Warwick-Smith v Sydney Trains

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Warwick-Smith v Sydney Trains [2024] NSWPIC 529
APPLICANT:	Luke Warwick-Smith
RESPONDENT:	Sydney Trains
MEMBER:	Michael Wright
DATE OF DECISION:	23 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and proposed surgery; two injuries; background of prior injury; causation; Held – applicant sustained injuries in the course of employment; weekly compensation and medical expenses ordered.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injuries to his right shoulder in the course of his employment with the respondent on 14 July 2020 and 15 July 2023, pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). Employment was the main contributing factor to both injuries on 14 July 2020 and 15 July 2023. 2. The surgery recommended by Dr Kuo, right open laterjet procedure/stabilisation (the proposed right shoulder surgery), is reasonably necessary as a result of injury on 15 July 2023. 3. Respondent to pay pursuant to s 60 of the 1987 Act for the costs of, and related to, the proposed right shoulder surgery. 4. Respondent to pay the applicant weekly compensation pursuant to s 37 of the 1987 Act at the rate of (a) $682.06 per week from 2/3/24 to 16/3/24; (b) $895.96 per week from 17/3 /24 to 30/3/24; (c) $1,074.41 per week from 31/3/24 to 13/4/24; (d) $388.67 per week from 14/4/24 to 27/4/24; (e) $1,146.24 per week from 28/4/24 to 11/5/24, and (f) $695.89 per week from 12/5/24 to 8/6/24. 5. Liberty for the parties to apply in respect of indexation of pre-injury average weekly earnings and calculation of weekly compensation.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute, Luke Warwick-Smith (the applicant) claimed weekly compensation and medical expenses, being the cost of proposed right shoulder surgery, as a result of injuries said to have happened on 14 July 2020 and 15 July 2023 in the course of his employment with Sydney Trains (the respondent).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the conciliation/arbitration hearing of this matter on 15 August 2024, the applicant was represented by Mr Hickey, of counsel, and the respondent by Mr Grimes, of counsel.

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 and attached documents;
(b)    Reply and attached documents, and
(c)    supplementary statement of the applicant dated 1 August 2024.

Oral evidence

There was no oral evidence.

