CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Ozer v ANZ Australia Pty Ltd [2025] NSWPIC 75	
		
APPLICANT:	Seval Ozer	
		
RESPONDENT:	ANZ Australia Pty Ltd	
		
Member:	Cameron Burge	
		
DATE OF DECISION:	6 March 2025	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; permanent impairment compensation; whether harm to body system at issue is categorised as injury or consequential condition; difference between injury and consequential condition; the applicant suffered a fall in the course of her employment which caused a fractured head of her right humerus; she also claimed an injury to her right shoulder; the respondent accepted liability for a consequential condition to the right shoulder but disputed injury to that body system; applicant claimed consequential conditions to her neck and left shoulder which were disputed; Held – the applicant suffered injury to her right shoulder in the fall at issue; the contemporaneous material demonstrated the requisite sudden or identifiable pathological change necessary to find injury pursuant to section 4; Castro v State Transit Authority (NSW) referred to; the applicant is not required to identify pathological change sufficient to satisfy the requirements of section 4 in order to prove a consequential condition to her neck and left shoulder; Kumar v Royal Comfort Bedding Pty Ltd, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, and Moon v Conmah Pty Ltd followed; the question of whether a consequential condition exists is one of causation; as such it is necessary to determine the question by way of a commonsense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates; the preponderance of the medical and lay evidence in this matter establishes the presence of consequential conditions to the neck and left shoulder; matter remitted to the President for referral of all claimed body systems to a Medical Assessor to determine the applicant’s whole person impairment.	
determinations made:	The Commission determines:
1.	Within seven days of the hearing held on 4 March 2025, the parties are to lodge their respective Applications to Lodge Additional Documents.
2.	The applicant suffered an injury to her right upper extremity (humerus and shoulder) in the course of her employment with the respondent on 28 December 2018. 
3.	As a result of her injury, the applicant developed consequential conditions to her cervical spine and left upper extremity (shoulder).
4.	The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: 
Date of injury: 28 December 2018.
Body systems referred: right upper extremity (humerus and shoulder), cervical spine (consequential condition) and left upper extremity (shoulder) (consequential condition). 
Method of assessment: whole person impairment. 
5.	The documents to be referred to the Medical Assessor to assist with their determination are to include the following: 
(a)	this Certificate of Determination and Statement of Reasons;
(b)	Application to Resolve a Dispute and attachments; 
(c)	Reply and attachments save for all reports of Dr Miniter and Dr Reiter which are not to be referred; 
(d)	applicant's Application to Lodge Additional Documents dated 4 March 2024 and attachments, and 
(e)	respondent's Application to Lodge Additional Documents dated 4 March 2025 and attachments except for the report of Dr Reiter dated 28 February 2025 which is not to be referred to the Medical Assessor. 
A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS
BACKGROUND
1.	On 28 December 2018, the applicant, Seval Ozer suffered an injury in the course of her employment with ANZ Australia Pty Limited (the respondent) when she went to her car during her lunch break and tripped over a chain in the staff carpark, landing heavily on her right side.
2.	There is no issue the applicant suffered a severely fractured head of her right humerus in the fall at issue. 
3.	Additionally, the applicant claims that she suffered a frank injury to her right shoulder in the incident at issue, together with consequential conditions to her cervical spine and left shoulder.
4.	The respondent accepts liability for the fractured right humerus and for a consequential condition to the right shoulder. It disputes a frank injury to the right shoulder, together with disputing the alleged consequential conditions to the cervical spine and left shoulder.
5.	There is no question that regardless of the outcome of this dispute, the applicant's right upper extremity (humerus and shoulder) will be referred for medical assessment. The question is whether the other claimed body systems will also form part of that referral.
ISSUES FOR DETERMINATION
6.	The parties agree that the following issues remain in dispute:
(a)	whether the applicant's right shoulder suffered a frank injury or a consequential condition, and
(b)	whether the applicant suffered consequential conditions to her cervical spine and/or left upper extremity (shoulder).
7.	The applicant's claim with respect to her cervical spine and left shoulder were pleaded as frank injuries and in the alternative consequential conditions. At the hearing, the applicant claimed only that those body systems were affected by consequential conditions and abandoned her claim with respect to frank injury. 
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
8.	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. 
9.	The parties attended a hearing on 4 March 2025. Ms Grotte appeared for the applicant. Mr Gaitanis appeared for the respondent.
