Smart v Morrison

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Smart v Morrison & others [2022] NSWPIC 477
APPLICANT:	Alan Lawrence Smart
RESPONDENT:	David George Morrison
SECOND RESPONDENT:	C.T. Morrison & J.A. Morrison & T.C. Morrison t/as TC Morrison Partnership
senior Member:	Kerry Haddock
DATE OF DECISION:	30 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment; claim against second respondent discontinued; accepted claim against first respondent for injury to right upper extremity (right shoulder); disputed claim for consequential condition of left upper extremity (left shoulder) as result of overuse due to favouring injured right shoulder; both parties relied on evidence of independent medical examiners; lack of contemporaneous evidence of complaints in respect of left shoulder; consideration of Wiki v Atlantis Relocations (NSW) Pty Limited, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang v Bates, Tudor Capital Australia Pty Limited v Christensen and Nguyen v Cosmopolitan Homes; Held — the applicant has not satisfied the onus of establishing consequential condition of the left upper extremity as a result of injury to the right upper extremity; award for the first respondent with respect to the claim for consequential condition of the left upper extremity; claim for impairment as a result of injury to the right upper extremity remitted to President for referral to Medical Assessor.
determinations made:	The Commission determines: 1. That the claim against the second respondent is discontinued. 2. That the requirement to file an Election to Discontinue Proceedings against the second respondent is dispensed with. 3. That there is an award for the first respondent for the claim for consequential condition of the left upper extremity (left shoulder). 4. That the matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the right upper extremity (right shoulder) on 19 August 2015. 5. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments, and (b) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Alan Lawrence Smart (Mr Smart), was employed by the first respondent, David George Morrison, as a farm labourer. He also worked as a shearer in shearing season.
As the applicant has discontinued his claim against the second respondent, I will refer thereafter in these reasons to “the respondent”, while meaning the first respondent.
Mr Smart sustained an accepted injury to his right shoulder on 19 August 2015. He also claims to have sustained a consequential condition of his left shoulder as a result of that injury.
The applicant completed a Permanent Impairment Claim Form (the claim form) on 14 December 2021. He claimed to have 22% whole person impairment (WPI) as a result of injury to his left upper extremity and right upper extremity, with date of injury 19 August 2015. The claim form was served on the same day by Mr Smart’s solicitors.
On 7 April 2022, the respondent’s workers compensation insurer, GIO, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO relevantly disputed that the applicant’s claimed consequential condition resulted from his accepted injury on 19 August 2015. It disputed that his accepted injury had resulted in more than 10% WPI, as required by s 66 (1) of the Workers Compensation Act 1987 (the 1987 Act) and maintained that he was not therefore entitled to permanent impairment lump sum compensation.

The applicant lodged an Application to Resolve a Dispute (the Application) on 25 May 2022.
The Application claimed that on 19 August 2015, the applicant was undertaking fencing work and tripped over a wire that was concealed in long grass. This caused him to land heavily on his outstretched right arm, causing immediate injury to his right arm, and consequential injury to his left arm as a direct result of overuse, becoming more left-hand dominant and relying on his left arm for heavier gradation of tasks.
The applicant claimed the sum of $54,820 in respect of 22% WPI as a result of injury to his right upper extremity and left upper extremity on 19 August 2015.
The respondent lodged its Reply on 16 June 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has sustained a consequential condition of his left upper extremity (left shoulder) as a result of the accepted injury to his right upper extremity (right shoulder).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for conciliation/arbitration hearing by Teams video conference on 19 August 2022. Mr Stephen Hickey of counsel, instructed by Mr Tancred, appeared for the applicant, who was present. Ms Compton of counsel, instructed by Mr Newell, appeared for the respondents. Ms Archer of GIO, Ms Hatfield of EML and Mr Virtudazo of EML were also present.
The applicant discontinued his claim against the second respondent. Ms Hatfield and Mr Virtudazo were therefore excused from further attendance.
The parties agreed that, regardless of my determination with respect to the applicant’s claim to have sustained a consequential condition, the medical dispute is to be referred to a Medical Assessor; and all the documents are to be provided to the Medical Assessor.

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) the Application and attachments, and
(b) Reply and attachments.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Alan Lawrence Smart

Mr Smart’s statement is dated 25 May 2022. Some of his evidence relates to his claim against the second respondent, which it is unnecessary to consider.
The applicant’s early occupational background was in farm work, but he also became quite skilled with tools, steel fabrication, mechanics and carpentry, although he did not obtain any formal qualifications in these trades.
Mr Smart played semi-professional rugby league and worked as a mechanic in Newcastle while in his early twenties, later moving to Albury, working for an electrical engineer and as a construction labourer. He then returned to the Forbes district and began work for various farmers as a farm labourer, as well as working as a shearer in shearing season.
On 19 August 2015, he was undertaking fencing work. He tripped over a wire that was concealed in long grass and landed heavily on his outstretched right arm. He felt immediate pain, “and realised there was a problem.”
He saw his general practitioner (GP), who referred him to Dr Sam Kwa. Dr Kwa performed surgery on his right shoulder at Dudley Private Hospital in Orange on 30 October 2015.
After this injury, he was still having problems with his right arm, having pain and restriction of movement, and inability to lift it above shoulder height and lift weights. He discussed a return to work with Dr Kwa, who said he was right to go back to work but needed to be careful. He did not feel as though he was able to return to work and was not confident in doing so, but he needed the money and was sick of sitting around at home, so decided to go back to work.
He continued working with David Morrison, as well as other farm owners. He began to notice his right shoulder deteriorate and also began to notice problems in his left shoulder that he attributed to trying to protect his right shoulder.
He was off work for about 12 months, but was determined to return to work, and did so in around September 2016. When he returned to work, he also noticed his back, right leg and neck were more painful than usual and it was taking him longer to recover from a day’s work.
On 27 January 2017, he sustained a further injury to his right shoulder, while employed by the second respondent. He took evasive action to avoid a large sheep running up the ramp and leaned on the rail with his right arm. He felt immediate sharp pain in his right shoulder.
He returned to see Dr (Neale) Somes, who referred him to Dr Kwa. He said there was nothing he could do, and he just needed to live with it. Dr Somes then referred him to Dr Nathan Taylor, a pain specialist. He has also seen Prof (Simon) Hawke, who is a neurologist.
He reckoned he was going to have to stop work even if he did not have his second right shoulder injury because he was “buggered anyway”. His neck and back pain was constant, and he had enormous trouble getting through a day’s work. He was in so much pain at the end of a day, and there was nothing he could do to recover.
He would say now that neither shoulder is worse than the other. They are both pretty bad, and both constantly painful. He has to sleep on his back and if he rolls onto either side he wakes in pain. He finds sleeping difficult due to pain. He takes Pregabalin, Panadol Osteo and Mobic for pain. He also takes Panadeine Forte when the pain is particularly strong. He does not like taking it because it “messes up [my] tummy” and makes him constipated, but sometimes has to take it when he is in severe pain just to be able to get to sleep. Having his hands on the steering wheel causes both shoulders to ache.
He has worked hard all his life and feels quite depressed and upset that he is no longer able to work and is in constant pain. It was as though it crept up on him suddenly after he went back to work in September 2016. He feels it was due to him losing strength and fitness being off work for a year. He was feeling pretty good, even though he had the occasional twinge in his shoulders, neck and back, before 19 August 2015. He thinks that injury really set him back, although he was able to do his work when he returned in September 2016, but he noticed a steady deterioration after that.
He has not worked since 27 January 2017.