Statements

The applicant provided statements dated 11 June 2024 and 1 August 2024.
In his statement dated 11 June 2024, the applicant said that he suffered a rugby injury in around 2014 when he injured his right shoulder. He said that he stopped playing rugby for about a year and had physiotherapy for about 12 months and he made a full recovery. He stated that he suffered an aggravation of this injury in 2015 while again playing rugby. He said that this injury resolved with physiotherapy and rest. He stated that although he had had previous sport injuries he was able to return to work without any restriction or discomfort.
He stated that on 14 July 2020 he commenced work at 7.15am and he started work on the welding bench. The applicant stated that he tried to get some metal out of the material rack and as he was pulling the metal out his right shoulder “popped out” and he felt a crack and pain. He said that he felt his shoulder popped back in. The applicant said that he told his boss at the time that he had popped his shoulder and he needed to go to the doctors. The applicant said that his boss wanted to write it as a workplace injury but the applicant told him not to worry about it because he thought it was related to his “foot injury”, which I take to mean his football injury, from five years beforehand.
The applicant stated that he consulted his general practitioner (GP) Dr Nguyen on 14 July 2020 and he was referred for scans. He said that he underwent an X-ray and ultrasound of his right shoulder on 15 July 2020. He said that he underwent an MRI scan on 28 July 2020. He was referred to Dr Kuo.
He stated that he consulted Dr Kuo on 1 September 2020. The applicant stated that Dr Kuo recommended right shoulder arthroscopy and stabilisation/SLAP repair. However, due to Covid and a subsequent family matter, the surgery was delayed and did not take place until 24 February 2023. The applicant said that he continued with work with the discomfort of his shoulder up until the surgery in February 2023 and his shoulder had popped out and in several in work tasks in that time.
The applicant stated that following the surgery on 24 February 2023, he was on unpaid leave for six weeks while he recovered. The applicant also said that he underwent physiotherapy treatment following review with Dr Kuo on 9 March 2023.
The applicant stated that after his surgery in February 2023 he was able to return to his full duties without restriction.
He stated that he was provided with a clearance medical certificate by Dr Hassan on 9 April 2023 in which he was cleared to return to work. The applicant stated that he went back to work and resumed his usual tasks and he was feeling better and did not have any issues with his right shoulder. He said that he did feel a little discomfort every so often but not like before and he had had no issues from that time on.
The applicant said that at about the end of March 2023 he attended a forum conducted by his union. He said that after a discussion with his union representative about his injury at work he was recommended to speak to the union lawyers and, following consultation with them, he lodged a workers compensation claim.
The applicant stated that on 8 July 2023 he did overtime with the electrical department of the respondent without any issues. He stated that these were new duties that he did not usually do every day and he conducted the work safely and efficiently.
The applicant stated that on 15 July 2023 again attended the electrical department and performed the same duties as the previous week. He said that as he was pulling a lever down with his right arm he felt a tear or crack in his right shoulder and he stopped straight away and tried to stretch it out. He said that he informed his supervisors about what had happened and the injury was recorded in the register. He stated that he continued to work and on 8 July 2023 as he was working the pain in his right shoulder kept returning. He said that he left work at about the middle of the day to go and see a doctor but was not able to see the doctor until the next day.
The applicant stated that he consulted Dr Hassan or 19 July 2023 and he was referred for an X-ray and ultrasound. He said that at that time he was still in pain and his pain increased whenever he moved his arm. He stated that he underwent an X-ray and ultrasound of his right shoulder on 20 July 2023. He stated that he returned to Dr Hassan on 24 July 2023 as his pain was continuing and it was causing issues with his sleep and ability to work. The applicant was referred for physiotherapy.
The applicant stated that he consulted Dr Kuo on 28 August 2023 and he was referred for an MRI scan of the right shoulder. On review of the MRI scan results on 2 November 2023 Dr Kuo recommended repeat surgery by way of an open procedure in the form of a right open later jet stabilisation rather than to attempt a further repair.
He said that he consulted Dr Hassan on 7 February 2024 and informed her that he had continuing pain in his right shoulder and he was advised to avoid repetitive movements and to commence office work of two days per week with forklift driving of two to three hours per day for three days per week.
The applicant stated that he continues to have ongoing pain and very limited range of movement in his right shoulder. He stated that he is unable to elevate his right shoulder above shoulder height and if he does so he feels extreme pain through his neck, shoulder and arm. He stated that he cannot sleep on the right side of his body and he is constantly woken by pain. He said that he has restricted range of movement because of his shoulder pain.
In his statement dated 1 August 2024, the applicant stated at that he had received physiotherapy following the injury on 15 July 2023 until November 2023, when he was advised by his medical practitioner to stop until surgery was performed.
He said that he then returned to working on light or suitable duties for eight hours per day for five days per week with restrictions as to lifting and carrying of less than 5kg and pushing and pulling of less than 5kg and with only occasional bending or twisting with his right shoulder.
The applicant stated that these light duties consisted of stamping identification codes on steel materials he said that he would clap the steel with the codes and then put it onto a pallet. He said that although this was light work it was very repetitive and he did this for a week and then his shoulder began to hurt and his capacity was reduced to three days per week. He stated that he was then off work for over one month as his employer did not have any duties available at that time for the applicant. He stated that he returned to work at about the end of August or early September when he was allowed to drive the forklift and work vehicles for four hours per day. He said that he did these duties until May 2024 when he was told by his employer that he could not do these duties any more. He said that he then continued to work eight hours per day for three days per week on administrative duties until about July 2024 but there was not much work for him to do in that regard. He said that after his claim was declined he began to use his annual in sick leave to cover the days that he was unable to work.
The applicant stated that as he has eight children he could not afford to remain on a reduced wage and although he was in a lot of pain and had no medical treatment he had to return to work for eight hours per day and five days per week on light duties.

Clinical notes

Dr Nguyen recorded in November 2013 painful right shoulder on and off for two or three years with frequent falls due to sport and regular lifting at work.
On 3 March 2014 Dr Nguyen recorded sore right shoulder “on sat, sport injury”.
On 21 March 2016, Dr Nguyen recorded “…recurrent dislocation of the R shoulder”. On 4 November 2016, Dr Nguyen recorded “sore R shoulder, dislocated again”.
On 14 July 2020, Dr Nguyen recorded "dislocated R shoulder again during the football game a few dys ago R should has been aching had recurrent dislocated R shoulder, was sent to Dr see Dr K".
On 19 July 2023, Dr Hassan recorded "c/o rt shoulder pain- 5 days...h/o surgery in feb in shoulder rotating metal at work repetitively on 15/7/2023 felt pain since then".
On 24 July 2023, Dr Hassan recorded "for r/v of shoulder pain still have the pain no radiation of pain get worse with movement no relieving factor no nocturnal pain h/o surgery in feb in shoulder".

