the mechanism of injury would have caused it and, further that the complaints of back and neck pain could have masked the injury. Dr Bodel confirmed his opinion in his report on 27 July 2022 that the need for surgery was due to the original injury which had deteriorated over time.
Mr Adhikary submits that the dispute notices from 2011 show that the respondent has been aware of the left shoulder injury for more than 12 years but has produced no evidence to contradict Mr Skillings’ statements or the evidence of his doctors.
Mr Adhikary submits that I would be satisfied on the balance of probabilities that the need for surgery arose from the injury in 2008 and not from any other cause.

The respondent’s submissions

Mr Stiles submits that Mr Skillings pleads a frank injury to his left shoulder on 4 April 2008. The first reference in any material is Dr Zhu’s record on 21 July 2009 when he noted that Mr Skillings felt pain after undergoing a CT scan. Dr Zhu noted that Mr Skillings denied any recent injury but he had had right shoulder pain in the past. Mr Stiles submits that it is one thing for Mr Skillings to say he had a frank injury and another to say that it developed as a result of treatment; in that case it would be in the nature of a consequential condition but it is not pleaded as such and the medical evidence does not support such claim.
Mr Stiles submits that the onset of Mr Skillings’ symptoms is in issue. The most contemporary record is by Dr Zhu in July 2009. In contrast, Mr Skillings states that his symptoms came on after he went back to work. Mr Skillings also says he was told by Enriched Health that he had injured his shoulder. Mr Stiles submits that, absent any evidence from Enriched Health, I would give this statement no weight. Mr Skillings also says he did not notice his symptoms until he started rehabilitation. Mr Stiles submits there is no clear evidence as to when Mr Skillings experienced symptoms, and the earliest evidence is in Dr Zhu’s record on July 2009.
Mr Stiles submits that Dr Bookalil took no history of left shoulder injury in 2010, although he took a history of the other injuries.
With respect to Dr Bodel’s reports, Mr Stiles submits that, in December 2010, Dr Bodel referred to left shoulder symptoms but not to causation, and in his diagnosis, he made no reference to the left shoulder. In January 2011, he assigned 7% whole person impairment to the left shoulder without diagnosing injury in his report. In April 2012, he said the incident “could have caused” injury to the left shoulder. He had no scans available and no indication as to what pathology he thought could have been caused by the incident in 2008.
Mr Stiles submits that Dr Bodel has gone from a report making no diagnosis and without any scans, to now saying that Mr Skillings has post trauma pathology. Mr Stiles submits that is “a stretch too far” and should be given little or no weight.
Mr Stiles submits that one would think Mr Skillings would have wanted his left shoulder injury assessed in 2012 rather than discontinue his claim. He submits there is effectively an eight-year gap after the claim was discontinued without any reference to treatment or complaints about the left shoulder. There is no reference when Dr Whitworth first saw Mr Skillings on 14 January 2014. On 7 October 2015, Dr Hu noted neck pain radiating to the left arm but not symptoms in the shoulder.
Mr Stiles submits that it was not until 17 January 2020 that Dr Moriarty noted intermittent left shoulder pain for years, much worse in the past three to four months. Only at this point were scans undertaken which showed moderate to severe osteoarthritis and a partial tear, leading to the referral to Dr Kennedy. Dr Kennedy’s view was that the surgery was necessary to address osteoarthritis in the glenohumeral joint.
Mr Stiles submits that the investigations in 2020 all indicate degenerative pathology and nothing of an acute nature arising from a frank incident.
Mr Stiles submits that Mr Skillings’ claim that Dr Zhu did not record his complaints of left shoulder has not been put to Dr Zhu and I would approach it with caution, particularly considering extensive references to his back and other body parts. Even if I accepted he told Dr Zhu about his shoulder, it is not clear from Mr Skillings’ evidence when that was. Moreover, it is not clear why only one page from Dr Zhu’s records has been put into evidence.
Mr Stiles submits I would give no weight to the statements provided by Ms Gooch, Ms Brennan and Dr Hill. They provide no details as to how often they observed Mr Skillings or what he was doing at the time, and they cannot fill an eight-year gap in the clinical history.
Mr Stiles submits that the scans show advanced degenerative osteoarthritis in Mr Skillings’ shoulder rather than any discrete trauma. If I find that he did sustain injury in 2008, it does not follow that the need for surgery results from that injury and, whatever pathology is there now, it cannot be established that it resulted from that incident.
As to whether the proposed surgery is appropriate treatment for Mr Skillings’ left shoulder, Mr Stiles said the respondent make no submissions.