Medical evidence

Forbes Medical Centre

The clinical records cover the period from 1989 to 28 October 2021.
It is unnecessary to refer in detail to the records. The applicant concedes that the only references to symptoms in the left shoulder were on 17 June 2021 and 6 October 2021.
On 17 June 2021, Dr Somes recorded “(L) Arm Pain greater when supine”. He also recorded right loin ache for six months. The reasons for contact were cervical spondylosis and left facet joint arthritis.
On 6 October 2021, the applicant consulted Dr Saba Asif by teleconference. Dr Asif recorded that he had been experiencing 8-9/10 pain all day, every day, in the last two weeks. He was feeling OK that morning – 6/10. The pain usually worsened throughout the day, “sharp and throbbing pains in back and through shoulders”.
None of the numerous WorkCover certificates of capacity (COCs) issued by the practice refers to injury to, consequential condition of, or symptoms in, the left shoulder. There is a consistent restriction on lifting more than 5kg with the right arm. In October 2021, the COCs included rotator cuff (with date of injury 27 January 2017), carpal tunnel syndrome and cervical spondylosis.
On 20 May 2021, Dr Somes referred the applicant to Dr Claire Sui at Orange General Hospital. His presenting problem was recorded as “Pain Mx – OA Neck Back Shoulder”.
There is no evidence from Dr Sui.
The respondent and the applicant made submissions about the content of the records before the injury on August 2015, to which I will refer below.

Dr Samuel Kwa – orthopaedic surgeon

Dr Kwa reported to Dr Somes on 29 September 2015.
Dr Kwa recorded a consistent history of the injury on 19 August 2015. The applicant had “a right massive rotator cuff tear”. He denied any previous problems or injuries to the right shoulder. He did remember a brief episode a few years ago, of some mild problems lifting his right arm. The problem resolved with no further issues. He had had a previous right carpal tunnel release.
Dr Kwa noted that MRI scan reported a massive rotator cuff tear with tearing of the supraspinatus and infraspinatus with retraction. It also reported a small tear of the superior portion of the sub-scapularis and some fatty infiltration of the muscles.
As the tear was large and the injury was recent, Dr Kwa opined that he should proceed to a repair, as “it will not repair itself”. There was marked weakness of external rotation that would lead to ongoing problems with function if left untreated. Dr Kwa opined that it was likely the tears were recent and reparable.
It would be 12 weeks before Mr Smart could use his right arm for light activities or even consider driving. It would be six months before unrestricted lifting activities with his right arm, and even then, the shoulder was likely to be stiff. He was likely to make gains up to 12 months post-surgery.
The applicant had mild pins and needles in his hand, Tinel’s sign at the cubital tunnel, and a scar from a previous right carpal tunnel release. Dr Kwa opined that he could be experiencing some irritation of his cubital tunnel because his right arm had been in a sling. That could be problematic post rotator cuff repair, and he would allow the applicant, within the confines of his sling, to extend his elbow to prevent pressure on the ulnar nerve.
Dr Kwa’s operative report is dated 30 October 2015. The pre-operative diagnosis was large retracted supraspinatus tear, irreparable. Dr Kwa reported that after extensive mobilisation and attempts, the repair was abandoned.
The applicant was to rest his arm in a sling for six weeks and undertake passive and active assisted exercises to full range. Dr Kwa would review him in two weeks.
Dr Kwa reported on 11 November 2015, 12 days after the attempted right cuff repair. “Unfortunately, this was not repairable. Surprisingly, he has very little pain”. The applicant’s arm was in a sling and the wound was well-healed. He could passively forward elevate to 90 degrees without undue discomfort.
The applicant needed ongoing physiotherapy. At six weeks post-surgery, his sling could come off and he could start an active program to full range. At 10 weeks, he could commence a progressive strengthening program. Dr Kwa wished to review him in four weeks.
On 9 December 2015, Dr Kwa reported that “all is well [the applicant] has no pain”. With assistance, he had forward elevation to 130 degrees and external rotation 40 degrees internal to his buttock. Dr Kwa had discontinued use of the sling.
Dr Kwa was happy for Mr Smart to progress to active, assisted active exercises and passive exercises, bringing him out to full range. In four weeks he could start a progressive strengthening program.
At “this stage”, the applicant should not use his right hand for any significant lifting. In four weeks, Dr Kwa was happy for him to lift one to two kg, which could be steadily progressed “hopefully back to full pre-injury duties in two months’ time”.
Dr Kwa concluded that Mr Smart was progressing well. He left the applicant in the hands of Dr Somes and his physiotherapist and would review him as required.
The applicant returned to Dr Kwa on 23 June 2017.
Dr Kwa noted having seen the applicant two years ago, with an irreparable postero-superior cuff tear. He did “recover to 70%” and returned to work as a farm hand.
In January [2017] the applicant was knocked over by a sheep. He reached out to grab a rail and further injured his right shoulder. Since then, he had had pain and difficulty lifting his arm, and pain at night. However, over time that was slowly improving.
On examination, the applicant had crepitus in the subacromial space. With assistance, he could elevate to 150 degrees and externally rotate to 60 degrees with a mild lag. He had weakness and pain on external rotation. Internal rotation was to L5, limited by pain. His belly press test had reasonable strength.
An ultrasound reported a supraspinatus tear.
Dr Kwa opined that the applicant had a longstanding irreparable supraspinatus and infraspinatus tear. It was likely that he had just aggravated his shoulder. He would need further investigation to see what other damage had been done, which would inform further management. However, it would still be the case that he had an irreparable cuff tear.
The applicant should continue physiotherapy and exercise. He would need to alter his permanent work duties away from manual work and handling animals. It was likely that he would be able to continue working with his arms by his side, but any reaching would be difficult.
Dr Kwa reported on 12 July 2017 that he had discussed the MRI with the applicant. It again confirmed irreparable cuff tear, particularly supraspinatus and infraspinatus. The applicant still had an intact long head of biceps. There was some tendinopathy in the intra-articular portion, which could also be a pain generator. The applicant occasionally got pain radiating down his biceps, but it was mostly up in the shoulder. Dr Kwa suspected his biceps was only a small part of his problem.
Dr Kwa suggested the applicant continue with physiotherapy and exercises and using his shoulder within pain tolerances. He would review Mr Smart as required.
There are no further reports from Dr Kwa.

