s 60 of the Workers Compensation Act 1987 (the 1987 Act).

A brief statement is attached setting out the Commission's reasons for the determination.

1. The applicant, Kevin Collison is currently 66 years of age.
2. He is right-handed.
3. The applicant states that apart from suffering from a hernia when he was 30 years old, he did not have any other physical health issues.
4. The applicant has worked as a plumber since 1975. In that year he commenced his apprenticeship as a plumber with James Hardie in Camellia. He completed his apprenticeship in 1980 and remained with James Hardie for two further years until 1982. Thereafter the applicant worked in various plumbing roles in New South Wales, Queensland New Guinea and in the Torres Strait Islands.
5. He has worked constantly and consistently for 47 years throughout his adult life and has not spent any long periods out of employment.
6. He commenced working with Genesis Plumbing NSW Pty Limited, the respondent in approximately February 2020. He worked there until mid-2021 when he then obtained work with CDC Plumbing for six months before returning to the employ of the respondent in around March 2022.
7. He was employed as a foreman but also performed the work as a plumber, drainer and gas fitter.
8. On the day of the accident on 30 September 2022, the applicant was working on a public housing site at Chester Hill. It had been raining on and off. At the time of the accident the applicant was working on formwork to pour a slab. The applicant had walked out of the mud and onto the plywood deck. As he turned, he slipped over landing directly onto his right knee and his left leg "went south" as he hit the deck.
9. He advised his co-worker William Carr that he had hurt his right knee and back. He stayed on site for the remainder of his shift and then drove himself home. It was the Friday of a long weekend.
10. The applicant advises that after the first two or three days after his injury he had a lump on his right knee, his back pain was getting worse, and he also began to feel pain in his neck.
11. Over the long weekend he rested and soaked in the bath so that he could return to work on the following Tuesday.
12. However, due to the pain he was experiencing he has not been able to return to work since 30 September 2022.
13. He came under the care of his treating general practitioner Dr Lin of St Marys Medical Centre (Astley Medical Centre). The applicant advises that Dr Lin did not assist him with the workers compensation aspect of his injuries and did not assist completing the required paperwork.
14. On 11 November 2022 the applicant changed general practitioners and consulted Dr Calvache and various other doctors at Workers Doctors at Parramatta.
15. The applicant reported neck, lower back and right knee injuries to Dr Calvache that he had experienced after he slipped over on a wooden deck at work. Dr Calvache also examined both of the applicant's shoulders.
16. On 15 November 2022, following review with Dr Lim from the Workers Doctors practice, he was referred for physiotherapy, psychological review, spinal surgeon review with Dr Tait and an MRI scan of the cervical spine. Dr Lim also examined both of the applicant's shoulders.
17. Dr Lim arranged for the applicant to undergo an MRI scan of his lower back which was carried out on 21 October 2022 and also an MRI scan of his neck which was carried out on 29 November 2022.
18. On 8 December 2022 the applicant was seen by Dr Tait, neurosurgeon predominantly in relation to his neck and back pain. The applicant did report pins and needles affecting the base of his left thumb. Dr Tait arranged a whole-body bone scan which was carried out on

14 December 2022. Following receipt of the bone scan Dr Tait recommended a C6/7 anterior cervical discectomy and fusion. The respondent denied liability for the proposed surgery. The applicant has not proceeded with the surgery recommended by Dr Tait. 19. Over time, the applicant's neck pain became more pronounced and persistent and was accompanied by radiating pain down his left arm and a burning sensation and sharp pain in the left bicep. He continued to experience pins and needles in his arms. He became depressed as a result of the respondent's decision to deny liability for the neck surgery and consulted a psychologist. 20. The applicant advises that by June 2023 he began to experience severe left shoulder pain which radiated from his neck and down his left arm. 21. On 10 October 2023 the applicant was examined by Dr Bodel at an independent medical appointment arranged by his solicitors. Dr Bodel diagnosed a rotator cuff injury to the left shoulder. Dr Bodel confirmed the history of constant pain in the neck, the back, the left arm and the left leg. 22. On 1 March 2024 the applicant's solicitors made a claim for lump sum compensation in respect of injuries to the lumbar spine, right knee, left shoulder and cervical spine arising out of the accident on 30 September 2022. 23. On 6 June 2024 the respondent issued a s 78 notice pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the lump sum claims in respect of the cervical spine and left shoulder. 24. On 4 July 2024 the applicant consulted Dr Waller at Workers Doctors and advised Dr Waller that he had been experiencing the left arm symptoms for the last 12 months. 25. On 13 August 2024 the applicant underwent an MRI scan of the left shoulder which showed a small thickness tear involving the supraspinatus tendon. There was also a finding of increased fluid within the subacromial/subdeltoid bursa which may be related to bursitis. 26. The applicant was referred to orthopaedic surgeon Dr Moopanar who he first saw on

29 October 2024. Dr Moopanar recommended arthroscopic surgery to release the long head of the biceps tendon, repair the rotator cuff in the subacromial space, and perform a distal clavicle resection and subacromial decompression on the left shoulder. 27. Dr Moopanar forwarded his request for surgery to the respondent on 29 October 2024. 28. The applicant underwent left shoulder surgery on 20 November 2024, under the care of Dr Moopanar. 29. On 6 February 2025, the respondent denied liability for the surgery proposed by Dr Moopanar by way of s 78 notice. 30. On 2 May 2025, the applicant commenced proceedings in the Personal Injury Commission (the Commission) seeking an order that the respondent pay for the surgery and expenses associated with the left shoulder surgery performed by Dr Moopanar.

1. The parties agree that the following issues remain in dispute:

(a) injury to left shoulder

(b) reasonable necessity of the left shoulder surgery and was it reasonably necessary as the result of an injury to the applicant's left shoulder.

1. The respondent had previously put in issue s 60 (2A) (a) of the 1987 Act, failure by the applicant to obtain approval for the surgery prior to undergoing the surgery. During oral submissions the respondent withdrew this matter in dispute.
2. The applicant had sought a declaration pursuant to s 162 of the 1987 Act that the respondent had entered into a contract of insurance with EML for the respondent's liability to the applicant under the 1987 Act. The applicant provided an ASIC search, and the respondent confirmed that at the time of the applicant's injury, the respondent held workers' compensation insurance with EML. In submissions, both parties agreed that an order pursuant to s 162 was not necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. A preliminary conference was held on 10 June 2025. At that time the matter did not resolve and was set down for conciliation/arbitration on 5 August 2025.
2. 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.
3. At the arbitration hearing, the applicant was represented by Mr De Meyrick of counsel instructed by Ms Baptiste from Turner Freeman Lawyers. The applicant, Mr Kevin Collison was present with his wife, Mrs Collison. The respondent, GP 2023 Pty Ltd IN LIQUIDATION ATF Genesis Discretionary (formally Genesis Plumbing NSW Pty Ltd), was represented by Mr Doak of counsel instructed by Ms Tancred from Hickson Lawyers. The workers compensation insurer EML was represented by Ms Wadick.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents;

(b) Reply and and attached documents;

(c) Application to Lodge Additional Documents and annexure filed by the applicant on 28 July 2025, admitted by consent, and

(d) Application to Lodge Additional Documents and annexure filed by the respondent on 29 July 2025 admitted by consent;

1. There was no oral evidence called at the arbitration. Both counsel made oral submissions which were sound recorded, and a copy of the recording is available to the parties.