10.	At the hearing, the respondent elected not to rely on any of the medical reports of A/Prof Miniter or any of the medical reports of Dr Reiter. As such, the respondent's independent medical examiner (IME) evidence was that of Dr Rowe. 
11.	Additionally, both parties sought to rely on additional documents at the hearing. No objection was taken to the proposed late documents, which were forwarded to the Commission by way of email. Directions were made for the lodgement of the additional documents by the respective parties within seven days of the date of the hearing. 
EVIDENCE
Documentary evidence
12.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	Application to Resolve a Dispute (the Application) and attachments;
(b)	Reply and attachments save for the reports of A/Prof Miniter and Dr Reiter which were not relied upon and not taken into consideration;
(c)	applicant's Application to Lodge Additional Documents (ALAD) dated 
4 March 2025 and attachments, and 
(d)	respondent's ALAD dated 4 March 2025 and attachments save for the report of Dr Reiter dated 28 February 2025 which was not taken into consideration and not relied upon. 
Oral evidence
13.	There was no oral evidence called at the hearing.
FINDINGS AND REASONS 
Whether the applicant's right shoulder suffered a frank injury or a consequential condition
14.	In my view, the evidence in relation to the applicant's right shoulder overwhelmingly favours a finding of frank injury instead of consequential condition. Notwithstanding the respondent's concession the right shoulder condition was a consequence of the frank injury to the fractured humerus, their own IME Dr Rowe found the diagnosis of the applicant's right upper extremity was "fractured neck of right humerus with residual stiffness in the right shoulder." Dr Rowe described the applicant's presentation in relation to the right shoulder symptoms as reasonable and consistent with "the injury."
15.	Additionally, when Dr Rowe was specifically asked whether he considered the claimant's right shoulder injury continued to be a consequence of the accepted right shoulder injury, or was attributable to some other cause unrelated to employment, Dr Rowe stated "the residual stiffness of the right shoulder is reasonably related to the subject accident. It was the neck of the humerus that was fractured, and Ms Ozer underwent surgical treatment. One would expect residual stiffness of the right shoulder following such an injury." Additionally, Dr Rowe opined it was reasonable to accept the fractured right humerus injury and the right shoulder stiffness were "the direct result of the subject accident."
16.	Dr Rowe’s view is informed by the mistaken belief the mechanism of the applicant’s fall was onto her right elbow, when in fact she landed on her entire right side including her shoulder, as is confirmed by contemporaneous histories contained within the clinical records. Those records confirm the presence of significant bruising around the applicant’s right shoulder, a pathological change sufficient to ground a finding of injury as that term is defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act). The authorities make clear there is a requirement for a sudden or identifiable pathological change to a body system in order to ground a finding of injury to it: see Castro v State Transit Authority (NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496 (Castro). 
17.	It is also noteworthy that following the injurious event at issue, the applicant attended her general practitioner (GP), Dr Vuong. An entry by Dr Vuong on the date of injury states:
"Fell onto the right shoulder today with pain and immobility of the right shoulder. In severe pain, unable to move the right arm. Depressed right shoulder.
Examination: 
Right shoulder: Tenderness of the lateral shoulder
Tenderness of the right upper humerus… 
Reason for contact: 
Dislocated shoulder
Management: Auburn Hospital Emergency for x-rays and treatment." (emphasis added)
18.	The applicant then attended Auburn Hospital on the date of the injury. The discharge summary from Auburn Hospital noted the applicant's presentation from after a fall in her carpark when she landed "onto her buttocks and right shoulder." The applicant was described as being in distress with pain, unable to move her right shoulder and was referred for an X-ray of the affected body system. The X-ray revealed an impacted fracture of the surgical neck of the right humerus which was significantly angulated.
19.	Ms Grotte submitted, and I accept, the reference in the discharge summary and GP clinical notes to symptoms in the applicant's right shoulder together with bruising in that region is perfectly consistent with a right shoulder injury.
20.	The applicant was referred to treating surgeon Dr Duckworth, who saw the applicant very shortly after the injury at issue, on 8 January 2019. Dr Duckworth noted the applicant fell onto her right shoulder and confirmed the diagnosis of fractured right head of humerus which was displaced and in two to three parts. Dr Duckworth carried out an open reduction and internal fixation of the applicant's right humerus fracture on 10 January 2019. According to Dr Duckworth, the applicant developed a severe capsulitis in her right shoulder and, despite the fracture being united, there was an element of osteopenia together with progressive loss of range of motion in the applicant's right shoulder.