Crowe Physiotherapy

Ms Alyssa Crowe, physiotherapist, has treated the applicant for several years.
Ms Crowe reported on 12 January 2017 that while the applicant was making slow progress, his physical capacity remained somewhat unchanged. His shoulder strength remained globally reduced. Ms Crowe agreed that Dr Somes’ certified capacity of a 5kg lift limit accurately portrayed the applicant’s current capacity.
On 22 June 2017, Ms Crowe reported to Dr Kwa that the applicant had reported re-injuring his right shoulder during a fall at work on 27 January 2017. With this aggravation, he reported pain and weakness with function above shoulder height.
Ms Crowe noted that in 2015, the applicant had an unrepairable right rotator cuff tear. Despite this, he managed to return to work and was able to complete some work above his head.
The applicant was able to flex to 130 degrees, abduct to 110 degrees, and ER (assumed to mean external rotation) was limited by pain. On resistance testing, the applicant’s ER and supraspinatus power was 3/5 and extremely limited by pain. His ER power slightly improved with scapular correction.
Treatment had focused on soft tissue massage, scapular setting drills and gentle/isometric rotator cuff strengthening. There had been some very small improvement to pain and function.
Ms Crowe reported to GIO on 8 February 2018.
Ms Crowe recounted a consistent history. She had last reviewed the applicant on 1 February 2018. While he was making slow progress, his physical capacity remained somewhat reduced.
The applicant’s current certified capacity of a 5kg lift limit was an accurate portrayal of his capacity. Ms Crowe was progressively building his shoulder strength to help start to increase his lifting capacity. She felt he was on track with his rehabilitation, but unfortunately there was no way to speed his recovery.
Ms Crowe anticipated the applicant would require a further 12 months of physiotherapy for his shoulder function to improve. She planned to see him fortnightly, which may stretch to monthly, depending on the rate of progression.
On 25 January 2019, Ms Crowe’s (now Ms Alyssa Brown, but assumed to be the same practitioner) discharge report stated that the applicant had made good progress in regard to shoulder function.

The applicant’s active shoulder range of motion was 130 degrees flexion; 125 degrees abduction; 60 degrees external rotation; and T10 internal rotation. His Patient Specific Outcome score was 22/30, having been 2/30 at initial assessment. His shoulder resistance was 4/5 MMT on external rotation; 5/5 MMT on internal rotation; and Empty Can 3+/5 MMT. He could lift 2kg to 90 degrees shoulder flexion.
Ms Crowe (I will continue to refer to her by that name) opined that it was clear the applicant had not reached full shoulder function. However, given the type of injury, it was unlikely this would be achieved. She felt they were at a stage where physiotherapy was not going to improve outcomes and was therefore no longer reasonably necessary.
The applicant’s recent treatment had consisted of exercises to improve range of movement, scapula stabilising strength, and graduated progression of rotator cuff and deltoid strengthening into range of movement. He had been very compliant with his exercise program and attendance.
Ms Crowe had discharged the applicant with a home maintenance exercise program.

Professor Simon Hawke – consultant neurologist

Prof Hawke reported to Dr Somes on 29 July 2019.
Prof Hawke recorded that the applicant had not worked for the last two to three years after a work-related shoulder injury. He had had ongoing rehabilitation and he thought there had been improvement.
The applicant had recently noted “knife-like” pains starting in the right shoulder, moving into the arm, and recently had developed similar symptoms in the left shoulder. He had a lot of stiffness in his neck. In the last few months his fingers had felt numb. Numbness in his feet had been present for several years. They felt as if “they will burst”.
The applicant had interrupted sleep. He usually slept on his side but woke with pain in the shoulder he was sleeping on and a “dead feeling” in that arm, causing him to turn on the other shoulder, when similar symptoms developed and he had to turn again. Generally, his arms of [sic: were?] weaker, particularly in the last three months.
Mr Smart had undergone carpal tunnel release three weeks ago, with some improvement., but still got some tingling in the right hand. He had had right carpal tunnel release 11 years ago.
CT of the applicant’s cervical spine revealed degenerative change, but no significant cord impingement. He got quite a lot of localised lower back pain. He used to get right-sided sciatic pain.
Prof Hawke found power difficult to assess in the right upper limb proximally, due to pain in the right shoulder, but thought there was mild weakness of the triceps and biceps wrist and finger extension, though the applicant had recently had the surgery.
Prof Hawke opined there were some signs and symptoms consistent with a high cervical cord lesion associated with radiculopathy affecting the right upper limb. He had arranged for a full spine MRI and nerve conduction studies.
Prof Hawke again reported on 10 October 2019.
The applicant had undergone full spine MRI and nerve conduction studies.
Prof Hawke noted that the applicant had some L5/S1 facet joint arthropathy. Mr Smart was not certain it was bad enough to have a local anaesthetic and steroid injection.
Nerve conduction studies showed evidence of carpal tunnel syndrome, but the applicant also had an axonal length dependent peripheral neuropathy that was undoubtedly related to diabetes. This might prolong recovery from carpal tunnel release surgery.