1. The applicant relies on three statements from the applicant dated 6 January 2023, 3 July 2024 and 1 April 2025. The applicant also relies on three medico legal reports from Dr Bodel, orthopaedic surgeon, dated 23 January 2024, 23 August 2024 and 4 February 2025. The applicant also relies on numerous reports and clinical notes from his treating doctors and medical providers together with radiological studies. The applicant has also provided a schedule of hospital, medical and travel related expenses claimed. I have considered all of this evidence.

1. The respondent relies on a s 78 notice dated 6 June 2024, a s 287A review notice dated

19 September 2024 and a further s 287A review notice dated 6 February 2025. The respondent also relies on a factual investigation report from Procare dated 10 February 2023 which includes a statement of William Carr dated 24 January 2023 and a statement of Peter Le Guier dated 18 January 2023 who both worked with the applicant. The respondent relies on the following medical evidence: three independent medical reports from Dr Haig, orthopaedic surgeon, dated 23 March 2023, 17 April 2024 and 3 June 2025. The respondent also relies on an independent make a report from Dr Young, psychiatrist, dated

30 January 2023. The respondent also relies on the MRI scan of the cervical spine dated

29 November 2022 and the MRI of the left shoulder dated 13 August 2024. Further, the responded relies on an initial assessment report from ReCare dated 3 May 2023 and a workplace assessment report from ReCare dated 11 July 2024. I have considered all of this evidence.

1. The applicant submits that I should accept the applicant's account as to how the accident occurred from the statements of evidence from the applicant dated 6 January 2023,

3 July 2024 and 1 April 2025. 2. The applicant points out in that statement of 6 January 2023 at paragraph 54 the applicant states as follows: "As I walked out of the mud and up onto the deck, I turned and slipped over landing directly on my right knee and my left leg went south as I hit the deck. It felt like my whole body jarred because I fell down with such force. My knees and back were the worst.... After the first two or three days of my injury I was standing in the kitchen and felt pins and needles along with a burning sensation and numbness going down my left leg. I still have (sic) a lump on my knee. My back pain also became worse, and I began to feel pain in my neck after the accident. I think the bad pain in my knees and back distracted me at first. My neck felt stiff (at) to begin with but just kept getting more painful." (page 11 of the ARD). 3. The applicant points out in paragraphs four (a) and (b) of the supplementary statement dated 1 April 2025 the applicant says as follows: "(a) Some months after the date of my work injury, being 30 September 2022, although I cannot recall exactly when, I began to feel left arm pain... I confirm the symptoms first began as tingling and pins and needles which extended all the way into the fingers on my left hand. I also felt sharp pains in the area of my left bicep and generalised pain in the entirety of my left arm. (b) Although I continuously reported my left arm symptoms to my general practitioner and physiotherapist, I was always told it was simply connected to my neck condition." 4. The applicant submits that in his statement dated 1 April 2025 the applicant explains the following "Despite my ongoing complaints of left arm pain, it was not until I consulted Dr James Bodel on 10 October 2023 that a doctor actually suggested I had sustained a separate injury to my left shoulder. Dr Bodel opined my left arm pain was not solely caused by my neck condition. Following my consultation with Dr Bodel, it took many more months of complaining to my GP for him to agree to refer me for an MRI scan of my left shoulder." 5. The applicant provided a chronological summary of the medical treatment the applicant had received since the accident. The applicant points out that the injury to the neck was mentioned as early as 6 January 2023 in the statement provided by the applicant to the respondent's investigator Procare. The applicant submitted that the medical treatment the applicant underwent was initially directed to his knee and back and then his neck. The applicant submits that there are numerous references in the clinical notes to symptoms the applicant was experiencing in his left arm however these symptoms were medically treated as referable to the neck rather than the applicant's left shoulder. 6. The applicant submits that Dr Lim had recorded that the applicant had complained of pain on the external rotation of his left shoulder on examination on 15 November 2022 (page 132 of the ARD). This was six weeks after the accident. 7. The applicant submits that the applicant's treating neurosurgeon, Dr Tait, did not specialize in shoulders and was treating the applicant for his back and neck. Despite this, in his report dated 4 October 2024 (page 85 of the ARD), Dr Tait opined the following in relation to the left shoulder symptoms. At his first review on 8 December 2022 "there was not noticeably restricted movement of the left shoulder" this has "steadily deteriorated since" the injury. "His shoulder arthropathy appears to have developed since the accident. It is quite possible that he has developed a frozen shoulder as a result of radicular symptoms. This is a common association. I'm not a shoulder specialist and do not feel able to comment on shoulder pathology except in very general terms" (page 86 of the ARD). 8. The applicant submitted that Dr Lim in his report dated 15 December 2024, reached the following conclusion: "He sustained Neck, lower back, L) shoulder and R) knee aggravations after he slipped over a deck at work. This was on the background of years of repetitively bending and twisting as a plumber. Work was the main contributing factor for the deterioration of his Neck, lower back, L) shoulder and R) knee conditions. As a result of his work-related neck/lower back and R) knee injuries he has developed an adjustment disorder from chronic pain." The applicant submitted that this opinion was consistent with the development of the symptoms of which the applicant now complains. 9. The applicants submitted that Dr Moonpanar the applicant's treating shoulder orthopaedic surgeon, in his report dated 29 October 2024 (page 97 of the ARD) also supports the applicant's claim that his left shoulder problems developed after the accident on the

30 September 2022. In that report Dr Moonpanar opines "Kevin sustained a work-related injury to his left shoulder, resulting in significant pain attributed to altered biomechanics. He has never experienced shoulder pain prior to this incident... but...he now presents with severe isolated shoulder pain... I believe that Kevin's condition is a direct consequence of his work-related injury, and it is crucial that we address this surgically." 10. The applicant then took me to the reports from Dr Bodel. The applicant submitted that Dr Bodel was a very well-respected orthopaedic surgeon. In his first report dated

23 January 2024 (page 66 of the ARD), Dr Bodel confirmed that he examined the applicant, Kevin Collison, on 10 October 2023. He takes a full history of how the accident occurred together with a detailed summary of the medical treatment the applicant had received since the accident. Dr Bodel records that the applicant reported constant pain in his neck, back, left arm and left leg together with a numbness and burning sensation. Under the heading "Current Complaints" Dr Bodel records "Continuing neck pain and left shoulder and arm pain." On examination he noted a slight restriction of shoulder movement on the left-hand side, and this is recorded in a table showing active range of movement measured. Dr Bodel diagnosed "a disc injury in the cervical and lumbar spines and a rotator cuff injury to the region of the left shoulder." 11. The applicant submits that as of 10 October 2023, the date of the appointment with Dr Bodel, this was the first time a doctor had considered that the applicant may have pathology in his left shoulder as opposed to the left arm symptoms being referable to the radicular symptoms from the neck. 12. The applicant submits that the supplementary report from Dr Bodel dated 23 August 2024 (page 75 of the ARD), correctly identifies and addresses causation in relation to the neck and the left shoulder. In that report Dr Bodel opines, "Mr Collison has suffered an injury of the cervical spine in the fall that occurred at work on 30.09.2022. He fell very heavily injuring his back, knees and cervical spine. In the area of the cervical spine the injury is the aggravation, exacerbation and deterioration of an underlying disease process, which is degenerative disc disease. Similarly, he also injured the left shoulder in that same fall and in a person of this age this is probably also due to the aggravation, separation and deterioration of underlying degenerative rotator cuff pathology... I am satisfied that the fall directly caused injury to the left shoulder aggravating the underlying rotator cuff pathology and that the shoulder pain is not solely referred pain from his cervical spine condition. He has signs of localised pathology in the left shoulder on my clinical assessment. 13. The applicant also submits that the opinion expressed by Dr Bodel is supported by the results of the MRI scan dated 13 August 2024 (page 109 of the ARD). 14. The applicant submits that Dr Bodel had the benefit of the treatment reports from Dr Moopanar which included the operation report when preparing his report dated