Submissions in reply

In reply, Mr Adhikary submits that it was not possible to obtain clinical notes from Enriched Health but there is no reason not to accept Mr Skillings’ evidence that he was told he had injured his shoulder. It was open to the respondent, who arranged the rehabilitation, to attempt to obtain records but they did not.
With respect to Dr Bodel’s finding concerning pathology, Mr Adhikary submits that Dr Bodel assessed 7% whole person impairment; he is an expert, and the respondent cannot say that there was no pathology present. Dr Bodel had regard to his own opinion from 2011 and has made his assessment of pathology and diagnosis. Mr Adhikary submits that the respondent is asking me to ignore the medical evidence, contrary to Strinic v Singh.[24] Dr Bodel gives his opinion about diagnosis and pathology caused by the injury and the steady deterioration over time. There is no medical evidence that would enable me to disregard his opinion.
[24] Strinic v Singh [2009] NSWCA 15 (Strinic).
Mr Adhikary relies also on Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[25] and Rail Services Australia v Dimovski.[26]
[25] Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264.
[26] Rail Services Australia v Dimovski [2004] NSWCA 267.
Regarding the absence of treatment between 2012 and 2020, Mr Adhikary submits there was either an injury or there was not. The cause of the injury in 2008 has been confirmed. The discontinuance of the claim in 2012 has no bearing on the present claim.

CONSIDERATION

Section 4 of the 1987 Act relevantly defines “injury” as follows:
“In this Act: injury means
(a) personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration 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, … ”
Section 9A(1) provides that no compensation is payable in respect of an injury (other than a disease, injury), and less employment consent was a substantial contributing factor to the injury. Sub-section (2) sets out a non-exhaustive list of matters to be taken into account in determining with employment was a substantial contributing factor including the time and place of injury, the nature of work performed, duration of employment, probability that the injury or a similar injury would have happened in any event, the worker’s state of health before the injury, and lifestyle and activities outside the workplace.
Section 60(1) of the 1987 Act provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)”.
The respondent does not dispute that the proposed treatment is reasonably necessary treatment for the condition in Mr Skillings’ left shoulder. The issues for determination are whether Mr Skillings suffered a “frank” injury to his left shoulder on 4 April 2008 arising out of or in the course of his employment and, if so, whether the need for the proposed surgery is as a result of that injury.
A “common sense” approach is to be taken to determining questions of causation, by careful analysis of the evidence, including a careful analysis of the expert evidence: Kooragang Cement Pty Ltd v Bates and Kirunda v State of New South Wales (No 4).[27]
[27] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang); Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45.
Mr Skillings bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[28] and Nguyen v Cosmopolitan Homes.[29]
[28] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[29] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
Mr Skillings pleads injury to his left shoulder on 4 April 2008 within the meaning of s 4(a) of the 1987 Act. There is no dispute that he suffered injury to his lower back and neck on that date for which he received treatment. He does not claim to have felt the onset of symptoms in his left shoulder immediately but the evidence as to when he did is not altogether clear.
In his statement dated 6 December 2011, he says he felt the onset of pain “after [he] went back to work”. In his statement dated 11 May 2012, he says once he began mobilising his upper body his upper body, his shoulder injury became apparent and reducing the amount of painkillers he was taking for his other injuries, his shoulder injury became apparent. As I read them, those statements are not necessarily mutually exclusive. They do not identify the onset of symptoms with any precision but indicate that it was some time in 2008, after the incident at work.
The first reference in medical records to Mr Skillings’ shoulders is Dr Zhu’s record on 21 July 2009, some 15 months after the incident at work. Dr Zhu noted “R) shoulder pain in the past.” He noted symptoms including tenderness in both shoulders and increased pain when lifting both shoulders. He queried rotator cuff tear on both sides.
For reasons which are not clear, only one page of Dr Zhu’s records is in evidence, for three consultations in July and August 2009. It is not clear why neither party sought to have the full record put in evidence. The record for 21 July 2009 refers to a request for an ultrasound of both shoulders. If it was done, the results do not appear in the evidence. It was open to the respondent to request production of the full record; equally, it was open to Mr Skillings, who bears the onus of proof.

