(a) Application to Resolve a Dispute and attachments, and

(b) Reply and attachments.

1. Liberty to apply with respect to s 67 and costs following medical assessment.

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

1. On 5 April 2014, in the course of his police duties, Joshua Makari (the applicant) sustained an injury to his left shoulder which ultimately required surgery and much rehabilitation. Liability was accepted by the NSW Police Service (the respondent).
2. This application concerns a claim for lump sum compensation for the left shoulder injury but also consequential conditions in the right shoulder and neck.
3. Following assessment, the respondent denied liability for the right shoulder and neck maintaining it was not satisfied that an injury or consequential condition exists. An offer of 3% whole person impairment was conveyed for the left shoulder which was rejected by the applicant. Internal review was unsuccessful prompting this application to the Personal Injury Commission (Commission).
4. The matter underwent the usual case management pathway ultimately proceeding to Arbitration on 28 February 2025. Mr Beran of counsel instructed by Mr Taouk represented the applicant. Ms Young of counsel instructed by Ms Bartolo appeared for the respondent. Mr Wilson was the insurer representative. Evidence at arbitration was confined to the Application to Resolve a Dispute (ARD) and the Reply.
5. Following the arbitration, the respondent filed an Application to Lodge Additional Documents (ALAD) on 3 March 2025. The application was opposed by the applicant. In the interests of procedural fairness, I convened a further conference on 12 March 2025 where Mr Khoshaba made submissions on behalf of the respondent and Mr Taouk made submissions on behalf of the applicant.
6. I considered the submissions and have rejected the ALAD which consists of a desktop surveillance report. This is because;

(a) I found the reasons for the late provision of the report to be unacceptable. The applicant notified the respondent of his claim more than 12 months prior to this application. The respondent had ample time to gather and serve its evidence and for reasons that appear to relate to the conduct of a third party provider, were unable to do so;

(b) to accept the document at this late stage, given submissions had been finalised, would require the matter to be effectively "re-opened" resulting in the need to ensure that the applicant is given sufficient opportunity to respond to any issues raised in the report. This entirely distorts the case management timetable and would likely promote further delay, thereby breaching the objectives of the Commission;

(c) the desktop surveillance report will of itself not assist me in the assessment of the consequential claims as this is a factual and legal question;

(d) the respondent maintains that the report goes to the issue of "pain and suffering" and therefore should be accepted. I note that the issue of s 67 benefits will be assessed following any medical assessment. (Should that remain a live issue, I propose to set a timetable for the provision of submissions and or additional evidence relating to that issue alone when assessing such quantum). This will ensure neither party will be prejudiced procedurally as they will have sufficient time to consider and make submissions on the material before I make a decision on that issue;

(e) the desktop surveillance report would be of little utility to a Medical Assessor who is required to independently assess impairment with reference to the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th Edition, which in this case relates to range of movement/motion and the presence of verifiable symptoms etc, and

(f) at preliminary conference on 18 February 2025, both parties indicated no further evidence was being relied upon, reflected in notation 3 of my direction issued that day.

1. As liability for the left shoulder has been accepted, the only issue for determination is whether the applicant has developed compensable conditions in the right shoulder and neck as a consequence of his left shoulder injury. In doing so, I have considered the ARD, the reply and submissions in my discernment.

1. In his statement dated 19 December 2024[1] the applicant confirms he injured his left shoulder in a "take down" on 5 April 2014. After exhausting non operative treatment he underwent arthroscopy and unfortunately developed 'frozen shoulder' which he says caused him to rely more on his right arm. A second left shoulder surgical procedure was undertaken on