4 February 2025 (page 78 of the ARD). Dr Bodel states that "the treatment reports from Dr Moopanar confirm... the pathology in the region of the left shoulder for which the arthroscopy has been undertaken. The operation report confirms the treatment undertaken on 20 November 2024 and is consistent with the clinical findings seen here today." 15. The applicant submits that the report from Dr Bodel dated 4 February 2025 (page 79 of the ARD) also addresses the reasonable necessity of the surgery. Dr Bodel has recorded that the applicant is making steady progress, the surgery was reasonably necessary for the management of his injury, the surgical fees quoted are reasonable however appear to only reflect part of the costing. Dr Bodel also confirms that the applicant's employment and history of injury materially contributed to the need for the surgery. 16. The applicant then submitted that I should consider the decision of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch) in relation to injury by way of aggravation or exacerbation of a disease. 17. The applicant further submitted that I should consider the decision of Deputy President Roche in the matter of NSW Local Health District v Iles [2013] NSWWCCPD 58 (Iles), where DP Roche addresses aggravation of an underlying condition. 18. The applicant submits that the consideration of an aggravation type injury explains the difference of opinions held by Dr Bodel and Dr Haig in relation to causation. Dr Bodel maintains that the underling pathology in the applicant's left shoulder has been made symptomatic as a result of the fall whereas Dr Haig maintains that the symptoms the applicant is experiencing is the sole result of age-related degenerative changes. 19. The applicant points out that Dr Haig's opinion may hold some sway if there were no complaints of pain in the left arm prior to the appointment with Dr Bodel in October 2023. There is however the applicant's description of pain in his neck and his left arm. He was referred to a neurosurgeon who, by his own admission, specialised in necks and backs not shoulders. The focus of the applicant's treatment for his left arm symptoms was treatment for his neck. 20. The applicant submits that despite the absence of the complaint of left shoulder pain in the applicant's first statement and early clinical notes there is a valid explanation for that. The applicant's left arm complaints were considered to be related to his neck pathology. 21. The applicant submits that there is no prior history of left shoulder pain, nor is there a record of any intervening event to explain the onset of left shoulder pain apart from the significant fall on 30 September 2022. 22. The applicant submits that Dr Haig confirms there is pathology in the left shoulder but the symptoms from which the applicant complains are solely related to the age-related changes and not the result of the fall and/or any aggravation to those age-related changes as a result of the fall on 30 September 2022.

1. The respondent submits that I would not accept that the applicant injured his left shoulder in the fall. The respondent submits that there was no increase in symptoms following the fall nor any contemporaneous record of an injury to the left shoulder.
2. The respondent submits that it is not clear that the report of Dr Lim dated 15 November 2022 that the applicant had referred to in submissions was referable to the left shoulder. The respondent submits the clinical finding in the report that reads "Internal rotation normal with pain" is more likely to be referable to the right shoulder.
3. The respondent submits that I do not have before me a report or clinical notes from the applicant's first treating general practitioner, Dr Lin who had been the applicant's treating doctor for at least 13 years before the accident and was the first doctor that the applicant consulted a fortnight after the accident.
4. The respondent submits that at the applicant's first attendance at Workers Doctors with Dr Calvache on 11 November 2022, there is no reference to the left shoulder which casts considerable doubt on the applicant's claim. There is a reference to right shoulder pain and a positive result on the Hawkins test for subacromial impingement for the right shoulder.
5. The respondent then took me to the inconsistencies between the medical evidence and the applicant's three statements. The respondent noted that in his first statement dated

6 January 2023, the applicant did not mention his left shoulder. In his statement dated

3 July 2024, the applicant noted his injuries in paragraph 4 (a) as lower back, right knee and neck but did not mention the left shoulder in this paragraph. In paragraph 4 on page two of the statement (page 15 of the ARD), the applicant claims he first began to feel pain in his left shoulder around June 2023, some nine months after the accident. 6. The respondent submits that the third statement of the applicant holds a further inconsistent statement. In that statement dated 1 April 2025, (page 17 of the ARD) the applicant now claims the left shoulder pain came on "some months" after the accident. The applicant claims he reported his left arm pain to his GP and his physiotherapist. The respondent points out the applicant does not identify the name of the GP or physiotherapist that he reported it to, and I do not have the clinical notes from his first GP, Dr Lin. The respondent notes the applicant then states that as the left arm pain started to get worse, he avoided movement of the left shoulder which would suggest a consequential loss that the applicant is not relying on rather than an injury to the left shoulder that occurred on 30 September 2022. 7. The respondent further submits in relation to the third statement of the applicant that the contents of paragraph 4 (j) (page 18 of the ARD), cannot be accepted. In that paragraph the applicant states "I confirm I have had ongoing left arm and left shoulder pain since the onset of my symptoms following my work accident on 30 September 2022." The respondent submits that this evidence is self-serving and false. The respondent submits that this raises the issue of credit. 8. The respondent further submits that Dr Bodel does not provide an explanation as to why there would be a hiatus in symptoms between the date of the accident and the onset of symptoms in the left shoulder some nine months later. The respondent relied on the decision in South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 (Edmonds) 9. The respondent further submits that Dr Bodel does not explain how he reached the conclusion that the applicant had a rotator cuff injury to the left shoulder (Page 70 of the ARD). The respondent points out on examination of the left shoulder, Dr Bodel only found slight restrictions of movement (page 69 of the ARD). 10. The respondent submits the report of Dr Bodel dated 23 August 2024 (page 75 of the ARD) is also unreliable and Dr Bodel's opinion "he also injured the left shoulder in that same fall and in a person of this age this is probably also due to the aggravation, acceleration, exacerbation and deterioration of the underlying degenerative rotator cuff pathology" can be seen as nothing more than a reverse engineering of the doctor's diagnosis of a rotator cuff injury referable to an injury on 30 September 2022 and an aggravation, acceleration, exacerbation and deterioration of an underlying degenerative rotator cuff pathology. 11. The respondent then further submits that the comments made by Dr Bodel in relation to Dr Haig's opinion who had concluded that he had no reason to believe the applicant sustained an injury to his left shoulder, are bare assertions and unsupported on the evidence. In response to Dr Haig's opinion, Dr Bodel states "I am satisfied that the fall directly caused injury to the left shoulder aggravating the underlying rotator cuff pathology and that the shoulder pain is not solely referred pain from his cervical spine condition. He has signs of localised pathology in the left shoulder on my clinical assessment." The respondent submits that this confirms that Dr Bodel did not have any scans or investigations upon which to base his opinion and the doctor is making a bare assertion not unlike the type that was ruled impermissible in cases such as Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305 (Makita). 12. The respondent then took me to the clinical notes from Workers Doctors and notes the first reference to the left shoulder is at an attendance on 23 September 2024 with Dr Mo. The appointment was after the appointment with Dr Bodel. By this stage, the respondent submits, that Dr Bodel's report may have contaminated the applicant's view as to why he was having problems with his left shoulder. The applicant underwent an MRI scan of the left shoulder on 13 October 2024 which the respondent notes is two years after the date of accident. 13. The respondent submits that the reports from Dr Moopanar are similarly unreliable. Dr Moopanar has simply assumed that the left shoulder problems are referable to the accident on 30 September 2022. 14. The respondent submits that I should accept the opinions expressed by Dr Haig in his two reports dated 23 March 2023 (page 52 of the reply) and 17 April 2024 (page 58 of the reply). In the first report, Dr Haig takes no history of injury to the left shoulder and notes that the applicant is unaware of any upper limb weakness. In both reports Dr Haig expresses the opinion that there is no reason to believe the applicant sustained an injury to his left shoulder on 30 September 2022 and there was no aggravation as there was no trauma to the left shoulder on that day. 15. The respondent then submitted that Rule 73 of the Personal Injury Commission rules should be considered when reviewing Dr Bodel's reports. The Rule reads as follows:

73 Guiding principles for applicable proceedings The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles -

(b) evidence should be relevant to the facts in issue and the issues in dispute,

(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,

1. The respondent also referred to the decision of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock) and noted that this is authority for the proposition that in a non-evidence-based jurisdiction the acceptance of expert evidence is a question of weight not admissibility.
2. The respondent referred to several other authorities in relation to expert opinions and submitted that on the basis of these decisions that I would not accept the opinion of Dr Bodel. Dr Bodel has taken the finding of a slight restriction in the applicant's left shoulder and conflated that finding into an injury without any proper basis, without investigation or history.
3. The respondent submits that I would not be comfortably satisfied that the applicant has made out an injury to the left shoulder and reject the claim for the left shoulder surgery.
4. The respondent did not make submissions in relation to whether the surgery was reasonably necessary.

1. In relation to the legal authorities relied on by the respondent in respect of the medical reports prepared by Dr Bodel, the applicant submits that Dr Bodel sets out the history of the injury, the findings on examination and then offers an opinion as to what injuries the applicant has sustained.
2. In relation to the respondent's submission that Dr Bodel did not have any radiological evidence upon which to base his opinion in relation to the left shoulder, the applicant states that "Once upon a time there was no such thing as an MRI" yet doctors were able to make a diagnosis. Dr Bodel, whose career predates the introduction of MRI scans, has based his opinion on his clinical findings and the applicant submits in reply that "the proof is in the pudding". The applicant submits that Dr Bodel's opinion proved to be correct. The MRI scan did demonstrate pathology. Dr Bodel stated in his opinion there is pathology in the left shoulder which is not explained or fully explained by radicular pain.
3. The applicant then addresses the reports from Dr Haig and in particular the report dated

17 April 2024 (page 45 of the ARD). In that report Dr Haig says, "I believe his left shoulder complaints arise, not from the shoulder, but rather are related to his cervical spondylosis." Dr Haig has acknowledged the applicant has left shoulder complaints. The applicant submits that Dr Bodel got the diagnosis right and Dr Haig got the diagnosis wrong. 4. The applicant submits in reply that on close reading of the applicant's statements there is no inconsistencies in those statements. The applicant is not a doctor. He will be partially informed by what his doctors tell him. He has explained that the pain in his left shoulder did not start immediately. He explains the pain in his neck and the onset of symptoms in his left arm. 5. The applicant submits that I would be very slow to uphold a credit finding against the applicant. The applicant was not cross examined. The applicant submits that there were no inconsistencies in what the applicant has said. The applicant submits it was an involved description of the injury that was partially informed by what he had been told by his doctors. 6. In relation to the entry in Dr Lim's clinical notes as to whether or not the reference to "pain on movement" is in the left shoulder or right shoulder, the applicant submits that there is no ambiguity. The reference to "pain on movement" is directly under the left shoulder examination section of the clinical notes. The applicant concedes that the entry could be read as relating to both shoulders however the applicant's prime submission is that the entry relates to the left shoulder.

1. Having considered the submissions and the evidence before me on the balance of probabilities I find that the applicant has sustained an injury to his left shoulder on

30 September 2022 by way of an aggravation, acceleration, exacerbation or deterioration of a degenerative process in his left shoulder. I further find that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease process in the left shoulder. I make these findings for the following reasons. 2. I accept the statement evidence of the applicant. I reject the respondent's submission that the statement evidence of the applicant is inconsistent, unreliable and self-serving. 3. I note in the applicant's first statement provided to an investigator on behalf of the respondent dated 6 January 2023, the applicant says as follows: "54. As I walked out of the mud and up onto the deck, I turned and slipped over landing directly onto my right knee and my left leg went south as I hit the deck. It really hurt and felt like I had hit a nerve or something. It felt like my whole body jarred because I fell down with such force (my emphasis). My knees and back were the worst. I was working with William Carr at the time and he seen (sic) me slip over. After I got myself up and had said a few choice words, my knee and back were really hurting so I needed to take some time out. I stayed on site for the remainder of my shift and then drove myself home. My back was hurting but my knee was hurting even more. My knee was really swollen but I was hoping with some rest it was all going to get better." "55. After the first 2 or 3 days of my injury, I was standing in the kitchen and felt pins and needles along with a burning sensation and numbness going down my left leg. I still have a lump on my knee. My back pain also became worse, and I began to feel pain in my neck after the accident. I think the bad pain in my knees and back distracted me at first. My neck felt stiff (at) to begin with but just kept getting more painful." The applicant had therefore reported that his neck symptoms commenced two to three days after the accident. 4. The applicant's account of the significant fall he experienced in the accident accords with the statement provided by William Carr who was working with the applicant on the day of the accident. Mr Carr's statement is dated 24 January 2023 (page 37 of the reply). In that statement Mr Carr recorded "I had my head down and (was) working on PVC piping when I heard him fall. It was a bit of a bang on the form work. I didn't see him fall. When I looked over when I heard him fall, he was on one knee like he was proposing. He swore when it happened probably from the pain. I don't remember which knee was on the form work." It is apparent to me that the applicant fell with some force, resulting in a noise loud enough for a work colleague to hear on a building site. I accept that the applicant jarred his whole body in the fall. 5. I note from the applicant's statement dated 6 January 2023, he was 175cm tall and weighed 105 kilograms. The clinical notes from Workers Health record that he was 106 kilograms on