Mr Skillings disputes Dr Zhu’s record that he developed “both shoulder pain after lying on the table for CT guided cortisone injection.” He claims the left shoulder symptoms developed as set out in his statements. He claims he told Dr Zhu but he would not record his complaint because the insurer had not accepted that claim. Given that Dr Zhu recorded neck symptoms at a time when the neck injury had not been accepted, that claim makes little sense. I find it improbable, if Mr Skillings did complain of pain in his left shoulder, that Dr Zhu would have refused to record his symptoms for that reason.
It is difficult to know what to make of Dr Zhu’s note: “No [sic] any injury recently. Had R) shoulder pain in the past.” It is not clear whether he was recording what Mr Skillings said about any previous injury, or his own observation but the record suggests that a complaint about the left shoulder was new.
Courts have cautioned that medical records have to be approached with caution. The weight of particular material has to be assessed in light of the purpose and nature of the documentary record, the circumstances in which it was created and by whom: Davis v Council of the City of Wagga Wagga,[30] King v Collins,[31] Mastronardi v State of New South Wales. In Mason v Demasi,[32] Basten J said apparent inconsistencies between an applicant’s testimony and those in medical records should be treated with caution for a range of reasons including where the health professional has not given evidence about how and why the history was recorded.
[30] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
[31] King v Collins [2007] NSWCA 122.
[32] Mason v Demasi [2009] NSWCA 227.
That is not to say that unexplained gaps or inconsistencies in clinical records can simply be disregarded but they have to be considered in light of the evidence generally. I accept that Mr Skillings felt symptoms in his left shoulder from some time in 2008 after the incident at work.
Mr Skillings claims he was told by Ms Tate at Enriched Health when he was undergoing rehabilitation that he had injured his left shoulder. There seems no dispute that he attended on Enriched Health in 2008, organised by the respondent. It was open to the respondent to obtain records but they did not. It does not follow that Mr Skillings’ evidence should be accepted, but it is uncontradicted.
Mr Seward treated Mr Skillings from 8 March 2010, primarily for his back injury. He was not aware of an injury to Mr Skillings’ left shoulder but he confirmed that the exercises he gave him involved upper limb movement and it was “possible” they may have made him aware there was a shoulder injury. Mr Seward considered it was “certainly possible” that Mr Skillings injured his left shoulder while lifting an obese patient and, due to the severity of his back and neck pain and resulting inactivity, in addition to painkilling medication, that the shoulder pain was masked. He said if Mr Skillings did have a rotator cuff irritation, the exercises may have irritated it or “more likely” that the symptoms became more evident as he improved his core strength and reduced pain in his lumbar and cervical spine.
Mr Seward’s report tends to support Mr Skillings’ claim about how and why he started to feel symptoms in his left shoulder.
In his report dated 10 December 2010, Dr Bodel took a detailed history of the incident on 4 April 2008. At the start of his report, Dr Bodel summarised Mr Skillings’ injuries as injuries to the abdominal wall, lower back and right groin. He noted Mr Skillings’ current complaints included pain in his left shoulder which was aggravated by pushing, pulling or lifting, particularly overhead. He noted that Mr Skillings had had no investigations, and he recommended an MRI and ultrasound of the left shoulder. He said there was “a direct causal link between the lifting incident” and Mr Skillings’ ongoing complaints. It is not clear why Dr Bodel did not list a left shoulder injury at the start of his report but his record of current complaints and his opinion as to causation are clear.
In his report on 28 January 2011, Dr Bodel noted reduced range of movement in the left shoulder “probably related to this injury”, and he assigned 7%, whole person impairment on account of the restriction of movement. He did not specifically identify injury to the left shoulder but his opinion as to impairment and its probable cause are clear.
Dr Bodel confirmed in his report dated 3 April 2012 that the described mechanism of injury “could have caused an injury to the shoulder directly as a result of the lifting incident.” Further, that any neck and shoulder symptoms “may well have been masked by the more significant area of pain.” His report is unsatisfactory insofar as he says “this type of injury could have caused the left shoulder pathology, which has subsequently developed”. He does not identify the pathology and, despite his earlier recommendation for an MRI and ultrasound, there is no evidence of investigations until the X-ray and ultrasound on 18 June 2021. In his report on 27 July 2022, he says scans confirm significant pathology in the left shoulder which had deteriorated since he last saw Mr Skillings but he is not clear as to the pathology.