12 October 2017. Multiple injections into the shoulder failed to provide relief resorting in the need for medicinal cannabis to ease symptoms, funded by the respondent as medication causes gastrointestinal upset. However medication is resorted to when travelling overseas or during periods of flare ups. He attends the gym four to five times per week for weight training, resistance training, cardio and stretching. 2. Following injury he had about one year off work, returned to light duties for an extensive period of time and ultimately upgraded to pre-injury duties as an operational police officer only to then resign. Subsequent employment has been mainly administrative in nature. Previous and subsequent injuries in the claimed areas are denied. 3. Pain continues in both upper limbs and is dependent on activity. There is also pain in the neck and lower back. He states "the pain in the right shoulder and neck have come from me overcompensating for my injury to the left shoulder". Sleep is disturbed. 4. As regards physical tolerances, the applicant states (unedited);

"69. I can't sit down for long because my shoulders and neck start to hurt.

1. I struggle with household chores like mopping and vacuuming because they sometimes make my shoulder and neck pain worse.
2. I also struggle with laundry because I can't lift things above my head to put washing on the line to dry.
3. I struggle putting on shirts since it requires me to put my arms over my head, which causes my significant pain in my shoulders and neck. I try to put my shirt on in a specific way to avoid this pain - the left side first, then the right side. However, even doing it this way can sometimes still cause me pain.
4. When I am driving, I can't get full range of motion when I turn, including when reversing. Instead, my neck gets stiff due to my limited range of motion. As such my self-care, employment and domestic duties have been all affected by my shoulder and neck injuries."
5. The statement also indicates pain interferes with all aspects of daily living. Gym activities have been altered to avoid overhead lifting and are "limiting my ability to stay fit which has always been important to me".
6. In legal communications, the applicant's solicitor recorded a number of post injury events including a fall at Woolworths on 2 February 2021 which caused back injury for which the applicant received compensation in a public liability action and a motor vehicle accident on

7 February 2024 in which no injuries were claimed and no doctors consulted.[2] 7. Dr Papantoniou, orthopaedic surgeon was qualified by the applicant on 7 February 2024.[3] He describes the surgical procedures to the left shoulder in 2014 and 2017 and recorded the onset of pain in 2015 in the right shoulder on account of "using the right upper limb more to compensate". The right shoulder pain was noted to be anterior and worse with activity such as going to the gym and lifting. The onset of neck pain in 2017 was noted associated with stiffness with rotation to the left reproducing pain. 8. It was concluded (unedited):

"there is no doubt, given the workplace incident, that the left shoulder pathology is directly related to this incident. He suffered acute trauma at the time and the sequelae of this over the years is what we seen now. I further note that this was predicted by Dr Boker a number of years ago.

The right shoulder is a direct consequence of having to use this more as a result of the left shoulder pathology. Similarly, the neck is a consequence of the left shoulder pathology with the abnormal forces being transmitted through the cervical spine as well as the abnormal movements that will result...

I do believe the right shoulder and the cervical spine pathology are consequential upon the original injury, the left shoulder pathology and the subsequent treatment...

A left shoulder replacement will be required in the short term"

1. Dr Rizkallah performed the initial arthroscopic repair when conservative treatment measures failed. His serial reports between 5 June 2014 and 5 May 2015[4] refer to the progress made and on discharge from his care on 5 May 2015 he reported:

"His left shoulder is settling slowly, although he is still having discomfort over the posterior portal associated with crunching, possibly due to excessive scar tissue formation. His shoulder however, maintains a full range of active motion with good strength and negative impingement. His apprehension test is positive."[5]

1. Dr Bokor was consulted on 11 January 2016.[6] He records complaints confined to the left shoulder only and undertook arthroscopic debridement, synovial biopsy and sub pectoral biceps tenodesis due to ongoing discomfort and pain on 12 October 2017.[7] Future left shoulder replacement was forecasted.
2. Review consultations on 15 January 2018[8] and 23 January 2023[9] reported symptoms confined to the left shoulder with pain "if he lies on that side at night and activity". Good strength was noted but again given the level of osteoarthritis, total shoulder replacement could not be excluded with a suggestion it be deferred for as long as possible.
3. Dr Ralph Bright reviewed the applicant for complaints of osteoarthritis in the shoulder complicated by labral tear, synovitis and tendonitis on 4 July 2017[10] and recommended stem treatment.
4. Multiple physiotherapist reports are relied on which highlight symptoms and treatment to the left shoulder. [11] The initial report records "initial treatment involved soft tissue release to the surrounding neck muscles and posterior capsule rotator cuff strengthening...."[12].
5. Rouse Hill Town Medical & Dental Clinical record 113 consultations between 5 April 2014 to 21 December 2023[13] (my count). The notes reveal the following reports of symptoms as they concern the neck and right shoulder symptoms;