Dr Val Kirychenko – occupational medicine

Dr Kirychenko provided an injury management report to GIO on 16 October 2019.
Dr Kirychenko recorded a history of the injury to the applicant’s right shoulder on 19 August 2015, when he sustained a severe rotator cuff injury that could not be repaired. The pain was improving but did not completely resolve.
The applicant returned to full duties, but with some difficulty, on 20 August 2016. He continued working with the pain.
On 27 January 2017, the applicant was working with sheep, who were startled by the dogs and started stampeding towards him. He tried to stop himself from falling and grabbed the side rail with his right arm, experiencing severe pain in the right shoulder. He could not move his arm.
Dr Kirychenko noted that the applicant still complained of pain, even though he had lost a lot of weight and continued exercises. He woke at night because when he slept on the left side or the right side, the pain in his shoulder was aggravated.
The applicant had been referred to Prof Hawke because he started experiencing numbness down both arms. He was also complaining of pain in the back and neck, associated with stiffness. He had a nerve conduction study “only yesterday”, and MRI of his neck and back, and did not know the results.
Dr Kirychenko recorded complaints of pain and numbness down both arms, with reduced power and pins and needles in both hands. The right shoulder pain caused the greatest discomfort with reduced movement, power and constant pain. There was a component of pain in the neck and lumbar spine, with constant pain and stiffness, with discomfort down the right leg. The applicant had reduced neck movement and pain in the right side of the shoulder.
The applicant walked with a limp, favouring his right leg. Dr Kirychenko recorded that he was cooperative with the examination, with no signs of exaggeration or contrivance.
Dr Kirychenko recorded reduced right shoulder movement.
Dr Kirychenko opined that the applicant’s main injury was the severe rotator cuff rupture on the right side, resulting in reduced movement and power in the right leg [sic], which is his dominant side. The applicant also had pain in his cervical and lumbar spines, with examination indicating nerve root compression, as he had some radicular signs. Prof Hawke seemed to have indicated that he had disc protrusions causing nerve root compression.
Mr Smart was rather depressed with his situation. He “would love to get a little better so he could get back to” some duties, but he realised farm work was very difficult, and he was unlikely to obtain light duties on a farm. He would like some improvement so he could at least drive a tractor at times.
Dr Kirychenko reported that the applicant presented with continuation of multiple injuries, including his right shoulder injury, injury to his cervical spine, with reduced neck movement, and pain and injuries to his lumbar spine, with reduced movement of his back and limitation of lifting. He had difficulty walking, with pain down the right leg, which was probably the result of lumbar spine disc protrusions.
The applicant was not fit for any physical labouring, but Dr Somes had provided a certificate to return to work with a limitation of lifting 5kg. Dr Kirychenko opined that this would be possible in an office environment or other light duties work but would not be viable in a farm environment.
Dr Kirychenko reported that the applicant was a farm labourer, requiring contact, constant and heavy work. He had little use of his right (dominant) arm, and pain in his neck, back and right leg.
The applicant required physiotherapy, nerve blockage and nerve ablation. If that resulted in improvement in his back, he might be able to return to some farm work, such as driving a tractor, which did not require too much physical effort, and which might be on reduced hours. This would have to be determined at the end of his treatment, if he proceeded with it.
Upgrading to higher levels of work would require further treatment, as recommended by Prof Hawke. The applicant should continue with the nerve block and ablation, which may give some improvement in his back capacity to allow him to do some work. He would still be unable to do any heavy lifting, particularly activities requiring the full use of his arms, and bending, and this would tend to be permanent.