6 December 2022 (page 93 0f the ARD) but had put on ten kilograms since the accident (page 238 of the ARD). It is fair to say, the applicant was of a solid build at the time of the accident. 6. I accept the applicant's account of the accident that he fell with significant force, jarring his whole body. The left shoulder is a part of the applicant's body. 7. The respondent has also provided a statement taken by the investigator from Mr Peter Le Guier dated 18 January 2023 (page 40 of the reply). Mr Le Guier had known the applicant for over 30 years. Mr Le Guier was a project manager for the respondent. I note in the statement Mr Le Guier says he can rely on the applicant. Mr Le Guier also confirms "he's pretty fit and solid." Mr Le Guier did not witness the accident however he does provide some insight into how the applicant minimized his symptoms when Mr Le Guier spoke to him over the long weekend after the accident. The applicant advised Mr Le Guier that "He should be right" and "He didn't elaborate it too much when I spoke to him, he just shrugged it off, but he ended up worse than he thought." I accept that the applicant initially minimised his symptoms in the hope of returning to work. 8. I note that I do not have before me the clinical notes of Dr Lin who had been the applicant's general practitioner for at least 13 years before the accident. The applicant advises that he saw Dr Lin in relation to his injury a fortnight after the accident however I accept the applicant's account that Dr Lin was not interested in assisting him with his workers compensation claim. It would appear that she arranged for an x-ray and an MRI scan. I note the MRI scan of the lumbar spine is dated 22 October 2022 which predates the applicant changing doctors from Dr Lin to Workers Health (page 109 of the ARD). 9. I accept the applicant's evidence that after being advised by Dr Lin that she would not assist in completing the paperwork for a workers compensation claim he changed treating doctors to the general practitioners at Workers Health. He first attended Workers Health on

11 November 2022. 10. I do not accept the respondent's submission that the absence of the clinical notes from Dr Lin is a serious gap in the applicant's case. The applicant has advised why he changed doctors, and I accept that reason. Neither party has annexed the clinical notes from Dr Lin to the papers before me. I have been given no explanation for the absence of these documents. I do note however that both parties were at liberty to obtain and rely on those notes. The applicant could have sought a copy of the clinical notes direct from Dr Lin and the respondent could have requested a direction for production at the preliminary conference. In any event, the notes are not before me and in light of the applicant's evidence that Dr Lin was not interested in getting involved in a workers' compensation case, I am of the view that the clinical notes would not have advanced the case either way. The applicant has also stated that the symptoms he experienced in his left shoulder did not come on until later, and, on any reading of the evidence, the left shoulder symptoms came on after the applicant had stopped seeing Dr Lin which would have been in late October/early November 2022. 11. I accept the general proposition put forward by the applicant that following the accident, the applicant's treatment was focussed on his right knee, lower back and neck. 12. The applicant's first attendance at Workers Doctors was on 11 November 2022 when he attended an appointment with Dr Calvache (see page 238 of the ARD). 13. The respondent relies on this attendance in support of the argument that the applicant did not injure his left shoulder on 30 September 2022. I do not accept this submission. At that appointment Dr Calvache took a history of right shoulder pain and the clinical note also confirms that Dr Calvache examined both shoulders. He noted a normal left shoulder examination with normal muscle bulk however he did record "internal rotation normal with pain". The respondent submits that it is not clear if this relates to the left or right shoulder however it does appear in the clinical notes under the entry relating to the left shoulder. I do note at that time Dr Calvache did not feel the need to arrange for any scans of the left or right shoulders. I have considered the entry in Dr Calvache notes, and I accept the applicant's submission that the entry in relation to "internal rotation normal with pain" is referable to the left shoulder or in the alternative both shoulders as later in the clinical note, Dr Calvache records a positive right shoulder for subacromial impingement after performing the Hawkin Test. I note at this point, as of 11 November 2022, Dr Calvache performed an examination of both shoulders. 14. The clinical finding of pain on internal rotation of the left or both of the shoulders is repeated in the clinical notes in respect of the applicant's attendance with Dr Lim on

15 November 2022. On that day the applicant participated in a telehealth appointment with Dr Lim (page 237 of the ARD). Dr Lim provided the applicant with a workcover certificate of capacity, a referral for an MRI and referral to Dr Matthew Tait, neurosurgeon. Unfortunately, there is no record of the symptoms complained of by the applicant at that time however following this appointment the applicant underwent an MRI scan of his cervical spine. At that time Dr Lim did not consider referring the applicant for an MRI scan of his left or right shoulder. 15. The next appointment at Workers Doctors was on 23 November 2022 when he attended the physiotherapist Ms Parcio-Cooke (page 235 of the ARD). At that attendance the physiotherapist took a history of neck pain. At that time the applicant was not experiencing pins and needles or numbness in the arms however the physiotherapist reports the applicant was experiencing symptoms in his left middle finger and left thumb. 16. On 25 November 2022, the applicant was then seen by a psychologist at Workers Doctors, Mr Carl Nielsen (page 233 of the ARD). Mr Nielsen diagnosed an adjustment disorder with depressed and anxious mood as a result of the work-related injury. He also noted a deterioration in the applicant's mental state characterised by low mood and poor concentration. 17. The applicant's clinical notes from Workers Doctors after these initial consultations support regular attendance by the applicant and the recorded clinical notes primarily focus on the applicant's neck. The clinical notes also disclose numerous entries relating to symptoms the applicant was experiencing in his left hand, left arm, left thumb and left fingers however it would appear that the treating doctors from Workers Doctors had formed the opinion that these problems were emanating from the neck. 18. Similarly, the applicant attended physiotherapy on a regular basis and the clinical notes from the physiotherapy practice commence on 8 December 2022 (page 384 of the ARD). The physiotherapy notes date from 8 December 2022 to 14 November 2024. I was not taken to the physiotherapist notes by either party in submissions however I find that they are supportive of the applicant's claim. 19. The applicant has attended physiotherapy on a regular basis since 8 December 2022 and he has regularly complained of neck pain, left hand pain, left thumb pain, burning pain in his left arm, left finger pain (attendance 22 December 2022) (page 385 of the ARD) pain on the left side of the neck, neck pain worse in lower neck on the left hand side, left upper thoracic pain, left hand paraesthesia, pins and needles along the left arm, (attendance 4 May 2023) (page 393 of the ARD); left arm pain worse with shoulder flexion (attendance 25 May 2023) (page 395 of the ARD); referred left hand burning sensation worst at thumb, increases with reaching and protracting shoulder (attendance 1 June 2023) (page 396 of the ARD); left hand nerve pain worst along thumb radial wrist increases with reaching (attendance

15 June 2023) (page 397 of the ARD); left hand tremors involuntary movement of fingers two to five, left thumb and dorsal hand pain increases to sharp with reaching, shoulder protraction (attendance 22 June 2023) (page 397 of the ARD); sleep limited by pain neck and shoulder left arm hand referred pain sharp (attendance 6 July 2023) (page 398 of the ARD); left arm shoulder pain (attendance 22 February 24) (page 414 of the ARD); left side increase with pins and needles from neck to thumb (attendance 9 May 2024) (page 420 of the ARD) and increased left shoulder pain decreased shoulder abduction strength (attendance

