PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. Mr McManamey of counsel, instructed by Turner Freeman Lawyers- Narellan appeared for the applicant. Mr Guest, solicitor, of Sparke Helmore Lawyers, appeared for the respondent.
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.

1. The applicant was cross-examined by Mr Guest on a discrete issue, being the relevance of a previous sporting injury to his left shoulder.
2. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (ARD) and attachments;

(b) Reply to ARD (Reply) and attachments, and

(c) Applications to Lodge Late Documents and attachments.

1. The applicant had a previous arthroscopic meniscal repair arising from a basketball injury. This history is of no relevance to the present application.
2. The applicant gave the following evidence in relation to a previous sporting issue injury to his left shoulder:

"In April 2024, I bruised my left shoulder whilst playing AFL. This was a minor injury, and I did not undergo any treatment for this. I continued to work and play sport as it did not have any impact on my activities. I have fully recovered from this injury and have had no ongoing treatment."[1]

1. The applicant's evidence regarding the injury to his left shoulder at work is set out in his statement as follows:

"14. On 7 February 2025, I injured my left shoulder during the course of my employment with Aldi.

1. At about 7:30 pm, I was in the heavier section of the warehouse where the heavier boxes were. I was performing my regular duties of employment and operating the MHE machine, which is an electric pallet jack. We use this machine for picking and packing orders.
2. As I was walking with the machine, I reached up and backwards with my left shoulder to reach for stock above head height. Suddenly, I heard a pop in my left shoulder and experienced immediate pain. It popped straight back in, but it was kind of just hanging there. I believe that there is CCTV footage of this incident.
3. I walked into the store and notified my manager, Dean Redmile. An incident report was prepared, and I spoke to a physio hotline over the phone. They asked me to explain how the injury occurred and how I felt, but that was about it.
4. Shortly afterwards, one of the leaders, I cannot recall who, asked if I could continue working for the rest of my shift but on light duties instead. As directed, I continued to work on light duties, which involved cleaning, but I was unable to do this for more than 10 minutes or so. During this time, I was using my right arm whilst performing these duties. My left arm was just down the whole time. I was fearful of experiencing any further pain.
5. Due to the pain being so significant, I went to the leaders and they said I could go home."[2]
6. The applicant eventually returned to work on light duties. His medical treatment[3] has involved a series of approved sessions with the respondent's internally approved physiotherapist (10 sessions), ice packs at work, consultations with his treating general practitioner (GP), physiotherapy as referred by Dr Nguyen, an MRI and a referral to an orthopaedic surgeon, Dr Jonathan Herald. Dr Herald recommended the continuance of physiotherapy until surgery.
7. The respondent denied liability for the left shoulder arthroscopy in April 2025 on the basis of an opinion provided by a Dr Rimmer. The applicant's evidence was that Dr Rimmer told him that he was double jointed which might make him more susceptible to extending his joints. This would make them pop out like his shoulder. He said the injury could have occurred anywhere.[4]
8. Dr Herald provided a report to the respondent on 7 February 2025 in answer to a series of questions. The report is best set out in full rather than summarised:

"1. Based on your examination of Maidhci, please provide your clinical assessment of Maidhci's fitness for work, including hours, capabilities, and restrictions.

At the present moment, he is fit for sedentary or seated-type duties. He can upgrade his hours towards full hours but he would need to avoid shoulder-height-and-above activities.

1. Are there any other factors apart from Maidhci's primary injury that are impacting on his/ her ability to return to work? If yes please provide comment.

1. Are there any further medical investigations or tests required? If so please specify and reasons as to why they are indicated.

No further medical investigations or tests are required. He has had a left shoulder instability episode.

1. What further treatment or rehabilitation do you consider would improve Maidhci functional capacity?

I would recommend a shoulder arthroscopic stabilisation procedure.

1. Would you recommend alternative treatment and what would be the expected outcome? If treatment is being recommended please also advise the type, duration and anticipated frequency of this treatment?

I have referred him to physiotherapy to continue with range of motion and strengthening exercises, and this would be as a form of prehab to obtain the best results post surgery.

1. 6. Could you please provide comment for the attached CCTV footage of the incident? If the diagnoses is not consistent with the injury history, please provide your opinion of the cause of the diagnosed condition.

I have reviewed the CCTV footage and unfortunately the angle is not good enough for me to make comment.

1. Could you please confirm the mechanism of injury?

His shoulder has been forced into an abduction and external rotation position.

1. Has work been substantial contributing factor to the injury?

1. Maidhci has advised he engages in sporting activities over the weekends, is there evidence the injury is pre-existing condition, as Maidhci injured the same shoulder in non work related injury in April 2024?