Dr John Bosanquet – orthopaedic surgeon

Dr Bosanquet was qualified by GIO and reported first on 2 August 2021.
Dr Bosanquet recorded a history that the applicant had last worked on 27 January 2017, “the day of the injury”. The history of the injury was consistent.
The applicant was referred to Dr Kwa, who had previously treated him. He did not recommend surgery and the applicant had been off work since that time. He also had problems with his back, neck and left arm.
Dr Bosanquet recorded symptoms of pain in the right shoulder that was constant, with no pain-free days. There was restricted movement, and the applicant could not reach overhead. He was able to lie on the shoulder for a short time. There was burning pain with numbness. He had a similar pain on the left side, but a slightly better range of movement.
Dr Bosanquet noted the significant history of injury to the applicant’s right shoulder in 2015, when Dr Kwa diagnosed a rotator cuff tear that was not able to be repaired.
The applicant was having physiotherapy once a week for his shoulder, neck and back. He took six paracetamol a day.
Dr Bosanquet recorded that the applicant was tender anteriorly in his right shoulder. His abduction was 70 degrees, adduction 20 degrees, forward flexion 60 degrees, extension 40 degrees, external rotation 30 degrees, and internal rotation 60 degrees. His biceps were ruptured.
In the left shoulder, abduction was 60 degrees, adduction 20 degrees, forward flexion 50 degrees, extension 20 degrees, external rotation 70 degrees, and internal rotation 70 degrees. The biceps were intact.
Dr Bosanquet referred to investigations of the applicant’s right shoulder and cervical spine. He did not have any investigations of the left shoulder.
Dr Bosanquet opined that the applicant had injured his right shoulder on 27 January 2017. He had aggravated a previous injury where he was found to have a rotator cuff tear that was unable to be surgically repaired. He had ongoing pain, restricted movement, and had been unable to return to work.
The injury had affected the applicant’s dominant right arm. He would be unable to work as a farm labourer but would be able to be employed in a more sedentary occupation, with a lifting restriction of 5kg and avoiding overhead use of his right arm. With these restrictions he could work full time. The most significant factor preventing a return to employment was ongoing pain and restricted movement in his right shoulder. He also had pain in his cervical spine, lumbar spine and left shoulder.
Dr Bosanquet assessed 11% WPI with respect to the applicant’s right shoulder, and 11% WPI with respect to his “normal” left shoulder. Deducting his “normal” left shoulder from his right gave 0% WPI. Alternatively, the WPI of his right shoulder needed to be totally deducted, as it was due to the injury in 2015. In either case, there was no WPI for his right shoulder from the injury on 27 January 2017.
Dr Bosanquet reported to the respondent’s solicitors on 24 February 2022. He understood that the purpose of the report was to determine whether the applicant had suffered a secondary/consequential condition of his left shoulder resulting from the injury on 19 August 2015; and to provide an assessment of WPI of the right upper extremity, and if relevant the left upper extremity (if any) from injury on 19 August 2015 and WPI of the right upper extremity from injury on 27 January 2017.
The applicant’s employment history had not changed. He had last worked on 27 January 2017.
Dr Bosanquet recorded a consistent history of each injury. The applicant was unable to return to work since finishing his shift on 27 January 2017. He had subsequently developed pain in the left shoulder.
The applicant’s symptoms were recorded as constant pain in the right shoulder, worse with movement. He was able to lie on the shoulder for short periods, slept only for an hour, and had restricted movement.
The applicant had similar pain in the left shoulder, that was not as bad, as it was not constant, although he had no pain-free days. He did have pain-free periods. He had a slightly better range of movement but could not reach overhead. He could lie on the left side, but it caused numbness and pain.
The applicant had noticed tingling in both hands, in all fingers and thumbs, which woke him. He had to get up to allow these symptoms to settle. Driving caused paraesthesia and he had a tendency to drop things. He claimed that after the injury in 2015, his right shoulder was still sore, but his range of movement was “not too bad”, though he could not reach overhead. He had no problems with the shoulder prior to the injury in 2015.
Dr Bosanquet examined both shoulders. The range of motion of each was identical, except that internal rotation of the right shoulder was 60 degrees, and of the left shoulder it was 50 degrees. The applicant’s right biceps were ruptured, while the left were intact.
Dr Bosanquet diagnosed massive irreparable rotator cuff tear of the right shoulder and presumed rotator cuff pathology of the left shoulder. He opined that the condition of the applicant’s right shoulder was due to the initial injury in 2015. There was no evidence that he had suffered a secondary consequential condition of his left shoulder resulting from the injury to his right shoulder on 19 August 2015.
Dr Bosanquet referred to the AMA Guides to the Evaluation of Disease and Injury Causation, 2^nd Edition (AMA Guides). He noted that Chapter 33, at page 766, states:
“The articles reviewed do not support ‘favouring’ as a reasonable cause for development of symptoms in the contralateral shoulder. Rotator cuff lesions are seen with ageing and are often asymptomatic. Thus, even if symptoms in the second limb developed after symptoms are present in the first limb (a temporal relationship), there is no scientific support for the concept of [sic] having symptoms in the first limb causes an increased rate of disease in the second limb”.
Dr Bosanquet assessed the applicant with 12% WPI as a result of injury to his right shoulder, but he deducted one-third for pre-existing degenerative changes, leaving an assessment of 8% WPI. There was no “consequential injury” to the left shoulder. Dr Bosanquet regarded the injury on 27 January 2017 as an aggravation of the injury on 19 August 2015. There was no further WPI as a result of the second injury.

Dr Anil Nair – orthopaedic surgeon

Dr Nair was qualified by the applicant and reported first on 10 November 2021. He recorded a consistent history of the injuries on 19 August 2015 and 27 January 2017.
Dr Nair noted that a right shoulder reconstruction was performed on 30 October 2015. Due to the magnitude of the rotator cuff tear, it was not able to be repaired. The applicant returned to work but had significant issues with his right shoulder.
Dr Nair recorded a history that in or around September 2016, the applicant began to develop symptoms in his lower back, cervical spine, and left shoulder region. He had been referred to pain physician, Dr Taylor, but had not seen him due to Covid-19.
The applicant complained of pain and stiffness in both shoulders. Pain was present at rest and provoked by overhead lifting. There was a separate pain in the subaxial cervical spine. There was paraesthesia in both upper extremities. The applicant also had lower back pain, provoked by bending, twisting, and lifting. There was radiation into the dorsal aspect of the right lower extremity.
Dr Nair’s examination of the applicant was limited, as it was carried out by telehealth. He did record that Mr Smart had approximately 50% reduction in the left and right shoulder range of motion.
Relevantly, Dr Nair opined that the applicant had clinical and radiological evidence of a massive rotator cuff tear in the right shoulder. He had clinical evidence of left impingement. Dr Nair opined that it was highly likely that the applicant’s left shoulder condition was consequent to overuse secondary to his right upper extremity injury.
Dr Nair agreed with Dr Bosanquet that the applicant’s WPI had been caused by the first shoulder injury. He assessed 11% WPI as a result of injury to the right shoulder but did not assess the left.
In a supplementary report dated 8 December 2021, Dr Nair assessed WPI as a result of injury to the applicant’s left shoulder as 11%.
By letter dated 19 April 2022, the applicant’s solicitors requested Dr Nair to review and comment on Dr Bosanquet’s report dated 2 August 2021.
On 10 May 2022, Dr Nair relevantly reported that the applicant’s WPI consequent to his right shoulder condition was 11%.
By letter dated 10 May 2022, the applicant’s solicitors advised Dr Nair that his report dated 10 May 2022 was likely to be regarded by the Commission as inadmissible [sic] because it did not disclose any reasoning process. The criticism was likely to be that it was a mere “ipse dixit”, that is, a statement of his conclusion, rather than a statement of his reasoning process and then his conclusion.
The applicant’s solicitors asked Dr Nair for a revised report, setting out his analysis of Dr Bosanquet’s opinion, and why his opinion remained unaltered.
On 24 May 2022, Dr Nair noted that Dr Bosanquet opined that there was no impairment rating for the applicant’s shoulder conditions, as he deemed the left shoulder as “the normal shoulder”.
Dr Nair’s contention was that the applicant’s left shoulder had been “injured” due to overuse, as he did not use his right upper extremity for protracted periods, becoming significantly more left-hand dominant, and in fact relying almost solely on the left upper extremity for the heavier gradation of tasks.
Dr Nair opined that the applicant’s left shoulder could not be deemed a “normal or injured [sic]” side, as there was significant pathoanatomy in the left shoulder. His opinion remained that the applicant’s WPI consequent to the right shoulder condition was 11%.

SUBMISSIONS

The parties’ submissions have been recorded. I will therefore refer to them only briefly.