30 May 2024) (page 423 of the ARD). 20. It is clear from this summary of the clinical notes from the physiotherapist that the applicant has been complaining of symptoms in his left arm/left hand since 22 December 2022 and complaints of left shoulder pain since 25 May 2023 which was before the appointment with Dr Bodel which was on 10 October 2023. 21. I accept the applicant's submission that the applicant's statement of 1 April 2025 correctly sets out the genesis of the applicant's left shoulder injury. In that statement, the applicant states that some months after the date of his work injury, although he cannot recall exactly when, he began to feel left arm pain. The symptoms first began as tingling and pins and needles which extended all the way into the fingers on his left hand. He also felt sharp pains in the area of his left bicep and generalised pain in the entirety of his left arm. He continuously reported the left arm symptoms to his general practitioner and physiotherapist and was told that the symptoms were simply connected to his neck condition. This evidence is consistent with the clinical notes from Workers Doctors and the physiotherapist notes referred to above. 22. I also accept that it was not until the applicant consulted with Dr Bodel on 10 October 2023 that it was explained to him that the symptoms he was experiencing in his left arm, and left shoulder had been caused by a separate injury to his left shoulder. 23. I accept the applicant's submission that the applicant's treating neurosurgeon Dr Tait did not specialise in shoulders and was treating the applicant for his back and neck. I do note at the first review with Dr Tait on 8 December 2022, Dr Tait did not record any noticeable restrictions of movement in the left shoulder. At this appointment, Dr Tait has not recorded that he examined the left shoulder and performed the usual tests to measure restrictions. Dr Tait does not provide the standard range of movement findings. As Dr Tait was treating the applicant's neck and back and did not specialise in shoulders it is unlikely that he carried out a thorough examination of the applicant's left shoulder. It is noted that Dr Bodel, in his report dated 23 January 2024, only recorded a slight restriction of shoulder movement on the left-hand side and provided an assessment of 2% whole person impairment at that time. This may well be consistent with Dr Tait's finding that there was not a noticeable restriction of the left shoulder on 8 December 2022. Dr Tait does however note that the left shoulder condition has steadily deteriorated since the injury. Dr Tait also opines that the shoulder arthropathy may have developed from a frozen shoulder as a result of radicular symptoms. The applicant has not relied on consequential injury, so I make no further reference to this possible diagnosis apart from stating that based on the evidence before me, and in particular the reports from Dr Bodel which I accept, I do not accept this possible explanation for the applicant's left shoulder symptoms put forward by Dr Tait. 24. I accept the applicant's submissions that the report from Dr Lim dated 15 December 2024 and the report from Dr Moonpanar dated 29 October 2024 support the applicant's claim and validate the history of injury put forward by the applicant that the left shoulder symptoms were originally attributed to the neck injury and it was not until October 2023 that Dr Bodel identified the left shoulder pathology which was supported by the findings reported on the MRI scan dated 13 August 2024 and Dr Moopanar's findings when he performed the surgery on 20 November 2024. 25. I accept the applicant's submission that Dr Bodel's opinion should be preferred over the opinion of Dr Haig. I accept that Dr Bodel is a well-respected orthopaedic surgeon. I reject the respondent's submission that Dr Bodel failed to explain how he reached the conclusion that the applicant had a rotator cuff injury to the left shoulder. I accept the applicant's submission that Dr Bodel has years of experience as an orthopaedic surgeon and also as a doctor providing medico legal opinions for the applicant and the respondent. 26. Dr Bodel confirms that he had the applicant's statement dated 6 January 2023 (page 67 of the ARD). As previously pointed out, the statement confirms that at the time of the accident the applicant felt like "my whole body jarred because I fell down with such force." In that statement the applicant also confirmed that two to three days after the accident he started to feel pain in his neck. 27. I also reject the respondent's submission that Dr Bodel has failed to explain why there is a hiatus between the date of accident and the onset of the left shoulder symptoms. The respondent states that there is a nine-month hiatus between the date of the accident and the onset of the left shoulder symptoms. This is not strictly correct. Dr Lim and Dr Calvache have recorded in November 2022 in respect of an examination of the left shoulder "internal rotation normal with pain." This was only 6 weeks after the accident. I have accepted that these entries are referable to the left shoulder or both shoulders. Furthermore, in the clinical notes at an attendance on 25 May 2023, the physiotherapist records "left arm pain worse with shoulder flexion." This was eight months after the accident. 28. Dr Bodel has taken a history that the applicant had been treated for his neck and had also experienced numbness and a burning sensation in his left arm and left hand. These symptoms had been repeatedly reported by the applicant to his general practitioners and physiotherapists at Workers Doctors since November 2022. The left shoulder is part of the left arm. Dr Bodel has explained the hiatus in the applicant seeking specific treatment for his left shoulder. Dr Bodel notes basis the applicant was being treated for the left arm symptoms on the basis that they were emanating from his neck rather than his left shoulder. As the applicant pointed out in submissions, the applicant is not a doctor, and he left the treatment for his symptoms in the hands of his general practitioners and the neurosurgeon he was seeing for his neck and back. 29. Furthermore, I reject the respondent's submission that under the heading "Summary of Injuries" in his report dated 23 January 2024 Dr Bodel does not record the injury to the left shoulder. I agree that Dr Bodel has not recorded left shoulder under the heading "Summary of Injuries" however it is clear that under the heading "Current Complaints" (page 68 of the ARD), Dr Bodel has recorded "continuing neck pain and left shoulder and arm pain." 30. In relation to Dr Bodel's report of 23 August 2024 I reject the respondent's submission that the report is unreliable and nothing more than "reverse engineering". The respondent submitted that Dr Bodel did not have the applicant's clinical notes from his treating doctors. I am unable to accept this submission. Dr Bodel states that he had considered the documentation that the applicant's legal representative had forwarded to him. I do not know exactly what documents were sent however the report clearly addresses the documentation he was sent on page five of his report (page 70 of the ARD). Dr Bodel states he had the injury claim form dated 17 November 2022, the claimant's statement dated 6 January 2023, the s 78 notices issued by the insurer, the MRI scan of the lumbar spine and the cervical spine, clinical notes from Dr Matthew Tait and also clinical notes from Workers Doctors and certificates of capacity. I find that Dr Bodel clearly explains his opinion and diagnosis which I accept. 31. I do not accept the respondent's submission that Dr Bodel's opinion in his report of

