1. The documents to be reviewed by the Medical Assessor are:

(a) Application for Assessment by a Medical Assessorand attached documents;

(b) Response and attached documents, and

(c) Applications to Lodge Additional Documents (ALAD) dated 29 October 2025 and 25 November 2025, excluding the report of Dr Millons in ALAD 25 November 2025.

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

1. Graeme Rogers (the applicant) fell from a ladder in the course of his employment with Show Support Pty Ltd (the respondent) on 13 February 2020. The applicant seeks referral to a Medical Assessor for assessment of permanent impairment for the purpose of ascertaining threshold in respect of a claim pursuant to s 39 for weekly compensation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. 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.
2. At the hearing of this matter the applicant was represented by Mr Perry of counsel, and the respondent by Mr Rickard of counsel.

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

(a) Application for Assessment by a Medical Assessor and attached documents;

(b) Response and attached documents, and

(c) Applications to Lodge Additional Documents dated 29 October 2025 and 25 November 2025.

1. The respondent elected not to rely upon the report of Dr Millons dated 30 October 2025, due to reg 44 issue in respect of that report and the report of Dr Gray dated 4 October 2023.

1. The following documents were referred to in submissions:

(a) applicant's statement dated 11 September 2025;

(b) clinical records of the Revival Medical Centre, including those of Dr Basavaraj;

(c) imaging/scan reports including CT lumbar spine and CT pelvis, recorded in clinical notes dated 31 March 2022, and X-ray pelvis and both hips dated 24 July 2023;

(d) reports of Dr Basavaraj, general practitioner (GP) dated 5 April 2021;

(e) reports of Dr Gothelf, treating foot, ankle and shoulder surgeon, including report dated 27 March 2020;

(f) reports of Dr Graham, treating hip and knee surgeon, including reports dated 26 July 2023, 16 August 2023, 13 October 2023 and 21 November 2023;

(g) report of Dr Doig, general orthopaedics and trauma specialist qualified by the respondent, dated 7 June 2022;

(h) report of Dr Gray, orthopaedic surgeon qualified by the respondent, dated 4 October 2023, and

(i) report of Dr Habib, orthopaedic surgeon qualified by the applicant, dated 26 August 2025.

1. I will refer to the above documents where relevant in reasons below.

1. This is an application for referral to a Medical Assessor for assessment of permanent impairment, having regard to the applicant's potential entitlement to claim weekly compensation pursuant to s 39 of the Workers Compensation Act 1987, that is a threshold dispute in this regard.
2. There was no dispute that the applicant fell from a ladder on 13 February 2020 in the course of his employment with the respondent and sustained injury to his left shoulder and a consequential back condition. A s 66 settlement had been agreed in June 2022 in respect of the left upper extremity and lumbar spine, following the report of Dr Doig.
3. The dispute that is the subject of these proceedings is whether the applicant also suffered injury to his right hip in the fall of 13 February 2020.
4. Before embarking on a consideration of submissions with particular regard to history, clinical records and imaging/scans, it is worth noting some of the context of injury and treatment in which the applicant found himself following the subject injury:

(a) although initial GP consultations appeared to be in person, from 2 April 2020 conferences were increasingly, but not always, by way of teleconference/videoconference/telehealth with pandemic coronavirus noted, and where in person, distancing measures were noted;

(b) treatment and management of unrelated epilepsy was also given;

(c) pain in the left shoulder was noted as significant and continuing, for example it was "killing me" (29 July 2020), with prescription of medication including Celebrex which was noted to result in constipation;

(d) Dr Gothelf performed surgery on the left shoulder in August 2020, following which the applicant's left arm was in a sling for six weeks with ensuing physiotherapy, with "bad" shoulder pain noted in October 2020, and memory "affected due to pain" (12 November 2020);

(e) sleep was affected following the surgery of August 2020;

(f) recommendation by Dr Gothelf in December 2020 for further left shoulder surgery to take place the following year;

(g) Dr Gothelf performed further left shoulder surgery on 14 January 2021, following which the applicant was in a lot of pain and was prescribed Endone, Targin and anti-inflammatories, and underwent physiotherapy;

(h) Family issues, resulting in change of accommodation in February 2021;

(i) episodes of psychosis noted in February 2021 with discussion of urgent need for mental health assessment, and referral to mental health team, subsequent psychiatric assessment and no further action in that regard;

(j) consideration of continuing Endone prescription in February 2021, and

(k) "Walks out in tears with pains" following physiotherapy treatment of the left shoulder in February 2021.