Maidhci says he had a muscle contusion in about April 2024 and not an instability episode of the same shoulder. He is a very active sportsperson, however he has not given me any history of injury outside of his workplace.

1. Your opinion of Maidhci's current capacity of returning to his full-time pre-injury duties as a storeperson in relation to his workplace injury.

His prognosis for returning to his pre-injury full-time duties as a storeperson is high following surgery.

1. Please advise your prognosis and timeframes with specific regards to return to preinjury duties.

1. The respondent referred to the clinical notes of the applicant's treating GP, Dr Nguyen, taken in April 2024,[5] regarding an injury sustained by the applicant as a result of receiving a shoulder charge whilst playing AFL. The notes state:

Left shoulder pain pick packing-up to 10kg repetitively.

1. Mr Guest sought and was granted leave to cross-examine the applicant regarding this AFL incident and his subsequent treatment by Dr Nguyen. I have set out the questioning as best as I am able:

"Mr Guest: Mr Lane. You've given a statement in this matter. Have you been shown that statement today?

Your evidence in your statement was that you'd never had any significant problems with the left shoulder prior ....

Member Drake: You should put exactly what it says in the statement, not summarise it. ...

So your evidence in your statement was that you had an injury playing AFL to your left shoulder. And that it was just a bump. You didn't seek any medical treatment.

Mr Lane: Oh, wait, no, not medical treatment. But I went to the doctor.

Member Drake: That's medical treatment. Yes. If you saw a doctor, it's a medical appointment.

Mr Guest: So the evidence that you didn't undergo any treatment, that's not correct, is it?

So you went and saw Doctor Nguyen the night after your shoulder injury playing AFL, and that was in April 2024. And so that injury occurred. You told Doctor Nguyen that it occurred after shoulder charge. Is that correct?

The question has to tell the witness when it is he supposed to have occurred.

Sir, do you recall undergoing an ultrasound as a result of that injury?

Mr Mc Manamey: After the incident in the AFL match, did you go and see the doctor immediately or later?

Mr Mc Manamey: Had you gone back to work in between?

Mr Mc Manamey: And what did you notice when you turned to work?

Mr Mc Manamey: And, and is that why you then went to see the doctor?

Mr Mc Manamey: Thank you. And is that why you told Doctor in April 24, there ' ..associated with work."

1. Dr Rimmer provided a report for the respondent dated 15 May 2025.[6] He found that the applicant suffered from generalised ligamentous laxity. He stated that the applicant suffered from a recurrent dislocation left shoulder. There was no exaggeration or inconsistent symptoms reported. Dr Rimmer described the workplace injury as "trivial at most". On the balance of probabilities he considered that the injury was a re-occurrence. He suggested the MRI scan of the left shoulder was highly suggestive of a chronic recurrent condition. He came to this conclusion despite Mr Lane denying that there had been any previous dislocations. He considered the respondent was not liable for the injury because of "...the trivial nature of the mechanism of injury, i.e. just reaching up with his left upper limb which would occur at any time, anywhere".
2. Mr Guest submitted that the interpretation of the MRI supported Dr Rimmer's conclusions.

"(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.

(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination) -

(b) the nature of the work performed and the particular tasks of that work,

(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,

(e) the worker's state of health before the injury and the existence of any hereditary risks,

(f) the worker's lifestyle and his or her activities outside the workplace.

(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following -

(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,

(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies."

1. Having heard the applicant in cross-examination and considered the medical evidence, I accept the applicant's evidence.
2. I am satisfied that there is no issue affecting the applicant's credit arising from his having stated that he had no treatment in relation to his AFL injury in April 2024, despite the clinical notes of Dr Nguyen. I am satisfied that the applicant perceived medical treatment as something being done to him. His evidence is that he saw the GP, there were scans done and he recovered. There is no dishonesty involved, just a question of what this young man perceived to be medical treatment when making his statement.
3. I am satisfied that after the applicant suffered a bruised shoulder arising from an AFL injury he returned to work and experienced some pain.
4. There is no evidence to suggest that the applicant suffered a dislocation of his shoulder in the AFL incident or that it predisposed him in any way to the injury that I am satisfied he later suffered at work on 7 February 2025. The applicant suffered a bruise. He did not suffer a dislocation. There was no basis for Dr Rimmer rejecting the applicant's history in this regard.
5. I accept Dr Herald's interpretation of the MRI, his diagnosis and his recommendation as to surgery.
6. I am not persuaded by Dr Rimmer's opinion that his injury could not have been caused by the incident at work. I specifically reject his suggestion that, because the event itself appeared trivial, it could not be a substantial contributing factor to his injury.
7. I am satisfied that the applicant dislocated his shoulder at work.

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