1. Dr Nguyen in his report dated 21 December 2022 recorded medicinal cannabis was being prescribed for "injury to the left shoulder in 2014 from falling at work in police force during arrest".[17]
2. The notes of Momentum Physiotherapy & Health Services record multiple attendances between 28 June 2017 and 10 March 2018[18] with 24 consultations recorded. Many of the notes refer to left shoulder symptoms with the exception of an entry on 11 December 2017 where it was recorded:

"Increased tension through neck and UB with increased heavy ex at gym - some Ha over weekend."[19]

1. The notes of Active Movement Studio record treatment notes for sessions between

5 April 2023 to 22 January 2024, a total of nine sessions. The reason for the consultation in April 2023 was nominated as "injured left shoulder since 2014"[20] with treatment goal and outcome to "loosen muscles around shoulders/neck".[21] Presenting symptoms were recorded as "UT and neck soreness, L posterior shoulder has been sore, L lat soreness".[22] 2. Sequential medical certificates issued between 2014 to 28 February 2023[23] refer to left shoulder complaints only. Relevantly, apart from periods post surgery, there were no restrictions nominated on activities of lifting/carrying, sitting, standing, pushing, pulling, bending, twisting, squatting and driving. However, in a certificate dated 28 February 2023, lifting, standing and driving restrictions were noted "as tolerated".[24] An MRI scan of the right shoulder was normal in appearance with the exception of some joint degeneration seen. 3. An MRI of the cervical spine dated 29 January 2024 reported largely right sided pathology.[25] 4. Clinical notes of Sami Karam, osteopath recorded consultations between 1 December 2018 to 11 February 2019.[26] A total of 10 treatment sessions were noted each focusing treatment on the left shoulder condition only. 5. An allied health recovery request dated 5 April 2023 requests treatment for "shoulder dysfunction with referred neck pain due to previous labrum tear". (my emphasis)[27] Symptoms were recorded as:

"upper trap, neck and left posterior shoulder soreness with restricted left shoulder movements."

1. Dr E Price, occupational physician was qualified and reported on 2 March 2023. Complaints regarding the left shoulder only were recorded. Notably, Dr Price supported the use of medicinal cannabis to assist with pain given that surgery, PRP injections, stem cell treatment, steroid injections and periods of altered duties all failed to alleviate symptoms.[28] Dr Price supported ongoing regular gym attendance concluding "this would be of more benefit than causing aggravation of the shoulder condition".[29]
2. Dr Rimmer, orthopaedic surgeon, was qualified and reported on 26 July 2024. The surgical procedures and frozen shoulder sequaelae along with the ultimate return to work on full duties with the Riot Squad until resignation were recorded. Current symptoms were reported as constant pain in the left shoulder, deep seated pain in the right shoulder and pain on the right side of the neck.
3. He diagnosed severe post-traumatic osteoarthritis in the left shoulder and initially stated no diagnosis in the cervical spine and right shoulder. Later in the same report he diagnoses "trivial aggravation rotator cuff tendinopathy in the right shoulder and minor musculoskeletal sprain in the cervical spine".[30]
4. Dr Rimmer concluded that employment was a substantial contributing factor to the left shoulder injury and noted that the applicant claimed that he had chronic pain in the cervical spine and right shoulder because of the left shoulder injury. Careful review of the report confirms he failed to independently assess the cause of the right shoulder and neck symptoms and any relationship to work.