1. The applicant in his statement said that the main focus of treatment initially was for his left shoulder. I accept that evidence. It is also clear from the above that the applicant was in significant pain and underwent significant treatment for his left shoulder, as well as other matters, for at least twelve months following the fall of 13 February 2020. The applicant's pain and difficulties did not, however, stop in February 2021.
2. The first point of contention between the parties was the extent of the fall on 13 February 2020. The earliest recorded histories before me were recorded by Dr Basavaraj on 21 February 2020 and Dr Gothelf on 27 March 2020. Both noted the history of a fall of 5.6 metres backwards from or with the ladder, falling onto the left shoulder.
3. Later histories, including Dr Doig on 7 June 2022, Dr Graham on 26 July 2023, Dr Gray on 4 October 2023, and Dr Habib on 26 August 2025 all recorded a height of about 15 to 16 metres. Dr Gray also noted an incident report of a 3.5m fall, an incident investigation form indicating a maximum length of the ladder of 6m, with a shorter ladder chosen. Dr Graham noted and commented on Dr Gray's report. It is be noted that it was not controversial that the histories also recorded the applicant falling backwards, although Dr Basavaraj in his report said he fell backwards and sideways, while the clinical note of 21 February 2020 recorded falling backwards and twisting as he fell. There was also evidence that the bracket which the applicant and which gave way, thus resulting in the fall, was held by the applicant prior to his fall, the timing of which was unclear.
4. In my view, the histories recorded by Dr Basavaraj and Dr Gothelf carry the greatest weight, as they were recorded much closer in time to the accident, and are preferred. I was not taken to evidence of incident reporting. This was some indication from the bar table on behalf of the applicant as to other details of the accident, but I am not prepared to accept such without evidence being before me.
5. As to the latter histories, although I do not prefer them as evidence of the height or magnitude of the fall, in my view they indicate that the applicant fell from a substantial height. This is important because the recording of a height of 5.6m by Dr Basavaraj and Dr Gothelf, in circumstances noted above following a severe shoulder injury, seems to be somewhat precise. In my view, on balance having regard to acceptable evidence, the fall was at least 5.6m, with a component involving falling backwards and twisting as the applicant fell, following the giving way of the rod or bar.
6. Also disputed were matters said to arise from the clinical records, put generally:

(a) the applicant was able to distinguish between symptoms in the right hip and the pelvis, which are different structural parts of the body. Complaints of pelvis pain were just that, pain in the pelvis, not the hip.

(b) There was no reference to the hip until May 2022, and at the time it was the left hip, not the right, and no reference to the right hip until 6 January 2023, when there was a clear distinction made between hip and back pain with reference to a fall from a chair.

(c) No documented evidence of difficulty walking or related complaints of pain immediately following the subject accident, with evidence of the applicant walking home from hospital on the day,

1. The applicant pointed to an X-ray pelvis and both hips report of 24 July 2023, which noted fall injury in the past, severe left hip pain, moderately severe arthritic change both hips, more severe on the right, and similar features to CT scan on 21 March 2022.
2. I do not accept the respondent's submissions. These submissions rely partly upon an argument of lack of confirming contemporaneous record, and partly that such record indicated that applicant knew that the pain was not in his hip. My reasons in this regard are:

(a) it cannot be assumed that the applicant either generally, or at particular times in the past as recorded in the clinical notes, knew either of an anatomical difference or of a structural difference in the relevant sense. Clinical entries in isolation from 2022 and 2023 referring to the pelvis and hips do not in my view support such a conclusion.

(b) Reporting and recording of pain in the brief clinical entries do not indicate that they were more than a summary or that they were precise in terms of elucidating the location of pain, nor the process of discussion between practitioner and the applicant at the time. The applicant was receiving extensive treatment for his shoulder and was in considerable pain in that regard.

(c) There was no medical opinion to support the implicit contention that these were anatomically and structurally distinct areas, in which complaint of pelvis pain either precluded or did not necessarily support hip symptoms or injury. Dr Gray did not say this, but instead pointed to the absence of documented evidence.

(d) In any event, the applicant maintained in his statement that he did complain of right hip pain from the beginning.

(e) It is necessary to apply caution to consideration of such evidence, having regard to the principle expressed in Mason v Demasi.[1]

(f) It is necessary to also consider the context and the significance of the fall, which was conceded by Dr Gray as having the potential to cause multiple injuries, including of the hip.