21.	In my view, the evidence plainly supports a finding of frank injury to the right shoulder. The applicant was also referred to pain specialist Dr Nazha, who also refers to the applicant having suffered a fractured humerus and the presence of persistent pain affecting her upper arm and shoulder, including significant numbness overlying her shoulder and part of her arm and biceps.
22.	On balance, having regard to the totality of the medical evidence, I am of the view the applicant plainly suffered a frank injury in the course of her employment to her right shoulder. 
23.	Accordingly, there will be a finding to the effect of the applicant having suffered an injury to her right shoulder and this body system will be part of a medical referral to a Medical Assessor for determination of the applicant's whole person impairment.
Alleged consequential conditions to the cervical spine and left shoulder
24.	It is important at the outset to establish the relevant test for determining consequential conditions, particularly when there is the presence of pre-existing pathology in a body system which is suggested to be the cause of ongoing problems. 
25.	There is no issue the applicant had an episode of pre-existing neck pain approximately 17 months before the accident at issue, sufficiently serious that she consulted her GP, and some radiological investigations were undertaken which revealed the presence of degenerative changes. What is also apparent from the clinical records is the applicant then did not complain to any treating practitioner of ongoing issues in relation to her neck until well after the injurious event at issue. 
26.	The respondent submitted the applicant's neck symptoms were consistent with having been caused by the degenerative changes in that body system. However, the applicant claims a consequential condition, not a frank injury causative of pathological change.
27.	It is settled law an applicant does not need to meet the requirements of s 4 of the 1987 Act in order to achieve a finding of consequential condition. Rather, as the authorities make clear, what is required is a commonsense evaluation of the causal chain to determine whether the claimed consequential condition flows from the accepted injury: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
28.	In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with a question of whether an injured worker's shoulder condition resulted from mobilising whilst recuperating from an accepted back injury. In finding a consequential condition was present, the Deputy President noted:
“It is not necessary for Mr Kumar to establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009. Dr Wallace’s opinion may well be relevant to the ultimate question of whether the shoulder surgery is reasonably necessary, but it does not determine the question of whether the right shoulder condition has resulted from the back injury.”
29.	At [35] and following, Roche DP said:
“35.   By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.
36.	The Commission has considered claims of this kind in several decisions (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 (Davis); Vivaldo; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4 (Turner)) and has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).”
30.	The Deputy President’s reasoning was confirmed by Snell DP in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan).
31.	 At first instance, the arbitrator in Brennan was satisfied the applicant had complained of pain in her neck and there was an unbroken chain of causation from the injury to that condition. On appeal, Snell DP referred to the Commission's decision in Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon), which dealt with an alleged left shoulder consequential condition arising from an accepted right shoulder injury. In Moon, Roche DP said:
"44.	The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder. 
45.	It is therefore not necessary for Mr Moon to establish that he suffered an 'injury' to his left shoulder within the meaning of that term in s 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he suffered an 'injury' to his left shoulder in the course of his employment with Conmah they asked the wrong question."
32.	In this matter, the applicant's uncontested evidence in relation to the onset of symptoms in her neck and right shoulder is as follows:
"3.	Following my injury on 20 December 2018, I was heavily relying on my left arm for almost all tasks which required the use of my hands or arms due to the ongoing pain in my right arm, especially in the initial months after the reduction and internal fixation operation on 9 January 2019. 
4.	I was using my left arm almost single-handedly to do everyday tasks from lifting bags and other items, preparing meals, combing and washing my hair, reaching for things and balancing myself when changing sleeping or sitting positions. 
5.	A few months after my work injury, in around March 2019, I started having some pain and stiffness in my left shoulder and wrist due to the overuse of my left arm and hand. I did a scan on my left wrist which showed a normal result. I was more focused on treatments for my right shoulder and arm which was still in continuous pain after the operation. The left shoulder and wrist pain and stiffness symptoms was intermittent, I tried doing some massages at home when there were flareups for the pain. 
6.	In around October 2019, I returned to work on light duties. I relied more on my left arm for the teller machine duties. I tried to avoid using my right arm, but I still needed to use my right arm for duties such as typing, navigating iPad, teller machine and customer service duties. 
7.	I also used my left arm to get on and off the chair, which was higher than normal chairs, when working at the teller machine before I found it too difficult and changed to standing during my shift at the teller machine, especially as we would occasionally need to leave the teller machine to complete requests from clients. 