(a) the pathology in the left shoulder is significant. The radiological history shows a serious deterioration in the status of the shoulder and all specialists agree that a shoulder replacement is inevitable;

(b) given the pathology, common sense can only lead to the conclusion that there was increased reliance on the right shoulder and neck, especially as the first surgical procedure resulted in frozen left shoulder;

(c) whilst there might be a paucity of complaints to the general practitioners, it cannot be forgotten that the focus was on the left shoulder for which liability had been accepted. It is well understood notes of the treating doctors do not always represent a full clinical picture;

(d) the respondent's qualified specialist has supported that the applicant sustained an aggravation of right shoulder pathology and neck muscle strain. The only "evidence" to support the respondent's position is its s 78 notice which misinterprets the clinical picture as a whole;

(e) the report of Dr Papantoniou should be preferred. It is consistent with the history and the opinions align with the views of Dr Rimmer;

(f) the applicant has developed significant osteoarthritis in the left shoulder. He has undergone two surgical procedures, the first resulting in frozen left shoulder syndrome, symptoms have been significant to require much rehabilitation and even medicinal cannabis to assist with pain. It is more than reasonable to conclude that the left shoulder symptoms have significantly impacted the applicant's right shoulder. His statement shows that he has altered the way he manages activities of daily living along with his daily gym activities to accommodate his left shoulder disability but despite this, overuse of the right shoulder and postural changes have resulted in the consequential conditions claimed to the right shoulder and neck;

(g) as there was no view expressed to the contrary, the painful condition of the left shoulder had made a material contribution to the condition of the right shoulder and neck,[31]and

(h) the applicant is a witness of credit.

(a) there was a paucity of evidence relating to symptoms in the right shoulder and neck and their relationship to the left shoulder injury. The evidence is unsatisfactory to make a finding of consequential condition and I was referred to the decision of Moriarty-Baes,[32] (Moriarty) a case where such a failure resulted in a finding that the applicant had not discharged the onus of establishing consequential condition;

(b) the applicant is right handed. He was certified fit for pre-injury duties and indeed returned to them for several months before resigning his employment for non-injury related conditions. Given that he was fit to return to work, it is unlikely that he could establish symptoms of any real substance;

(c) none of the Certificates of Capacity refer to symptoms in the right shoulder or neck;

(d) the multiple physiotherapists have not rendered treatment to the right shoulder. There is a reference to neck symptoms but this appears to be likely to be pain arising in connection from the shoulder;

(e) many of the notes refer to aggravation of pain following gym activity;

(f) the applicant has failed to properly articulate what activities resulted in overuse of the right shoulder and or neck symptoms. That is, his statement failed to properly articulate what he would previously do with his left shoulder and what he could no longer do and the extent of reliance of the right upper limb, and

(g) none of the medical evidence establishes a clear causal link between the left shoulder injury and symptoms in the right shoulder and neck. The qualified opinions rely on the assertions by the applicant which are largely unsupported by the contemporaneous medical material. The reliance on these statements alone, in the absence of any contemporaneous complaints or treatment infects the opinions. The respondent accepts that there may be symptoms, however the evidence does not show they are a consequence of or result from the left shoulder injury.

(a) capacity and impairment are two separate concepts. Workers with impairment can return to full duties. The fact that the applicant was certified fit for his pre-injury duties does not dilute his claim for consequential conditions which clearly arise out of a significantly impaired left shoulder;

(b) the respondent's assertion that the applicant has not specified his activities of daily living and the manner in which he has altered his activities to rely more so on the right shoulder and neck is without basis. The applicant has stated that many of activities of daily living have been interfered with and now modified to accommodate the left shoulder injury which clearly, with a common sense approach, would establish on the balance of probabilities a greater degree of reliance on his right upper limb and extra strain on the neck, and

(c) as regards the authority of Moriarty, paragraph 111 of that decision highlights that each case much be assessed on its own merits.