Imaging/scans

An X-ray and ultrasound tight shoulder report dated 15 July 2020 recorded clinical notes as “painful right shoulder. Sports injury. Recurrent shoulder dislocation”. The report concluded:
“1.     Bony sequelae of past dislocations with bony irregularity of the inferior glenoid and humeral head.
2.      Subacromial bursitis and impingement.
3.      Intact rotator cuff.
4.      Follow up orthopaedic review may be indicated, with a view to MRI for correlation.”
A/Prof Papantoniou reviewed the film of the above imaging and commented:
“This demonstrates normal alignment. There are inferior glenohumeral osteophytes and a Hill-Sachs lesion. There is no rotator cuff tear.”
Dr Kuo in his report of 1 September 2020 reported an MRI performed 28 July 2020 as follows:
“An MRI scan performed 28th July 2020 (prior to his most recent dislocation) confirms a Bankart and superior labral tear. There is a Hill Sachs lesion. There is bursal fluid with intact rotator cuff tendons.”
A/Prof Papantoniou reviewed the film of an X-ray and ultrasound of the right shoulder on 20 July 2023. He commented:
“These demonstrated some irregularity at the inferior aspect of the glenoid consistent with his previous trauma and an old anterior dislocation. There was some flattening of the superior lateral aspect of the humoral head consistent with the previous Hill-Sachs deformity. There is marginal new bone formation. The ultrasound demonstrated a subacromial bursitis.”
Dr Kuo in his report of 2 November 2023 reported an MRI performed 6 September 2023 as follows:
“An MRI scan performed 6th September 2023 confirms the previous Bankart repair. However there is a new bony Bankart avulsion anteroinferiorly.”
Dr Harrington commented on the same MRI:
“The repeat MRI following the incident in July 2023 shows some fluid and changes on his glenoid with rotator cuff pathology (which wasn't seen on the original MRI).”

Dr Kuo

Dr Kuo, orthopaedic surgeon, provided a number of reports, including the reports referred to above, as well as reports dated 13 May 2024 and 13 June 2024.
In his report dated 1 September 2020, Dr Kuo noted the following history:
“…left hand dominant Welder who presents with left shoulder instability. Luke states he has had symptoms dating back to a Rugby Injury around 2 years ago. He has had numerous dislocations since that time. His most recent was just last week on 29th August 2020 when he was going for tackle and had a traction injury to the shoulder. On this occasion, the shoulder has remained quite painful and a little a stiffer than normal.”
Dr Kuo was of the opinion that the applicant “…has right shoulder instability with associated SLAP tear…” He recommended right shoulder arthroscopy, and stabilisation/SLAP repair.
In his report dated 2 November 2023, Dr Kuo stated
“An MRI scan performed 6th September 2023 confirms the previous Bankart repair. However there is a new bony Bankart avulsion anteroinferiorly…I discussed with Luke his MRI findings and given his persistent symptoms I feel he will require repeat surgery however he will require a open procedure in the form a of a right open Laterjet stabilisation rather than an attempted repeat repair.”
In his report to the applicant’s solicitors dated 13 May 2024, Dr Kuo recorded the history noted above. He noted initial consultation on 1 September 2020, then he next saw the applicant on 24 February 2023 for surgery in the form of a right shoulder arthroscopy, stabilisation and SLAP repair, and follow up on 9 March 2023, 28 August 2023 and 2 November 2023.
Dr Kuo also stated that the applicant
“…reported approximately 5 months post operative he was at work pulling on a rotating lever repetitively when he felt subsequent pain and weakness in his right shoulder. My assessment was of a combination of cuff and recurrent instability pathology. As a result he is working on reduced hours and duties. Based on the patients history this incident post operatively would be the cause for his current incapacity and limitations.”
Dr Kuo was of the opinion that the post-operative incident was a substantial contributing factor to the current injuries and that the recommended right shoulder surgery “is reasonable and necessary and is the result of the incident on 15 July 2023”.
Dr Kuo also stated that the applicant
“…had the shoulder stabilised on 24th February 2023. It would appear he was making steady post operative recovery and reported even in his immediate post operative visit he was keen to return to welding and work. However with this incident on 15th July 2023, he has injured his cuff and MRI scan performed confirms there is a new injury to the labrum with a bony Bankart avulsion. This would explain his ongoing symptoms. I am therefore of the opinion that the need for surgery is related to this incident on 15th July 2023.”
In his report to the applicant’s solicitors dated 13 June 2024, Dr Kuo stated:
“I note comments regarding the dates of the injury and I stand corrected if the patient has indicated that the 14th July 2020 was the date of this incident where he was pulling a steel rod out of a rack when he injured his shoulder. He reports he felt the shoulder dislocate and self-reduce at that time. I am therefore of the opinion that it is this incident has resulted in the need in for surgery and the MRI scan findings of a Bankart and SLAP tear. The pathology identified on MRI scan IS consistent with his history of feeling the shoulder dislocate.”