8.	The shift to the teller machines was rotated amongst staff for one hour a day. I would stand for the whole hour. 
9.	The pain in my left shoulder and wrist increased in intensity and frequency especially after a day of work. 
10.	I also developed pain in the left side of the base of my neck and low back after returning to work, 
11.	I was off work for 10 months after which time I felt pressured to return to work as my employer expressed that my treatment and wages would cease if I did not return to work. 
12.	After resuming work, I was given light duties without needing to carry heavy coin bags and perform inventory duties. I was also only able to work with the teller machine on my left side as I continued to have pain and stiffness in my right shoulder and would have difficulty performing the repetitive movements required in my work duties."
33.	It is uncontested the applicant's symptoms in her left shoulder and neck were not reported for at least several months after her initial injury.
34.	Treating surgeon Dr Duckworth first recorded pain in the applicant's neck from July 2019 onwards. On 4 July 2019, in a report to the applicant's GP, Dr Duckworth referred to the applicant's ongoing issues and said "she still has a lot of pain, neck stiffness, loss of range of motion of her neck and loss of range of motion of her shoulder, wrist and elbow." In this instance, it is common ground the reference to the applicant's shoulder was her right shoulder.
35.	In a report dated 15 July 2021 to the applicant's GP, Dr Duckworth noted the applicant had had an MRI of her neck. He recommended ongoing conservative treatment of the applicant's symptoms.
36.	On 1 March 2022, Dr Duckworth reported:
"I reviewed Mrs Ozer today in regards to neck pain and left-sided shoulder pain and pain radiating down her arm. This has been ongoing for the last 12 months and is exacerbated by use.
It appears that her neck is bothering her, causing radicular pain down the left side. She is still under the care of Dr Nazha who hopefully can address some of her pain."
37.	On 21 July 2022, Dr Duckworth recorded similar complaints. In a report to the applicant's solicitors dated 28 January 2024, Dr Duckworth set out the history of his treatment of the applicant. He noted the applicant had a chronic problem with her right shoulder, "neck problem and left shoulder problem as a result of a work injury and will always have difficulty with heavy overhead use of her [right] arm." 
38.	When specifically asked whether there was any causal connection between the incident at issue and the injury sustained, Dr Duckworth said, "they are all related…. Mrs Ozer continues to have a chronic problem affecting her right shoulder and now her left shoulder and neck. These are all related to her original injury."
39.	It should be noted Dr Duckworth provisionally diagnosed the applicant as suffering from a chronic regional pain syndrome, however, that diagnosis was not correct and was invalidated once the applicant came under the care of pain specialist Dr Nazha. No claim in relation to chronic regional pain syndrome is made.
40.	On balance, I am satisfied the applicant's neck symptoms and those in her left shoulder are as a consequence of her right upper extremity injury. Although the applicant's IME Dr Bodel describes the neck injury as a frank one, the balance of the evidence in my view supports a finding of consequential condition. 
41.	Notwithstanding the first entries in relation to the neck and left shoulder are sometime after the initial injury, in my view this is not unusual, particularly when the consequential conditions are said to have arisen from overuse. Nor does a delay in reporting symptoms alleged to arise from consequential conditions necessarily invalidate the presence of such conditions, particularly where it is alleged they have arisen from overuse. 
42.	In my view, Dr Duckworth's opinion, unless it can be shown there is an error in the history taken by him or in his methodology of assessment, is entitled to significant weight as he is a treating specialist rather than an IME.
43.	As Kirby P (as he then was) noted in Kooragang, the fact there has been some effluxion of time between an injurious event and the onset of symptomology does not render the claim invalid. As his Honour noted, what is required is a commonsense evaluation of the causal chain.
44.	In this matter, the applicant suffered an extremely serious injury to her right upper extremity. She fractured the head of her humerus and required open reduction and internal fixation. There is no evidence to contradict her statement that she used her left arm extensively after her injury, and that contention is an eminently sensible one given the severity of her injury.
45.	I accept the applicant as a witness of truth. She returned to work comparatively quickly after the extremely serious injury which she suffered, and it can therefore not be said (nor was it suggested) that she is a malingerer. The reports of the applicant's GP, her treating surgeon, the clinical notes of the GP and her physiotherapist all support the onset of both neck and left shoulder symptoms as a consequence of the right upper extremity injury.
46.	On a commonsense basis, having regard to the totality of the evidence, I am comfortably satisfied on the balance of probabilities that the applicant's left shoulder and neck conditions are consequent upon her accepted injury.
SUMMARY
47.	For these reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.