1. There is no dispute that the applicant has sustained a left shoulder injury on 5 April 2014 with reference to s 4 of the Workers Compensation Act 1987 (the 1987 Act).
2. The epicentre of this dispute is whether such injury to the left shoulder has resulted in the consequential conditions of the right shoulder and neck as claimed by the applicant.
3. The 1987 Act does not define a consequential condition. Authorities establish the following key principles (which by no means are exhaustive):

(a) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[33] (Kumar);

(b) each case must be determined on its own facts;

(c) it is unnecessary for a worker alleging such a condition to establish that it is an 'injury' (including 'injury' based on the 'disease' provisions) within the meaning of s 4 of the 1987 Act[34] (Moon);

(d) in order to establish a condition, there is to be a 'common sense evaluation' of the causal chain, determined on the basis of the evidence, including expert opinions[35] (Kooragang);

(e) a finding of a consequential condition does not require the identification of pathology[36] (Kumar);

(f) a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury;

(g) reliable and contemporaneous medical evidence plays a significant role in establishing causation;

(h) there must be an unbroken chain of causation from the injury to the development of the consequential condition;

(i) it is not necessary the applicant prove he suffered from 'injury' to the conditions claimed to be consequential, all he needs to demonstrate is that the symptoms arise from the accepted left shoulder injury;

(j) the test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss 'resulted from' the relevant work injury[37] (Sidiropoulos), and

(k) the absence of treatment is not fatal to the applicant's claim of the presence of a consequential condition[38] (Baker);

(l) the causal relationship must be established on the balance of probabilities from evidence in an acceptable form,[39] (Munce) and

(m) A court (the commission) should not act upon an expert opinion the basis for which is not explained by the witness expressing it.[40] (Edmonds)