Applicant

The applicant confirmed that the issue is whether he has a consequential injury to his left upper extremity (shoulder) as a result of the accepted injury to his right shoulder. He referred to Dr Kwa’s evidence, including the operative report and that he would need to wear a sling for six weeks and have ongoing physiotherapy to assist with range of movement. He also referred to the (pre-operative) MRI report dated 12 September 2015.
The applicant submitted that there was no complaint of left arm pain, as the principal issue and main complaint was his right arm. He referred to his evidence that Dr Kwa said he would need to be careful on returning to work, his lack of confidence in doing so, but his need for the money. He returned to the style of work he was used to.
The applicant submitted that, while it is lay evidence, his evidence is a forthright statement of what he thought was the reason for symptoms in his left shoulder. He had had an unsuccessful repair of the right shoulder. He submitted it was common sense to protect it and use his left arm more. There is considerable credence to his statement. He had noticed steady deterioration after returning to work in September 2016.
The applicant submitted that Dr Bosanquet did not support his consequential left arm condition but referred to the large rotator cuff tear and symptoms in his right shoulder. He asked what does one do with such pain and restrictions? He says he relied on his left arm. Dr Bosanquet found that he had similar pain in his left shoulder to that in his right. It is significant that he was off work until September 2016. He had, and still has, a painful shoulder.
The applicant referred to Dr Bosanquet’s similar findings on examination of the range of motion of each shoulder. He submitted it is not a case where Dr Bosanquet or anyone else is saying he is exaggerating, feigning, or has psychological overlay. It seems to be accepted that he has pain and restriction in both shoulders.
The applicant submitted that we know there was no discrete event of injury to his left shoulder, and he was fit for heavy work, apart from occasional twinges, up to the 2015 injury. Dr Nair was asked to focus his attention on the factors considered causative of his left shoulder problem. I have the job, in the Wiki sense (a reference to Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174), of analysing two opinions to determine which is accepted.

The applicant submitted that Dr Bosanquet’s opinion that there is no evidence that he suffered a secondary consequential condition seems inconsistent with the history, examination and diagnosis. The diagnosis can stand alone, and not be connected to a consequential injury, and that is how Dr Bentivoglio rests his opinion. This conflicts with what the applicant says about the progress of his left shoulder injury, and the findings on examination.
The applicant conceded that the only reference in the clinical records to complaints about his left shoulder are those to which I have referred above. He submitted there is not a lot to be gleaned from the notes, other than that he had a lot of physiotherapy to his right shoulder, complained of other problems, and took pain killers.
The applicant submitted I should go back to what Dr Bosanquet diagnosed, and what Dr Nair said. Their findings on examination were similar. Dr Nair concluded that it was highly likely that his left shoulder condition was consequent to overuse.
In reply to the respondent, the applicant referred to Dr Kirychenko’s evidence. He read the reference to the pain in his shoulder being aggravated when sleeping on either side as a reference to either shoulder (my emphasis). On examination, Dr Kirychenko tested his right shoulder and compared it to the left. He referred to the findings. The report provides some earlier evidence of limitation of his left shoulder.
The respondent had made submissions about Dr Kwa’s evidence. He submitted Dr Kwa’s focus was on the failed outcome of the rotator cuff repair. His last report was within two months of the surgery. There is not a lot of weight in the submission that he did not record left arm pain, when he left the applicant to the GP and the physiotherapist and did not review him again.
The applicant submitted that, if I accept him, he began to complain of left arm pain well after the surgery. He was in a sling for a considerable period. Dr Kwa said he should not use his right hand for significant lifting.
The applicant submitted it was not incumbent on him to provide a history of every injury he ever had when making a WPI claim based on a discrete injury to the rotator cuff. He was at pains to express the effects of this injury, not to refer to every sprain, strain and fracture. Not everyone recalls every injury. He is 60 and was engaged in heavy work. He should not be penalised on credit in that respect. We are just dealing with whether I am satisfied that he has a consequential condition.
The applicant did not agree that Dr Nair was affected by the words in the request for his report. He says he provided an independent opinion in accordance with the history. I have to analyse the reports of Drs Bosanquet and Nair.

Respondent

The respondent submitted that there is no evidence that the applicant did not report the left shoulder because the right was so significant, and I can’t find that.
The respondent submitted the applicant is trying to say six years later that he attributed his left shoulder symptoms to trying to protect his right shoulder. The evidence is not contemporaneous, and he hasn’t said how he was trying to protect his right shoulder. There is no detail about how or when he began to notice problems with his left shoulder.
The respondent submitted that I would accept that the applicant had a significant right shoulder injury, attempted to return to work, had another injury, and went off work. It was heavy, laborious work. It was not until 2021 that the applicant began to complain about his left side. The respondent submitted there was no report anywhere. There were workers compensation medical certificates for a considerable period, but no complaints until 2021.
The respondent submitted that the applicant started to complain in about 2019 of neck problems and underwent scans. On 29 December 2020, he complained of back pain, exacerbated by getting out of a car.
The respondent submitted that the high point of the applicant’s case is his statement, which I would have to accept in its entirety. Nowhere has he said he had problems with his left shoulder. A reduced range of movement doesn’t mean he has a consequential condition as a result of the accepted injury.
The respondent referred to the applicant’s evidence about an assault in 2004, which it submitted was significant. His evidence was that he had no complaints about his right arm before the injury in 2015, but the clinical notes record an injury to his right wrist on 12 June 1990 and to his right rotator cuff on 23 April 1992. The respondent referred to numerous other entries in the clinical notes. It submitted that the applicant has had injuries to multiple body parts, which are not reported in his statement, but wants me to accept his statement about his left shoulder.
The respondent submitted that the applicant went regularly to physiotherapy and his GP, but not once did he report symptoms in his left shoulder until June 2021, which was the only time it was reported. It submitted I cannot accept the applicant’s evidence about his condition and how it started.
The respondent referred to the applicant’s attendances on Dr Gordon, neurologist, and Dr Kwa, whom he never told about problems with his left shoulder. There is no report in any of the COCs of problems with the left shoulder. There is nothing from the person seeing the applicant the most regarding his right shoulder, that is the physiotherapist, about his left shoulder.
The respondent submitted that it is accepted that the applicant does not have full function in his right shoulder. That does not mean he has a consequential condition of his left shoulder. It submitted that the letter of instruction to Dr Nair from the applicant’s solicitors contains the same wording as the applicant’s statement, in that he is said to have attributed problems in his left shoulder to protecting his right. It submitted that I must consider whether I accept the statement and Dr Nair’s evidence.
The respondent submitted that the question posed by the applicant’s solicitors of Dr Nair, which asked whether he sustained an injury to his left shoulder “as a direct and natural consequence of avoiding the use of his right shoulder following the first injury” was almost providing the opinion. We do not know where Dr Nair obtained the history that in or around September 2016, the applicant began to develop symptoms in his lower back, cervical spine and left shoulder. It is assumed it came from the applicant, but Dr Nair did not say that.
The respondent submitted that the applicant’s lower back pain seems to have started in 2019, not 2016. The “building blocks” of Dr Nair’s opinion are falling away. Dr Nair opined that it was highly likely that the applicant’s left shoulder condition was consequent to overuse secondary to his right upper extremity injury, but the respondent asked “how?” It submitted that Dr Nair had been provided with the answer in the question. He accepted the question and proposition put to him.
The respondent submitted that it was not until the questions were posed of Dr Nair and answered that there was any suggestion of a consequential condition. There was no report of it to the GP, only to Dr Nair, when the claim was lodged. There is no evidence of any treatment to the left shoulder.
The respondent submitted that Dr Bosanquet accepted there is impingement but said there is no evidence of a consequential condition. He is correct. The applicant may have got worse. There is an intervening 2017 injury. He went back to work, and we do not know the tasks he was doing.
The respondent referred to the “common sense” test. It accepted that the applicant can’t recall everything but submitted I can’t accept his statement because of inconsistencies with the previous history. There is a lot of history, but none to support the claim. Dr Kirychenko recorded complaints of the back and neck, but none of the left shoulder.
In reply to the applicant, the respondent submitted that he had seen Dr Kwa after the dates submitted by the applicant.