There are weaknesses in Dr Bodel’s reports but, overall, his opinion is clear and there is no contradictory opinion. The mere absence of a contradictory view does not mean that his opinion should be accepted but he has seen Mr Skillings on four occasions from 2010 to 2022 and has maintained his opinion that he suffered injury to his left shoulder as a result of the incident. Dr Bodel made findings on examination and he has given his opinion as to causation.
Dr Kennedy reviewed the X-rays of the left shoulder showing Mr Skillings has severe arthritis of the glenohumeral joint. He noted “quite limited” movement of the left shoulder and relatively good range of motion and strength of the right shoulder. He considered Mr Skillings “probably injured his shoulder” in the incident into 2008 and his pain had worsened over time.
Dr Bookalil saw Mr Skillings in 2009 and 2010 in relation to his lumbar spine. His report from 2009 is not in evidence. It appears he focused on the lumbar spine and groin. Neither of his reports in October 2010 and December 2010 mentions symptoms in the left shoulder or in the cervical spine. Dr Zhu had already recorded symptoms in both shoulders in 2009, and Dr Bodel had recorded symptoms in both in December 2010. I am not persuaded that any conclusions adverse to Mr Skillings can be drawn from Dr Bookalil’s reports.
There are weaknesses in the evidence, but I find, on the balance of probabilities, that the evidence establishes that Mr Skillings suffered injury to his left shoulder on 4 April 2008 to which his employment was a substantial contributing factor. There is no dispute as to the incident itself. Mr Skillings’ claim that he started experiencing symptoms as he increased his mobility and reduced his painkilling medication is supported by Dr Bodel and Mr Stewart. Dr Kennedy supports the probability that he injured his shoulder in the incident. I am not persuaded that the delay in reporting symptoms in Dr Zhu’s records, if there was delay, outweighs their opinions.
There is no dispute that Mr Skillings has advanced osteoarthritis in his left shoulder for which the proposed treatment is reasonably necessary. However, it does not follow, because he suffered an injury in 2008, that the need for the treatment is as a result of that injury.
The respondent refers to the gap of eight years between 2012, when Mr Skillings discontinued his claim in respect of the left shoulder, and 17 January 2020 when Dr Moriarty noted symptoms.
Mr Stiles submits that one would expect Mr Skillings would have wanted his left shoulder injury assessed in 2012 rather than discontinue his claim. However, no conclusion as to injury or need for treatment can be drawn from the discontinuance. The transcript from 2012 states only that the claim was discontinued. It would be speculation to go beyond it.
It is not completely accurate to say there was an eight-year gap after 2012 before further symptoms were recorded. Dr Ryrie states that a physiotherapy referral by Dr Whitworth on 15 September 2015 is the first documentation at the practice involving the left shoulder. The notes for that date do not mention the shoulder but they do show a referral to Phyx You Physiotherapy and Rehabilitation on that date. Unfortunately, the referral letter does not appear to be in evidence but it is reasonable to assume that Dr Ryrie is correct.
There is no further reference in the notes from the practice until 17 January 2020 when Dr Moriarty noted “intermittent left shoulder, pain for years” which was much worse in the last three to four months. Despite the absence of complaints to the doctors, there is no reason to doubt the record, or that it was based on Mr Skillings report. Dr Whitworth’s referral to Dr Kennedy on 30 June 2021, referred to “chronic left shoulder, limitation and pain” for which Mr Skillings had undergone physiotherapy and exercises the previous year with minimal improvement.
Although neither Dr Moriarty nor Dr Whitworth put a specific time on it, it is clear that Mr Skillings left shoulder complaints were long-standing. In reaching this conclusion, I place little weight on the statements from Ms Gooch, Ms Brennan and Dr Hill. All they establish is that, at unspecified times, and in unspecified circumstances, Mr Skillings appeared to have pain in his left arm and/or shoulder.
The respondent submits that the need for treatment arises from the severe osteoarthritis identified in the investigations. However, Dr Kennedy noted the arthritis but concluded that Mr Skillings probably injured his shoulder in 2008, and it had deteriorated over time. In my view, it is clear from his report that he considers the proposed surgery is reasonably necessary as a result of the process that commenced in 2008. Dr Bodel agrees. There is no contrary opinion.
In Murphy v Allity Management Services Pty Ltd[33] Deputy President Roche said at [57]-[58]:
“The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[33] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
There is no evidence of any pre-existing condition in Mr Skillings’ left shoulder. I find that Mr Skillings suffered injury to his left shoulder on 4 April 2008. The medical evidence establishes ongoing, if intermittent, symptoms following the injury and a deterioration over time. I find that the injury has materially contributed to the need for the proposed surgery and that the respondent is liable to meet the costs of and associated with that treatment.

[2023] NSWPIC 543

16 October 2023