1. Here the respondent submitted that mere complaints in the right shoulder and neck are insufficient to establish a consequential condition arising from the left shoulder and referred me to the case of Moriarty. I consider this case is an example of the application of the principle in (Kooragang) and is not novel.
2. The applicant carries the onus of establishing on the balance of probabilities that the conditions now existing in the right shoulder and neck resulted from his accepted left shoulder injury. The content of the standard of proof has been the subject of much judicial discussion and consideration but, for present purposes, it is sufficient to say I must be satisfied to a sense of actual persuasion or affirmative satisfaction that such claims have been made out (Nguyen).[41] It is not necessary that I be satisfied to a degree of medical or scientific certainty but, on the other hand, it will not be sufficient if I am merely satisfied that it is possible that the condition is related to employment.
3. In considering the evidence, I found the qualified opinions lacking and unpersuasive. The report of Dr Papantoniou concludes without sufficient reasoning that there has been an overuse type injury of the right shoulder but does not offer any plausible reasoning, particularly given that the applicant was right handed, had returned to full pre-injury duties and then resigned his employment and since that time has only undertaken desk type activities. He provides little rationale for his conclusion, particularly given that the radiology of the right shoulder was rather unremarkable and fails to consider that no treatment has been sought for conditions in the right shoulder or neck, rather only for pain or muscle tension in those areas. Further, he does not explain why there would be such overuse or development of the asserted consequential conditions given both Dr Rizkallah and Dr Bokor recorded satisfactory movement and strength in the left shoulder following the surgery and rehabilitation periods and post operative reviews. I consider the opinion is ipse dixit and lacks sufficient reasoning as to the chain of causation leading as it relates to the right shoulder and neck. Given the lack of cogent explanation for the conclusion, in light of the background history, I have afforded this opinion little evidentiary weight (Edmonds).
4. Likewise the report of Dr Rimmer was unsatisfactory, largely because of the ambiguity. At one point in the report, Dr Rimmer indicated that he could not offer a diagnosis for the right shoulder and neck and then only a few paragraphs later offers a diagnosis. Further, with regards to causation, he does not offer his own opinion but rather repeats what the applicant has told him without forming an independent view on the basis of his examination and the history given. I found this report to be confusing and inconsistent and have given it little probative weight.[42] I have acknowledged the applicant's submission that Dr Rimmer's report supports the applicant's claims, but cannot conclude that this is the case given the inconsistencies and ambiguities.
5. Given the above, I have placed greater weight on the contemporaneous evidence. I have carefully considered the evidence from the time of the 2014 injury and the making of this claim, to determine whether it is based on history which is sufficiently accurate so as to create a "fair climate" for its acceptance.[43]
6. In undertaking that task, I am mindful of the admonitions of the Court of Appeal and submissions of counsel that caution should be exercised in regard to the weight to be given to the records of busy treatment providers whose primary concern is the well-being of the patient as such providers may not fully or accurately record what is said to them by the patient.[44] Nevertheless, such records are able to be considered, along with all of the other evidence, and are of forensic value in that they are relatively contemporaneous and are often recorded in an environment untainted by litigious considerations and in which a patient is, by reason of seeking treatment, likely to be truthful. The weight to be given to such records will vary from case to case depending upon the circumstances, the issues in dispute and the whole of the evidence.
7. I am also mindful of the advice provided by the majority in Fox v Percy [2003] HCA 3 that it is preferable for decision makers to "reason their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events".
8. As regards the contemporaneous notes, I have counted no less than 156 presentations to various medical and allied health practitioners (113 presentations to the general practice), (10 to Sami Karam), (24 to the practice of Momentum Physiotherapy) and (9 on the practice of Active Movement). I acknowledge that the applicant had further presentations to specialists for stem cell treatment and prescribers of medicinal cannabis. I have not counted these presentations as the notes are unclear on the frequency of consultations. Simply put, over a period of nine years and 156 consultations the applicant has predominantly complained of left shoulder symptoms. The general practice notes show he attended the practice regularly for a variety of general medical conditions but there less than half a dozen references to right shoulder and neck symptoms. Neck symptoms are suggestive of referred pain from the left shoulder which is not indicative of a stand alone neck condition.
9. As for the complaint of right shoulder symptoms at consultation on 1 February 2015, I have some concerns about the accuracy. This is because the general practitioner has recorded "Rt shoulder still sore continue same plan, could not go to work on 22 due to scar tissue". Review of the notes reveals that there was no prior entry of soreness of the right shoulder and the scar tissue relates to the left shoulder. It is only logical to conclude that an individual cannot continue on the same plan for the right shoulder when no such plan existed. I am concerned that the reference to the right shoulder is in error, (meant to have recorded the left shoulder), given the specific reference to the scar tissue. This concern is supported by the fact that the allied health practitioners at the time only referred to the left shoulder. I make this comment in passing as nothing really turns on this.
10. I have not disregarded the few records referring to neck pain, however the cause of this pain has not been identified in the notes with the exception of the referral on 5 April 2023 where "referred neck pain due to previous labrum tear" [45] is documented. The "pain" which again I will highlight is a symptom and not a condition, has not been ascribed to any standalone condition. I am mindful that a consequential condition does not require the identification of pathology (Kumar), however referred pain from the left shoulder into the neck would not qualify for a finding of a neck condition. As an aside, and being very careful to not trespass on the role of a Medical Assessor, my interpretation of the radiological findings in the neck show that the majority of degenerative changes are on the right side. The notes do not assist in understanding whether the pain/tension/spasm were the result of the left shoulder injury. Further, they do not assist in the common sense assessment of this matter as I cannot be satisfied on the chain of causation.
11. The respondent emphasized that the applicant regularly attends the gym and sought treatment for upper body and neck tension following such activities. The applicant informs me that he has always attended the gym and that it is an important part of his life. He states he has modified his gym activities, but this appears to be inconsistent with the note of Momentum Physiotherapy in which it was recorded "increased tension though neck and UB (upper back) with increased heavy ex (exercises) at gym". This note is dated