SUMMARY

The applicant claims to have developed a consequential condition of his left shoulder as a result of the accepted injury to his right shoulder on 19 August 2015. His case is that the condition of his left shoulder developed as a result of overuse, as he became more left-hand dominant and relied on his left arm.
The applicant is not required to establish that he has sustained injury to his left shoulder arising out of or in the course of his employment, pursuant to s 4 of the 1987 Act, or that employment was a substantial contributing factor to the condition, pursuant to s 9A of the Act.
In accordance with the decision of Deputy President Roche in Kumar v RoyalComfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), and the cases discussed therein, Mr Smart need only establish on the balance of probabilities that the condition of his left shoulder resulted from the accepted injury to his right shoulder.
In Kumar, Roche DP applied the principles of Kooragang v Bates (1994) 35 NSWLR 452 (Kooragang), and they have consistently been applied in the Commission.
In Kooragang, Kirby P, as he then was, said at [461G]:
“[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.”
After referring to English authorities, his Honour added at [462E]:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
The applicant’s statement provides no detail of the activities he performed with his left shoulder while trying to protect his right, or when he first noticed symptoms in his left shoulder. His only evidence about this is that he noticed his right shoulder deteriorating and began to notice problems in his left shoulder that he attributed to trying to protect his right shoulder.
The applicant said he stopped work not only because of the second injury to his right shoulder, but because his neck and back pain were almost constant, not because of, or contributed to by, symptoms in his left shoulder. I have not found his evidence helpful.
I do not accept the applicant’s submission that there was no complaint about pain in his left arm because his main complaint related to his right. He has given no evidence to that effect, and there is no medical evidence to support this contention.
The disputes comes down to what is essentially a contest between the opinions of Dr Nair, qualified by the applicant, and Dr Bosanquet, qualified by the respondent.
The applicant referred me to the decision of the Court of Appeal in Wiki. The Court referred to Wiki with approval in Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 (Christensen).
In Christensen, McColl JA said at [389]-[390] (Macfarlan JA agreeing):
“There being starkly contrasting medical evidence, as Ipp JA held in Wiki, both the Arbitrator and the Deputy President were obliged to consider the evidence in a manner which entailed a rational analysis of the issues. Where the experts are properly qualified and none has been found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable, a decision based solely on demeanour will not provide the losing party with a satisfactory explanation for his or her lack of success. At least in the case of experts, resort to the Court’s observations of the demeanour of witnesses should be a last resort as a means of choosing between their evidence.[1]
Further, even in a case where there is an adverse credibility finding in respect of one witness, the decision-maker is not relieved from considering evidence which is ‘unchallenged, unanswered, ostensibly reliable and supported by uncontested contemporaneous records’. [2] Nor does such a finding relieve the decision maker, or an appellate decision-maker when required, of the duties of analysis and the provision of reasons to demonstrate and explain that such analysis has occurred. Failure to carry out an analysis of such evidence will mean there has not yet been a determination of the case of the party adducing it upon a consideration of the real strength of the body of evidence it presented.” (Emphasis added).
[1] Bartlett v Australia & New Zealand Banking Group Ltd (2016) 92 NSWLR 639; [2016] NSWCA 30.
[2] State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 (Earthline).
I have not of course had the opportunity to hear oral evidence from either Dr Nair or Dr Bosanquet, and nor have I had the opportunity to assess their demeanour, which in any event should be a “last resort”.
The decisions in cases such as Nominal Defendant v Clancy [2007] NSWCA 349 and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 urge caution when relying on clinical records. However, where the applicant claims to have a consequential condition, which would necessarily develop over a period of time, where his own evidence is of limited assistance, and I do not have the benefit of medico-legal reports on this issue from his treating practitioners, I have little choice but to look to the contemporaneous records.
As the applicant fairly conceded, the only references in the extensive clinical records of his GPs’ practice to his left shoulder were in June 2021 and October 2021. Neither provides any reason for symptoms in the left shoulder, let alone refers to it being overused to protect the applicant’s right shoulder.
I accept that the GPs’ focus was on treating the applicant, and their notes may not record everything he told them, but, as I have noted. I do not have any report from, in particular, Dr Somes, his regular GP, in support of his claim. Dr Somes never included reference to the applicant’s left shoulder in his COCs.
I place no weight on the fact that the applicant did not give evidence of the many injuries recorded in his GPs’ clinical records. As he submitted, he is now 60 years old, and he has been engaged in heavy manual work all his working life. It would be unusual if he had not had injuries as a result of those activities, and perhaps even more unusual if he recalled them all in any detail. They are of minimal, if any, relevance to the matter. In any event, Dr Kwa did record a history of previous problems with the applicant’s right arm, and carpal tunnel syndrome.
The applicant was treated by Ms Crowe over several years, and she has provided a number of reports, the last of which was in January 2019. At no stage did she refer to any history of symptoms in the left shoulder, as a result of favouring the right shoulder, or for any other reason. She is an allied health practitioner, who was actively treating the applicant’s condition. Had he been experiencing symptoms in his left shoulder, or felt he was overusing his left arm, I would have expected him to have advised her of that.