A/Prof Papantoniou

In his report to the applicant’s solicitors dated 28 February 2024, A/Prof Papantoniou, orthopaedic and spinal surgeon, recorded that the applicant had “a football injury to the right shoulder in approximately 2013. This was an acromioclavicular joint injury and there may have been subluxation or dislocation with spontaneous relocation. It remains unclear. He had physiotherapy and saw his General Practitioner”. He noted the applicant rested his shoulder for six weeks and did not require a sling nor any operations, and the applicant continued with his normal duties and had only two days off work.
A/Prof Papantoniou noted that “between his football injury to his right shoulder and his work related injury in 2020 there were no further injuries to his right shoulder.”
He went on to note that
“…Around July 2020 he was at work performing his normal duties…At this particular time, he was leaning forward pulling on a piece of metal between layers a on a rack. He was using his right upper limb to try and pull out this piece of metal…Quite great deal of force was needed to shift this metal object and as a result he felt a sudden onset of right shoulder pain. He felt like his shoulder had dislocated or subluxed. The pain was mostly in the anterior portion of his shoulder. The pain radiated down medially towards the axilla. He also felt what sounds like nerve type pain running in the posterior aspect of his arm.”
A/Prof Papantoniou noted consultation with the GP and Dr Kuo. He noted right shoulder arthroscopy and rotator cuff repair on 28 February 2023. He recorded that after the shoulder arthroscopy the applicant had an eight week recovery period and then started a return-to-work program on restricted duties and by about May 2023 he was back on normal duties.
A/Prof Papantoniou recorded that:
“…on 15/ 7/ 2023 he was at work performing his normal duties. At this particular time, he was pulling a lever making droppers for the railway power lines. He had to make approximately 1500 of these and towards the end of this he felt a cracking sensation in his right shoulder.”
A/Prof Papantoniou noted the recommendation for surgery by Dr Kuo.
A/Prof Papantoniou diagnosed the applicant as having “bony irregularity of the right shoulder including what appears to be an old Hill-Sachs lesion and irregularity of the glenoid”. He stated that the “rotator cuff is intact”.
He also stated that:
“…there is no question that Mr. Warwick-Smith had pre-existing pathology. His football injury in the past appears to have damaged the acromioclavicular joint. It appears that he may have dislocated his shoulder at the time but it must have spontaneously relocated. I further note that he did not damage the rotator cuff in the process…The currently visualised pathology when compared to the X-ray and ultrasound of 2020 shows the two different causes of the current pathology… He must have dislocated the shoulder in the past. The work related injury must have affected the shoulder as the bony pathology has progressed and more importantly there is new bone formation. If this new bone formation was to occur after his original dislocation it would have been seen on the X-rays and ultrasound of 2020.”

A/Prof Papantoniou was of the opinion that:
“The work injury in 2020 involved such movement and such force as to dislocate or at least sublux his right shoulder. The pathology that has been identified on the most recent ultrasound is consistent with that time frame rather than having occurred from earlier. The injury in 2023 appears to have destabilised the right shoulder and torn soft tissue in and about the joint. I also note that the severity of the pathology currently visualised is also consistent with the injury that occurred in 2020 and being aggravated in 2023. As such, on the balance of probabilities I do believe the progression and aggravation of the glenoid bone abnormality and the Hill-Sachs lesion are attributable to the work injury of 2020 and have been aggravated by the injury in 2023.”
He was of the opinion that in respect of the injury of 15 July 2023, employment was a substantial contributing factor.
A/Prof Papantoniou was of the opinion that the applicant has osteoarthritis of the right shoulder and this has been aggravated by his work injuries. He considered that the applicant’s “employment [is] the main contributing factor to the current pain and disability.”