11 December 2017 well after the frozen shoulder had recovered. 12. Further, the applicant has emphasised that he has altered the way he undertakes his tasks (despite being certified fit for pre-injury duties) in order to avoid aggravations. If this is the case, the argument of overuse fails on that level, that is, if care is taken to avoid aggravating activities there cannot logically (common sense) be a claim of overuse. However, I understand the applicant seeks to advance an argument the overuse in the right shoulder was caused by an inability to use the left shoulder fully, but this is at odds with the surgical outcomes and clinical findings reported by Dr Bokor and Dr Rizkallah who reported satisfactory movement and strength post left shoulder surgery. It is also at odds with the applicant's activities of daily living in that he has predominantly undertaken administrative work since resignation from the respondent and has continued to undergo gymnasium activity, including heavy exercises as recorded by the practitioner above[46]. It is also at odds with the applicant being right side dominant. The applicant has not demonstrated which activities have caused overuse or disruption to his posture and I find that the submissions made by the respondent on this point and specifically with reference to Moriarty are cogent. 13. Much was advanced in relation to the common sense test, specifically if the applicant had a frozen left shoulder, then clearly the right shoulder would have taken additional load and there would have been postural impact on the neck. When embarking on a common sense assessment, I considered the chronology, medical evidence (and lack thereof), factual statements and overall found I was left with more questions than answers causing me to cast doubt on the common sense causal case theory and chain of causation advanced by the applicant. This is because;

(a) there are significant gaps in the initial complaint of symptoms in the right shoulder and neck and over the ensuing nine years since the left shoulder injury;

(b) the complaints are at odds with the applicant's assertions that he has altered his activity and lifestyle to avoid overuse, but now claims that the conditions arise from overuse or postural changes;

(c) despite having over 150 consultations with various practitioners including allied health specialists, there is no record of complaint in the right shoulder or neck on account of postural amendments or overuse, the first such suggestion arising from the qualified assessment of Dr Papantoniou;

(d) the consequential claims in the right shoulder and neck are based on scant records of "pain" in those areas recorded by various practitioners over the last decade. Pain is a symptom and not a condition and the cause of the pain has not been identified;

(e) the symptoms in the neck have been described as referred pain from the left shoulder, which is not a stand-alone condition in the neck but related to the left shoulder; and

(f) the evidence suggests that the applicant has sustained "pain" following heavy exercise in the gym which is inconsistent with his statement of altered activity and restrictions in activities of daily living. I find these statements to be self-serving and impugn his credibility.

1. Generally speaking the absence of treatment will not preventing a finding of consequential condition, however, given the case history and extensive medical management, in the circumstances of this case, I find that it does.
2. For the reasons above, I find the applicant has not discharged his onus in establishing a consequential condition in the right shoulder or neck resulting from his left shoulder injury. This is because I have not been satisfied to a sense of actual persuasion or affirmative satisfaction that his case has been made out.

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

[31] Murphy v Allity Management Services Pty Ltd [2015] NSW WCC PD 49.

[32] Moriarty-Baes v Office Works Superstores Pty Ltd [2015] NSWWCCPD 28.

[33] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.

[34] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).

[35] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).

[36] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.

[37] Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648.

[38] As DP Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker's credibility is not an issue (see also Chanaar v Zarour [2011] NSWCA 199 at [86]).

[39] Munce v Thomson Cool Rooms Pty Ltd [2017] NSWWCCPD 39 at paragraph 101.

[40] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [130] McColl JA.

[41] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.

[42] Hammond Care v Calka [2016] NSWWCCPD 2 Roche DP.

[43] Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 and [1985] HCA 38 and Hancock v East Coast Timbers Pty Ltd [2011] NSWCA 11.

[44] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 and King v Collins [2007] NSWCA 122.