I accept the applicant’s submission that there is not a lot of weight in Dr Kwa not recording symptoms in his left shoulder when he reviewed Mr Smart after the surgery to his right shoulder. He submitted that Dr Kwa then left him to the GP and physiotherapist.
However, as the respondent submitted, Dr Kwa did treat the applicant again in mid-2017, after the 2017 injury. He has not recorded any complaint of symptoms in the applicant’s left shoulder. I have no evidence from him other than the reports to which I have referred above.
Prof Hawke saw the applicant in July 2019. He did record symptoms in the left shoulder. However, he reported that the applicant had “recently” noted “knife-like” pains starting in the right shoulder, moving into the arm, and recently had developed similar symptoms in the left shoulder. He has not recorded any history of the applicant overusing his left shoulder. He opined that the symptoms may be coming from the cervical spine.
I do not accept the applicant’s submission that Dr Kirychenko was referring in his report to either shoulder (or both shoulders) when he referred to pain in his shoulder being aggravated when sleeping on either side.
What Dr Kirychenko reported was “…he wakes up at night because when he sleeps on the left side or the right side, the pain in his shoulder is aggravated”. This was under the heading “History of Injury”, and the injury to which he referred was to the applicant’s right shoulder on 27 January 2017. I am not prepared to draw the inference that he was referring to both shoulders. In my view, it is more likely that he was referring only to the right.
Dr Kirychenko did record complaints of pain and numbness down both arms, with reduced power and pins and needles in both hands, but he has referred in this regard to Prof Hawke’s findings.
Dr Kirychenko reported that the applicant had a number of injuries. The main injury was the severe rotator cuff repair on the right side, resulting in reduced movement and power in the right leg [sic]. The applicant also had pain in his cervical and lumbar spines. There is no mention of his left arm or shoulder. While Dr Kirychenko recorded that he had little use of his right arm, he did not record any history of overuse of his left arm.
The purpose of the consultation with Dr Kirychenko was, in his words, “to perform an IMC (injury management consultation) assessment to determine Mr Smart’s medical condition and fitness to perform some work”. In my view, it is unlikely that, in those circumstances, all possible restrictions on the applicant’s fitness for work would not have been canvassed.
I now return to the evidence of Drs Bosanquet and Nair and Bosanquet.
Dr Nair was asked a very specific question by the applicant’s solicitors, that is, whether Mr Smart sustained an injury to his left shoulder “as a direct and natural consequence of avoiding the use of his right arm and shoulder following the first injury”.
Dr Nair responded that it was “highly likely” that the applicant’s left shoulder was consequent to overuse secondary to the injury to his right upper extremity. However, he has not recorded any history of what this overuse entailed. He has also recorded that the applicant began to develop pain in his left shoulder in around September 2016.
The applicant’s evidence is not specific about when he began to have symptoms in his left shoulder. The history that it was in about September 2016 appears to have come from his solicitors’ letter of instruction.
Dr Nair expanded on his opinion in his report dated 24 May 2022. He contended that the applicant’s left shoulder had been “injured” due to overuse, as he did not use his right upper extremity for protracted periods, becoming significantly more left-hand dominant and almost solely relying on his left upper extremity “for the heavier gradation of tasks”.
The difficulty I have in accepting Dr Nair’s opinion is that the conclusion is based on a history that is not borne out by the contemporaneous evidence, which is entirely lacking in any reference to the applicant overusing his left arm, let alone almost solely relying on it. Ms Crowe in fact recorded that after the 2015 injury the applicant managed to return to work and was able to complete some work above his head.
Despite the fact that the applicant’s right rotator cuff tear was irreparable, Dr Kwa reported soon after the surgery that he had little pain. In December 2015, all was well, and he had no pain. He had recovered to 70%.
By December 2015, Dr Kwa opined that the applicant could steadily progress “hopefully” to full pre-injury duties in two months. While it is possible Dr Kwa was over-optimistic, the fact is that, when he sustained the second injury, the applicant was engaged in working with sheep (Dr Bosanquet reported that he was crutching and penning up sheep), which was the type of work he had performed before the injury in 2015. He did not again consult Dr Kwa until after the injury in 2017.

Dr Bosanquet opined that the applicant had presumed rotator cuff pathology in his left shoulder. There was no evidence that he was suffering a secondary consequential condition of his left shoulder resulting from the injury to his right shoulder.
Dr Bosanquet appears to have based his opinion on the AMA Guides. I do not believe the AMA Guides are necessarily definitive evidence regarding the development of contralateral shoulder symptoms due to “favouring” an injured shoulder. However, the applicant bears the onus.
The applicant referred me to Wiki, but I have noted what McColl JA said in Christensen, in reference to Earthline. In deciding between the evidence of Drs Nair and Bosanquet, I have had regard to the whole of the evidence before me, as discussed above.
In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, the Court of Appeal (McDougall J; McColl JA and Bell JA agreeing), said (at [48], referring to the decision of the High Court in Malec v JC Hutton Pty Limited[1990] HCA 20; (1990) 169 CLR 638):
“On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.”
The Court went on to say in Nguyen (at [55]):
“The position may be summarised as follows:
(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
For the above reasons, I do not accept Dr Nair’s evidence. I am not satisfied, on the balance of probabilities, that the applicant has sustained a consequential condition of his left upper extremity (left shoulder) as a result of the injury to his right upper extremity (right shoulder) on 19 August 2015. There will therefore be an award for the respondent in respect of that claim.
The medical dispute as to the assessment of WPI as a result of injury to the applicant’s right upper extremity (right shoulder) will be remitted to the President for referral to a Medical Assessor.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 477

30 August 2022