He further stated that:
“… believe a large portion of the pathology occurred at the 2020 work injury. It must be noted however that the right shoulder was stable and he was able to go back to work without restrictions. He was able to accomplish all of the very heavy jobs required in his employment without issue. It is only after the 2023 injury that his shoulder has become unstable and it is this instability that it requires the shoulder surgery. …It is very specifically the 2023 injury that has destabilised the shoulder necessitating the need for the surgery.”

Dr Harrington

In his report to the respondent’s solicitors dated 22 January 2024, Dr Harrington, orthopaedic surgeon, noted among the documentation had received was a “Factual Report dated 16 August 2023 (without attachments)”, as well as clinical notes of Dr Kuo and other records.
Dr Harrington noted that the applicant:
“…used to play football at a reasonable high level, mainly in the front row or hooker position. I note he had a previous injury or problem with his right shoulder following a football injury in 2015. This settled quickly with physiotherapy treatment. He then had some instability of his shoulder in 2018 so he gave up football. He denies any further injury or problem with his shoulder until the episode at work in 2020.
According to Mr Warwick-Smith, he injured his right shoulder when he crouched and extended his arm to pull a 1 m length of steel rod from the rack. Whilst doing this, he felt a ‘pop’ in his shoulder. This was on 20 July 2020. He says he mentioned to his supervisor at work, but thought it was just an old football injury flaring up. He continued working, but unfortunately his shoulder became much more unstable. have read the factual report investigation, indicating that he may have dislocated the right shoulder during a game of football on 12 July 2020. There is record of a text message to a supervisor asking for 2 days off to attend a doctor.”
He also noted that the applicant:
“…says he was progressing well, until a further incident occurred whilst working in the electrical department on Saturday 15 July 2023 when he was pulling on a lever at the bending machine which bends copper to be used over the top of carriages for electrical current. Normally, he would use his left hand (particularly given that he was still recovering from shoulder surgery) however the machine is designed for right handed people. He describes sudden pain in his right deltopectoral region for about 24 hours.”
Dr Harrington was of the opinion that:
“Mr Warwick-Smith seems to have strained his right shoulder at work when he reached to pull out a length of welding rod at work on 20 July 2020. He says it felt a ‘pop’ like a dislocation, which he'd experienced in the past.
He eventually had stabilisation surgery as a public patient by Dr Kuo, which made a difference. He was making a good recovery and had even returned to work, when another incident occurred at work in July 2023 when he was pulling a on a lever.
I think his current presentation is a new problem, being cuff pathology rather than instability. There is new pathology on MRI and his symptoms are different. Dr Kuo has recommended surgery to address the rotator cuff. In the meantime, it might be worthwhile trying a Cortisone injection to see if this helps his pain, but it isn't going to increase strength or stamina. The diagnosis would be a combination of impingement and cuff pathology. The problem with his rotator cuff could be caused by recurrent dislocations because these episodes can weaken the tendon with each episode.
He rightly points out that the incident at work in 2020 was probably an old football injury causing instability of his shoulder (which he doesn't deny). The stabilisation procedure seems to have been helpful in regards to instability but his current presentation is new pathology. It's certainly interfering with everyday activities and he doesn't have strength or movement to work as a welder.”
He stated that:
“Employment would be a contributing factor to the aggravation given that he has had two incidents at work but there is a history of recurrent dislocations outside of work so don't think we can say that employment is the main contributing factor to the aggravation or exacerbation of his right shoulder condition.”