23 August 2024 should not be accepted as he has based his opinion on unsupported bare assertions. As I have previously stated, Dr Bodel is an experienced orthopaedic surgeon. He has considered the applicant's statement of 6 January 2023. He has considered the applicant's evidence that his treatment to date had been directed at his neck and the symptoms he was experiencing in his left arm and left hand, and left fingers and left thumb had been attributed to his neck pathology. 32. I reject the respondent's submission that the report of Dr Bodel dated 4 February 2025 (page 79 of the ARD) is unreliable and simply completes the cycle of reverse engineering. In that report Dr Bodel modifies the history taken from the applicant relating to the injury to read as follows "He slipped and fell, landing on his flexed knees, taking most of the weight on his right knee, jarring his back and also his neck and left shoulder. He states that the neck and shoulder were not a major feature at that time, but they were injured at the same time according to the history he gives today." In the statement the applicant gave to the insurance investigator dated 6 January 2023, the applicant advised that "it felt like my whole body jarred because I fell down with such force". The applicant has merely identified the parts of his body that were injured as a result of the significant fall that jarred his whole body. Until his first attendance with Dr Bodel, the applicant had been advised by his medical practitioners that the symptoms he was experiencing in his left arm, left hand, left bicep and left fingers and thumb were emanating from his neck. Following the first appointment with Dr Bodel, the applicant was better informed in relation to the nature of his injury to the left shoulder and it is acceptable at this point in February 2025, for the applicant to advise Dr Bodel that in addition to his neck, right knee and lower back, he also injured his left shoulder. Dr Bodel has recorded this and provided his opinion that as a result of the fall, the applicant aggravated, accelerated, exacerbated and caused deterioration to an underlying disease process in his left shoulder, which now requires surgery. 33. In relation to the submissions made by the respondent with respect to the acceptance of the expert evidence from Dr Bodel I have considered the decision of Basten JA in the matter of One Steel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [82] (One Steel). On the basis of that decision if I was to accept the respondent's submission that the reports of Dr Bodel were unreliable, the respondent would need to show that the expert opinion was devoid of foundation and there was no other material before the tribunal capable of supporting the expert's conclusion. I do not believe that Dr Bodel's reports are devoid of foundation and the opinion he has expressed is supported by other material before me. 34. I also note the comments made by Roche DP in Krstevska v Fast & Fluid Mgt Australia Pty Ltd [2012] NSWWCCPD 69 (Krstevska) which looked at the 'fair climate' for acceptance of an expert opinion. An expert opinion should not be accepted if it is seriously deficient or wanting in several critical respects. I do not believe Dr Bodel's reports are seriously deficient or wanting in several critical respects for the reasons I have set out above. 35. The conclusion that Dr Bodel has reached that the fall on 30 September 2022 has aggravated, accelerated, exacerbated and deteriorated the underlying disease process in the applicant's left shoulder was open to him on the evidence despite the nine-month hiatus between the date of accident and the onset of increased left shoulder pain. I have set out the evidence of complaint made by the applicant during the hiatus in relation to the symptoms in his left upper extremity which had incorrectly been attributed to his neck by his treating medical practitioners. See also the decisions of Hancock and Makita. I agree with the applicant's submission that Dr Bodel's report satisfies the requirements set out by the Court of Appeal in the matter of Makita. 36. I further note that in the Commission the question of admissibility does not strictly arise. Section 43 of the Personal Injury Commission Act states that the Commission is not bound by rules of evidence. In Brambles Industries Limited v Bell [2010] NSWCA 162 (Brambles), the employer challenged the Deputy President's acceptance of an expert's opinion on the ground that the expert had not explained part of his opinion. In rejecting that argument, the Court observed that the contention could only succeed if the expert's opinion was of "no rational probative value, and as such, as a matter of law, of no weight." I am of the opinion that Dr Bodel has provided a rational explanation and diagnosis in his reports, and I accept his opinion. 37. In relation to the reports from Dr Haig, I note the following. In his report dated 23 March 2023 (page 52 of the reply), Dr Haig takes a history of neck pain. He also confirms in his "Opinion", actual complaints in relation to the left upper extremity (page 55 of the reply). Dr Haig refers to the wrong date of injury on page two of his report, but this is of no consequence. (page 53 of the reply). Dr Haig does take a consistent history from the applicant that he started to feel neck pain sometime after the fall. Dr Haig also takes a history of complaint from the applicant that if he stretches out his left hand, he experiences a burning sensation near the dorsal aspect of the left thumb. Dr Haig takes a history that the pain interferes with the applicant's sleep. Dr Haig was unable to elicit a left bicep jerk on examination. This is supportive of left shoulder pathology. Dr Haig has not taken a history from the applicant that when he fell, the fall jarred his whole body. Dr Haig has not taken a history of the applicant's height and weight at the time of the accident. Dr Haig did say that the applicant presented in a straightforward, unembellished manner. 38. In his report dated 17 April 2024 (page 58 of the reply) Dr Haig accepts that the applicant has symptoms in his left shoulder but attributes these symptoms to being radicular in origin and referable to the neck. Dr Haig is of the opinion that the neck symptoms are due to age related changes which may or may not have been aggravated by the fall (page 55 of the reply). 39. Dr Haig did not have available to him the MRI scan of the left shoulder dated

13 August 2024, or the operation report prepared by Dr Moonpanar dated 20 November 2024. Furthermore, Dr Haig did not consider whether or not the applicant aggravated the underlying degenerative condition in his shoulder when he sustained the fall on 30 September 2022. Dr Haig only addressed whether or not the applicant injured his left shoulder in the fall. 40. In his report dated 3 June 2025, (application to admit late documents filed by the respondent at page 1), Dr Haig does not resile from the opinion he had reached in his earlier reports. He did have the MRI scan of the left shoulder dated 13 August 2024 however he maintains his opinion that the applicant did not sustain an injury to his left shoulder or neck after he fell during the course of employment. I reject this opinion as it fails to address the applicant's claim that there was an aggravation, acceleration, exacerbation and deterioration of the underlying previously asymptomatic degenerative changes in the left shoulder. 41. I prefer the opinion expressed by Dr Bodel in his report dated 23 August 2024 which reads as follows, "The fall caused the aggravation, acceleration, exacerbation and deterioration of previously asymptomatic rotator cuff pathology in the left shoulder" (page 77 of the ARD). 42. I further reject the respondent's submission that the left shoulder problems only surfaced after the appointment with Dr Bodel. It is true that the applicant only became aware that the symptoms he was experiencing in his left upper limb were as a result of an injury to the left shoulder after he saw Dr Bodel however on the applicant's evidence and his treating doctors and physiotherapist's clinical notes that I accept, he was having left upper limb symptoms which he had been advised were referable to his neck since November 2022. 43. In relation to the respondent's submission that the applicant's evidence in paragraph 4(j) of his most recent statement of 1 April 2025 (page 18 of the ARD) which reads "I confirm I have had ongoing left arm and left shoulder pain since the onset of my symptoms following my work accident on 30 September 2022" is self-serving and false and raises the issue of credit, I reject that submission. The applicant is not saying that he had left shoulder pain immediately following the accident. The applicant is stating that he had ongoing left arm and left shoulder pain since the onset of his symptoms (my emphasis). The applicant has deposed that he experienced left arm pain, which he was advised was referable to his neck, just after he started having symptoms in his neck. The applicant has deposed that he started having left shoulder pain approximately nine months after the accident and I accept that history. This history is supported by the clinical notes from Dr Lim and Dr Calvache and the physiotherapist which confirm that the applicant's medical treatment in the months following the accident focused on the symptoms the applicant had in his left arm as being associated with the pain he was experiencing in his neck which started two to three days after the accident and then commenced to radiate to the applicant's left upper extremity. The symptoms recorded in the clinical notes since November 2022 demonstrate a plethora of entries confirming left arm/left hand pain which the applicant had been advised by his medical team was referable to his neck. This had been confirmed to him by his treating neurosurgeon Dr Tait who did not, by his own admission specialize in shoulders. 44. I accept that it was not until Dr Bodel took a complete history and performed a thorough examination of the applicant, that Dr Bodel was able to make a proper diagnosis in relation to the applicant's left arm and left shoulder complaints. Dr Bodel's diagnosis was proven correct after the applicant underwent the MRI scan on 13 August 2024 and further, when Dr Moopanar operated on his left shoulder in November 2024. 45. Furthermore, I accept the applicant's submission that the applicant was not cross examined and I do not believe there are any inconsistencies in what the applicant has said in his statements. 46. Further, in relation to the respondent's challenge to the applicant's credit, I also note the entry in the clinical notes from Workers Doctors in relation to an appointment with the applicant's psychologist on 18 September 2024 (page 155 of the ARD). At this appointment, the psychologist has noted that the applicant's mood was down as he had received a letter that made out that he was a liar. The applicant advises that the insurer has denied liability for his left shoulder and neck despite having MRI scans. He was clearly upset. At this point, I wish to make it clear that I reject the respondent's attack on the applicant's credit. I do not consider that he is a liar nor that he has embellished his claim. 47. At an earlier appointment with his psychologist on 20 August 2024, the psychologist records the applicant's frustration in not having the claim for his neck and shoulder accepted (page 159 of the ARD). The psychologist records "my shoulder also got worse." The psychologist notes the applicant was struggling with the process. The applicant advised the psychologist that "when you go through this process you are a liar." The psychologist notes that at the beginning the applicant wouldn't say anything because he didn't want to be seen as a nagging. This entry confirms the comment made by Mr Le Guier in his statement dated