1. The initial consultation with Dr Basavaraj on 21 February 2020 referred to "lots of pains in his pelvis" at the time of the subject accident. The applicant in his statement said that he landed on his left side and pelvis and that he had complained from the beginning of pain in his left shoulder, right hip and pelvis. I have not accepted that the clinical records contradict or weigh against the applicant's evidence in this regard.
2. An expectation of inability or difficulty travelling and walking home from hospital after injury, as expressed by Dr Gray, was not shared by Dr Graham, who considered the opinion and report of Dr Gray. Dr Gray pointed to this factor in the context of absence of severe injury to the right hip, whereas Dr Graham opined aggravation, which in my view is different as to degree at time of accident, although not necessarily in terms of painful effect in terms of aggravation. Dr Gray did later in his report consider aggravation or acceleration, but in my view only on the basis of lack of documented evidence, which I do not regard as persuasive.
3. There is otherwise no other suggestion against the veracity of what the applicant has said. I accept the applicant's evidence in this regard.
4. Dr Gray premised his opinion against right hip injury on the basis of lack of reliable documented evidence in support. I have accepted the applicant's evidence. Accordingly, I am not persuaded by the opinion of Dr Gray in this regard.
5. However, Dr Gray concluded his opinion that on the basis of evidence available to him he could not confirm injury to the right hip in the fall, having acknowledged that a fall from a height has the potential to result in multiple musculoskeletal injuries. In my view, Dr Gray did not exclude the possibility of right injury in the subject fall, and he acknowledged that possibility. He had regard to the discrepancy in reported fall height. His view in this regard supports the applicant's case, in my opinion, on the basis of my acceptance of the applicant's evidence.
6. There was no disagreement among Drs Graham, Habib and Gray that the applicant had a pre-existing arthritic condition of the right hip. Dr Gray thought this was idiopathic and not the result of the subject injury, which I have not accepted.
7. Although Dr Graham noted a fall of 16 m, he did have regard to the report of Dr Gray, which noted the discrepancy in reported heights of the fall and purported travelling and walking from hospital and absence of symptoms, and Dr Graham maintained his opinion that the subject injury aggravated the underlying arthritis. I have accepted the evidence of the applicant that he suffered and complained of right hip symptoms from the time of the subject accident. Dr Gray, having noted the discrepancy in reported heights of the fall and not accepting that the height was as high as 16 m, nonetheless acknowledged the possibility of multiple musculoskeletal injuries in such a fall.
8. Dr Habib, although providing his opinion in terms of a fall of 16 m, accepted that injury in the right pelvis was a severe aggravation of the asymptomatic osteoarthritic right hip joint. Dr Habib's view is of some weight in supporting the view of Dr Graham.
9. I am satisfied that there was therefore a fair climate[2] for Dr Graham to provide his opinion. On balance, I prefer the opinion of Dr Graham, which in my view is more persuasive in respect of his opinion as to aggravation of pre-existing arthritic condition of the right hip. I find that the applicant suffered aggravation of pre-existing arthritic condition of his right hip as a result of the subject injury on 13 February 2020, pursuant to s 4(b)(ii) of the Workers Compensation Act 1987.
10. The applicant underwent total right hip replacement surgery by Dr Graham on 1 January 2024. Dr Graham was of the view that that surgery was effective for treating the aggravation of the underlying arthritis and that it was reasonably necessary for reasons that he provided. Dr Gray accepted that the hip replacement surgery was reasonably necessary. Dr Habib was of the view that the fall severely aggravated the underlying asymptomatic osteoarthritic right hip condition, necessitating the need for the surgery. I find that the total right hip replacement surgery by Dr Graham was reasonably necessary as a result of the subject injury.
11. As to the issue of whether employment was the main contributing factor to the aggravation of the right hip arthritic condition,[3] there were some submissions by the respondent in relation to clinical notes indicating pelvic pain in what was said to be an ambiguous context of later unrelated lifting, and hip pain falling off a chair, in relation to the back. These submissions, however, were in respect of the issues discussed above, not in relation to the issue of main contributing factor, and I am not persuaded that these instances are contrary to a finding of injury to the right hip, and they are also not accepted in relation to the issue of main contributing factor.
12. There was no medical opinion, nor was there any other evidence, to suggest that such instances had any effect on the aggravation of the applicant's arthritic right hip condition. There was no evidence before me of any pain in the right hip prior to the subject injury. It is a question of considering the evidence overall, not only the medical evidence,[4] as to whether employment was the main contributing factor to the aggravation of the pre-existing right hip arthritic condition.[5] Dr Graham and Dr Habib were of the opinion that the subject injury aggravated that pre-existing condition. I have not accepted the opinion of Dr Gray in this regard. I find that the applicant's employment with the respondent was the main contributing factor to the aggravation of the applicant's right hip arthritic condition.
13. The applicant is to be referred to a Medical Assessor for assessment of permanent impairment of the left upper extremity, lumbar spine and right lower extremity as a result of injury on 13 February 2020.

[1] [2009] NSWCA 227, Basten JA at 2

[2] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844.

[3] AV v AW [2020] NSWWCCPD 9 (AV v AW)