Arrow Intelligence Group

Attached to the Reply was a factual intelligence report of Arrow Intelligence Group dated 16 August 2023, addressed to the respondent (the report). A number of attachments were listed in the report, including statements and text messages, but none were attached or provided in the documents that were before me. This will be discussed below.
Mr Erwin Subang was described as “an Operator and was around the workshop during July 2020 and July 2023”. The report stated:
“Mr Subang was working around the area in July 2020, although didn't witness any injury, he did speak to the Worker shortly after the alleged incident;
‘In July in 2020, I was in the workshop. I wasn't around Luke at the time he stated having an injury. But He did tell me about it sometime after, that he hurt his right shoulder pulling and lifting something out of the rack near the side of the welding bay. He would tell me to be careful pulling the material out of the rack and to get assistance. I am not sure of what day or date this may have occurred, but it was in July during winter.’

Reasons

The claim for weekly compensation was closed for the period noted in the above award, reflecting the applicant’s return to duties and earnings as outlined in his supplementary statement. The claim for proposed surgery was for right pen Laterjet procedure/stabilisation as outlined in the reports of Dr Kuo dated 2 November 2023 and 13 May 2024.
In relation to the investigation report of Arrow Intelligence Group dated 16 August 2023, the applicant submitted that an inference can be drawn against the respondent in not tendering in these proceedings the referenced supporting material, notably statements, including that of Mr Erwin Subang. This is the rule in Jones v Dunkel.[1] This is the failure of the respondent to tender evidence, in this case the attachments to the subject report.
[1] [1959] HCA 8; (1959) 101 CLR 298.
It is notable, in my view, that the respondent also provided to Dr Harrington a copy of the report of Arrow Intelligence Group of 16 August 2023, without the attachments.
There was no explanation as to why the attachments to the subject report were not tendered in these proceedings. There were a number of signed statements that were said to be attached to the subject report. Some of those statements were quoted in the report to the effect that injury in July 2020 was not reported by the applicant, and that he had referred to football injury or injuries. However, Mr Subang was recorded as saying he was informed by the applicant shortly after injury in July 2020. Mr Subang was quoted from his statement in the same report as stating that he recalled the applicant telling him of pain in his right shoulder at work performing a task that was consistent with the applicant’s statement in these proceedings.
I accept the applicant’s submissions in this regard. I infer that the evidence that was not attached to the report of the Arrow Intelligence Group of 16 August 2023 would not have assisted the respondent’s case in disputing injury.
As noted above, the report of Arrow Intelligence Group of 16 August 2023 contained quoted excerpts reported to be taken from the various statements of persons identified in that report. In my view these excerpts, with the exception of Mr Subang, are not probative. These were excerpts in relation to what was reported to be not said by the applicant to such persons, that is that the alleged injury in July 2020 had taken place, against the background of what was said to have been unrelated football injuries. In my view, the entirety of the signed statements in this regard should have been before me to properly assess the weight to be given to such statements. I am unable to do so, and therefore I do not give weight to the quoted excerpts of such statements.
The exception is the quoted excerpt in relation to Mr Subang. This was in relation to a positive recollection by Mr Subang of what the applicant said to him that was consistent with the applicant’s statement in these proceedings as to injury in July 2020. In my view, some weight should be given to this quote, notwithstanding that a signed statement was not provided by the respondent. In my view, this evidence supports the applicant’s statement that he suffered injury in July 2020.
The respondent also placed reliance upon a document which was described in the Reply as being a “screenshot of text messages to Erwin Subang” that was said to be dated 14 July 2020. However, on the face of that document there was no identification of either the sender or the receiver of the message, other than a reference to “Luke”. There was no explanation as to the source of that document. There was no statement or other source as to the provenance of that document. The Reply referred to this as a separate document, as distinct from the report of Arrow Intelligence Group dated 16 August 2023. That report contained references to text messages from the applicant that were said to have been received by another person, that is not by Mr Subang. I have previously declined to give weight to such excerpts from statements as quoted. I do not give weight to the document described as a text message, and I do not accept the respondent’s submissions in this regard.
The respondent also submitted that the applicant’s description of issues with his shoulder prior to July 2020 was a gross minimisation and was inconsistent with the clinical record and histories noted. In my view, the applicant’s statement as to his prior history was not precisely in accordance with the histories recorded in the clinical records. This in my view did not amount to a minimisation, gross or otherwise, as the applicant referred to previous sports injuries in addition to an account of shoulder injuries in about 2014 and 2015, which was sufficiently similar to the contemporaneous clinical records prior to 2020.
The clinical record of 14 July 2020 was again of a sports injury immediately prior, but the support provided by Mr Subang, which I have accepted, in relation to consistent report of injury is objective separate evidence in the face of the caution that I must maintain in considering the statement of the applicant as to injury on 14 July 2020. The applicant provided an explanation that at the time he believed that his shoulder condition was related to a football injury some five years prior, and it was not until he spoke to his union and solicitors in 2023 and received legal advice, that he made a claim for the injury of 14 July 2020. Having regard to the support provided by Mr Subang, I accept the account provided by the applicant that he suffered injury to his right shoulder on 14 July 2020.
The history recorded by Dr Kuo in his report of 1 September 2020 is also at odds with the account of injury at work on 14 July 2020 provided by the applicant. However, there was no contemporaneous clinical record of a sporting shoulder injury in 2018. There was a history taken by Dr Kuo, in that report, of a sporting injury the week prior to consultation with Dr Kuo, while recording this as “left shoulder instability”.