18 January 2023. The applicant was reticent to complain. As Mr Le Guier said, "He shrugged it off, but it ended up worse than he thought." 48. Apart from a workers' compensation claim for a hernia injury approximately 30 years ago the applicant has never made a claim for workers compensation. In light of this, I reject the respondent's submission that the applicant has embellished his claim and brought his credit into question. If anything, the applicant, to his detriment, has understated his symptoms which has resulted in the injury to his left shoulder being denied by the insurance company. I accept that the applicant's statements are consistent and reflect the knowledge the applicant had been provided with by his medical providers at the time of preparing the statements. 49. I have considered the decisions referred to by counsel during submissions. 50. Firstly, I accept the applicant has established a causal connection between the significant fall on 30 September 2022 and the onset of left shoulder symptoms properly diagnosed by Dr Bodel at the medico legal consultation on 3 October 2023. 51. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates [1938] HCA 34; (1938) 60 CLR 336 (Kooragang) wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that "[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate". After referring to earlier English authorities, his Honour added (at [462 E]):

"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 result of the cases is that each case where causation is in issue in a workers' compensation claim, must be determined on its own facts."

1. Further in the case of Email Limited (in the interests of Allianz Australia Workers Compensation (NSW) Limited v Qummou and others [2006] NSWWCCPD198 (Allianz):

"if there can be identified an incident which involves - either by being itself the change, or by bringing about the change - a physical change in the worker, then - even though that change may be no more than the culmination of a progressive disease, and not the product of some external force - that damage is to be regarded as an 'injury' within the meaning of par(a) of the definition of 'injury' in s4 of the Act (see Powell J in Australian Conveyor Engineering v Mecha Engineering Pty Limited [1998] NSWCC 51; (1998) 17 NSWCCR 309 at 324)."

1. I have considered the abovementioned legal principles in the context of the evidence of the applicant's case. I find that the applicant's fall on 30 September 2022 during the course of his employment has brought about a physical change in the applicant's left shoulder pathology by way of an aggravation, acceleration, exacerbation of the underlying disease process.
2. Secondly, I accept the applicant has satisfied the test set out by Kitto J in the decision of Semlitch. In that matter Kitto J said "there is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism."
3. I have considered this decision in relation to the issue of aggravation and exacerbation of a disease process, and I am satisfied that the applicant, on the balance of probabilities, has established that the significant fall at work on 30 September 2022 has aggravated and exacerbated the disease process present in the applicant's left shoulder. It is clear on the evidence that the applicant was experiencing left arm symptoms after he started to experience neck pain two to three days after the fall. The applicant's left arm symptoms were misdiagnosed for over a year, thought to be related to his neck. There has been no intervening cause for the increase in shoulder symptoms during the nine months hiatus between the significant fall on 30 September 2022 and the onset of an increase in left shoulder pain in or around June 2023.
4. I have also considered the decision of Burke CCJ in Cant v Catholic Schools Office [2000] NSWCC 37; [2000] 20 NSWCCR 88 (Cant) where his Honour said, "Irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker." (at [17]).
5. It is clear in the present case, that the applicant's underlying condition has been aggravated by the fall as the symptoms and restrictions in the left shoulder have increased and become more serious to the applicant.
6. It is true, in the current claim, the injury to the left shoulder could fall under s 4(a) or s 4(b)(ii) of the 1987 Act. However, in light of the medical evidence and in particular the MRI scan of the left shoulder dated 13 August 2024 I am satisfied that the injury should be considered as an aggravation, acceleration, exacerbation and deterioration of an underlying disease process pursuant to s 4 (b) (ii) of the 1987 Act. (See Rail Services Australia v Dimovski [2004] NSWCA 267 (Dimovski) and Australian Conveyer Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCC 51; (1998) 45 NSWLR 606 (Mecha).
7. I have been provided with no evidence to suggest that the applicant's employment on 30 September 2022 was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the underlying disease process in the applicant's left shoulder. There is no evidence to suggest the applicant has sustained a further injury to his left shoulder since 30 September 2022. Prior to the injury, the applicant's left shoulder pathology was asymptomatic. I am therefore comfortable in finding and satisfied on the balance of probabilities, that the applicant's employment on 30 September 2022 was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the underlying disease process in the applicant's left shoulder.
8. In relation to the issue of material contributing factor I rely on the decision in AV v AW [2020] NSWWCCPD 9 (AV), where DP Snell considered the test of material contributing factor in s 4(b) of the 1987 Act at [77]-[78] stating "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."
9. In this case I have considered the work-related factors (i.e. the significant fall) and non-work-related factors (i.e. the previously asymptomatic disease process in the applicant's left shoulder). I have come to the conclusion that, on the balance of probabilities, the applicant's left shoulder injury has been caused by the fall on 30 September 2022 resulting in an aggravation, acceleration, exacerbation and deterioration of the previously asymptomatic underlying degenerative condition in the applicant's left shoulder. I am satisfied on the whole of the evidence that the fall at work on 30 September 2022 was the main contributing factor to the aggravation, acceleration, exacerbation and deterioration of the underlying disease process in the applicant's left shoulder.
10. The respondent made no submissions in relation to the reasonable necessity of the surgery performed by Dr Moopanar on 20 November 2024 which involved an arthroscopic cuff repair and bicep tenodesis and subacromial decompression of the left shoulder and associated expenses.
11. I accept the opinion expressed by Dr Bodel in his report dated 4 February 2025 (page 83 of the ARD) and Dr Moopanar in his report dated 20 January 2025 (page 102 of the ARD), that the left shoulder surgery was reasonably necessary and I make a finding that the left shoulder surgery performed by Dr Moopanar on 20 November 2024 was reasonably necessary. In particular, Dr Moopanar has addressed the requirements that I need to consider when determining if the treatment was reasonable and I am satisfied on the balance of probabilities that those requirements have been met (see Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab)).
12. There will be an award for the applicant pursuant to s 60 of the 1987 Act and the respondent will be ordered to pay for the costs of an incidental to the surgery (an arthroscopic cuff repair and bicep tenodesis and subacromial decompression of the left shoulder) performed by Dr Moopanar on 20 November 2024.

1. In summary, I find the applicant sustained an injury to his left shoulder by way of an aggravation, acceleration, exacerbation and/or deterioration of an underlying disease on

30 September 2022 pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. 2. The applicant's employment was the main contributing factor to the applicant's injury to his left shoulder. 3. The surgery performed by Dr Moopanor on 20 November 2024 (arthroscopic cuff repair and bicep tenodesis and subacromial decompression of the left shoulder and associated expenses) as referred to in his report dated 20 November 2024 is a reasonably necessary medical treatment as a result of the injury to the applicant on 30 September 2022.