However, by the time of the initial consultation with Dr Kuo, the applicant had consulted Dr Nguyen for treatment, had been referred for an ultrasound, and had been referred to Dr Kuo. It seems to me that against a background of earlier sporting injury recounted by the applicant in his statement, and the course of treatment and referral noted above, as well as the absence of any other notation by the treating GP of sporting injury in August 2020, I must exercise caution when considering the history noted by Dr Kuo[2] in his report of 1 September 2020. I accept the applicant’s submissions in this regard. In my view this was a mistake as to history on the part of Dr Kuo, understandably so in the context of a busy orthopaedic surgeon when dealing with the applicant’s history.
[2] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
The respondent also made submissions as to what it said was the lack of explanation of the inconsistencies as to treating histories recorded, and also as to the lack of clarity as to when, or if, the applicant stopped playing football. As to the former, I understand the submission to relate particularly to the treating history prior to and including the report of Dr Kuo of 1 September 2020. I have dealt with the histories recorded in clinical notes and the report of Dr Kuo. The applicant did provide an explanation in relation to the injury of 14 July 2020, and the circumstances of injury were supported by the evidence of Mr Subang. As to the latter, in my view the question of whether or not the applicant continued to play football, which Dr Harrington noted had ceased in 2018, is not a relevant issue for determination as to causation, rather it was the treating history of dislocations in relation to playing football, which I have dealt with. If it was suggested that it was the applicant’s credit that was impugned, in relation to both these issues, then I note that I have exercised caution, to some extent, and found support in the evidence of Mr Subang. I note that the applicant’s credit was not impugned specifically with respect to the injury of 15 July 2023.
The respondent did not concede that the applicant sustained injury on 15 July 2023, although in its submissions it effectively did not challenge the applicant’s account of injury to his right shoulder on that day. In my view, the evidence arising from the clinical records, in particular from clinical notes commencing on 19 July 2023, clearly establishes that the applicant sustained injury to his right shoulder on 15 July 2023, consistent with the description of injury in the Application and in the applicant’s statement. There was an immediate onset of symptoms, with resulting incapacity for work and treatment, including recommendation for surgery.
The medical evidence, including certificates of capacity, and the opinions of Dr Kuo and Dr Papantoniou, was to the effect that the applicant sustained injury to his right shoulder on that day. Dr Harrington did not disagree that the applicant sustained injury to his right shoulder on that day, although Dr Harrington was of the view that employment was not the main contributing factor to the aggravation or exacerbation of the right shoulder condition.
The respondent submitted that Dr Harrington was the only medical expert who took a correct history of recurrent shoulder dislocations outside of work. The applicant said that this opinion was not well founded on the evidence, as the only contemporaneous clinical record showed football injury in 2014, and two dislocations in March and November 2016, and no contemporaneous clinical record of dislocation between November 2016 and July 2020. On Dr Harrington’s history, in any event, there was reference only to football shoulder injury in 2015 and “some instability” of the right shoulder in 2018, and also to the factual investigation report, dealt with above.
This in my view is not a history of recurrent shoulder dislocations outside of work, as referred to by Dr Harrington. Even if it were, in my view Dr Harrington has not explained the relative contribution of the incidents of July 2020 and July 2023 to the aggravation of the applicant’s right shoulder condition.
Dr Harrington agreed that two incidents in the course of employment were a contributing factor to the aggravation. Dr Harrington thought the current presentation was new pathology, rather than instability, and diagnosed a combination of impingement and cuff pathology. He was of the opinion that the rotator cuff problem could be caused by recurrent dislocations as such episodes can weaken the tendon.
However, Dr Harrington noted that the applicant had stabilisation surgery by Dr Kuo in February 2023, which made a difference, and the applicant then made a good recovery and returned to work 6 weeks later, after which the applicant sustained injury on 15 July 2023.
Dr Harrington did not explain or engage with, in my view, the question in the applicant’s case of whether the injury of 15 July 2023 was an aggravation of the underlying condition of the rotator cuff, rather he considered that injury was one among a number of incidents which contributed to that condition, or to the cause of that condition. Dr Harrington did not in my view explain his opinion that the “stabilisation procedure seems to have been helpful in regards to instability but his current presentation is new pathology. It's certainly interfering with everyday activities and he doesn't have strength or movement to work as a welder...” in the context of a history of injury on 15 July 2023, particularly with respect to the question of aggravation, and also in respect of what he identified as new pathology in the MRI of September 2023.
I note that it seems that Dr Harrington may not have been asked the relevant question in this regard, as the specific questions he was asked were directed to the injury of July 2020, although he did consider the injury of July 2023, as noted above. Dr Harrington agreed with the need for the proposed surgery, and also that the applicant had incapacity for work, in this case fitness for work for three days per week. Dr Harrington was of the view that the effects of work injury on capacity had ceased. Dr Harrington did not explain why that was the case.
For the above reasons, I do not prefer the opinion of Dr Harrington as to causation and capacity for work.
The applicant submitted that regardless of any finding as to injury in July 2020, the circumstances of injury on 15 July 2023, being immediate onset of symptoms and resulting treatment and incapacity, provide a fair climate for the opinion of A/Prof Papantoniou, it also the opinion of Dr Kuo when he is reports are read as a whole. The respondent submitted that there was not a fair climate for the opinion of A/Prof Papantoniou, as he was not provided with the history of recurrent dislocations and the history that he was provided was incorrect. The respondent also submitted that the opinion of Dr Kuo in his last report of 13 June 2024 was inconsistent with his earlier report and could not be relied upon.
In my view, there was a fair climate for A/Prof Papantoniou to provide his opinion. I have dealt with the submissions in relation to recurrent dislocations above. In addition, A/Prof Papantoniou in my view did in fact take into account prior shoulder dislocation and was of the opinion that the progression and aggravation of the glenoid bone abnormality and the Hill-Sachs lesion were attributable to the injury of July 2020, and which had been aggravated by the injury of July 2023. He was of the view that the injury in 2023 appeared to have destabilised the right shoulder and torn soft tissue in and about the joint. He was of the opinion that the applicants’ work injuries had aggravated osteoarthritis of the right shoulder.

A/Prof Papantoniou noted that although the 2020 work injury resulted in a large portion of the pathology, the applicant’s right shoulder had been stable and he was able to resume employment without restrictions, including heavy jobs without issue, but it was only after the July 2023 injury that the applicants shoulder became unstable. He was of the opinion that it was this instability that requires the proposed shoulder surgery. In my view, A/Prof Papantoniou clearly explained his reasoning process for which there was on the evidence a fair climate for him to provide his opinion in relation to the July 2023 injury.
In relation to the reports of Dr Kuo, the respondent referred to some inconsistency between reports. However, in my view there was no such inconsistency. The report of 13 June 2024 provided a clarification as to injury date for the injury of July 2020, in respect of which Dr Kuo was of the opinion that that incident resulted in the need for surgery and the MRI findings at that time. However, in my view this was a reference to the surgery of February 2023 which the applicant underwent, and not to the proposed surgery, which was dealt with in his report of 13 May 2024.
In his report of 13 May 2024, Dr Kuo consider a history of a number of dislocations in the past in respect of playing football, as well as injury at work in July 2020 and July 2023. He noted that following the surgery of February 2023 the applicant sustained a further work injury and he was of the opinion that this post-operative incident was the cause for the current incapacity and limitations and that the recommended surgery was the result of the incident on 15 July 2023.
The opinions of A/Prof Papantoniou and Dr Kuo are based upon reasoning and explanations which in my view are persuasive and I prefer those opinions to that of Dr Harrington. In particular, both doctors provided explanations of the injuries sustained and the effects of the injury on 15 July 2023.
A/Prof Papantoniou was of the opinion that the applicant’s employment was the main contributing factor to the current pain and disability, and that the work injury had aggravated pre-existing pathology. Although he did not distinguish between the two injuries, A/Prof Papantoniou continued that the work injury had aggravated the underlying osteoarthritis and that prior to 2023 the right shoulder had been stable in performing work duties. In my view, when read as a whole, this is an opinion that the injury of 15 July 2023 was the main contributing factor to the aggravation of the underlying osteoarthritis, and also that injury of 14 July 2020 was the main contributing factor to the aggravation of the underlying osteoarthritis at that time.
Dr Kuo was of the opinion that the post operative incident of 15 July 2023 was a substantial contributing factor to the current injuries, being a combination of cuff and recurrent instability pathology. In the same report, dated 13 May 2024, Dr Kuo was of the view that this incident was the cause of current incapacity and that the recommended surgery was the result of the incident of 13 May 2024. In my view, when read as a whole, the opinion of Dr Kuo supports a conclusion that the injuries of 14 July 2020 and 15 July 2023 was the main contributing factor to the aggravation of the underlying right shoulder condition at the relevant times.
There was no controversy between Dr Harrington, A/Prof Papantoniou and Dr Kuo that the imaging scans following the July 2023 injury displayed new pathology when compared to the imaging scans following the July 2020 injury.
Taking a common sense view of causation,[3] in circumstances where the applicant underwent surgery to his right shoulder in February 2023, following which he resumed his employment some six weeks later and was able to perform his normal duties thereafter, and having regard to the medical evidence that medical investigations demonstrated new pathology following the July 2023 injury, in my opinion the applicant sustained injury on 15 July 2023 in the course of his employment.
[3] Kooragang Cement Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
It was observed in AV v AW[4] that
“…The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
… In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[4] [2020] NSWWCCPD 9 at [78].
Having regard to the opinions of A/Prof Papantoniou and Dr Kuo, and considering the injury of 15 July 2023 took place following surgery to the right shoulder in February 2023, and following stabilisation and return to work, I find that the employment on 15 July 2023 was the main contributing factor to aggravation of the pre-existing disease condition of the applicant’s right shoulder.
In Taxis Combined Services (Victoria) Pty Ltd v Schokman[5] (Taxis Combined), it was stated that:
“The Arbitrator was correct to observe that the presence of a pre-existing condition did not mean that the need for treatment did not ‘result from’ the injury in the sense discussed in Kooragang. The appellant’s submissions have ignored the fundamental principle that employers must take workers as they find them (Spigelman CJ (Bryson AJA agreeing) in State Transit Authority (NSW) v Chemler…”
[5] [2014] NSWWCCPD 18 at [51].
In Taxis Combined,[6] it was also observed that:
“…It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). More importantly, the injury does not have to be the only, or even a substantial, cause of the need for the proposed treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. As the section states, and the Arbitrator acknowledged (at [55] and other places), Mr Schokman only has to establish that the proposed treatment is reasonably necessary ‘as a result of’ the injury…”
[6] At [53].
Dr Kuo and A/Prof Papantoniou were clear that the need for the proposed surgery was the result of the injury of 15 July 2023. There was no dispute as to the reasonable necessity of the proposed surgery.
I find that the surgery proposed by Dr Kuo is reasonably necessary as a result of injury on 15 July 2023.
In relation to capacity, in my view the cause of the incapacity for the period claimed was the injury of 15 July 2023. This is supported by Dr Kuo who was of the view that the reduced hours were the result of that injury; and by A/Prof Papantoniou, who related restrictions to instability resulting from the injury of 15 July 2023. This supports the common sense view that the applicant had returned to his normal duties, with difficulty, after the surgery of February 2023, when he sustained the injury of 15 July 2023, and was not able to resume duties resulting in an economic loss for the period claimed.
There was no dispute as to pre-injury average weekly earnings, nor was there dispute as to actual earnings for the period claimed. There was also no controversy on the medical evidence that the applicant had sustained an incapacity for work. Dr Harrington was of the view that the applicant had capacity for his current role at that time of three days per week, eight hours per day. Dr Kuo was of the view that the applicant had capacity for reduced hours and duties, although no further details were given. A/Prof Papantoniou was of the opinion that the applicant would be restricted in his activities and that he was not fit for pre-injury duties, with restrictions “in movements that are likely to sublux or dislocate his right shoulder. Activities such as pulling or pushing or forcible rotation of the right shoulder are likely to be dangerous.”
The applicant in his statement dated 1 August 2024 outlined his work activities and hours, which were variable, in accordance with duties that were made available by his employer. The restrictions outlined by the applicant, consistent with his certificates of capacity, provided for limited capacity of less than 5kg. His evidence was that even on light work he had difficulty, and his initial full time hours were reduced to three days, eight hours per day, per week. There were periods when no duties were made available by the respondent, and another period of administrative work, in which there was not much to do, and it was eventually withdrawn.
In my view, the applicant was working in the relevant period to the limit of his capacity, and there were no realistic jobs available for the applicant having regard to the requirements of s 32A of the Workers Compensation Act 1987 and the reasoning of Wollongong Nursing Home Pty Ltd v Dewar.[7] Accordingly, the measure of the applicant’s ability to earn in suitable duties was his actual earnings in the period in question.
[7] [2014] NSWWCCPD 55

[2024] NSWPIC 529

23 September 2024