Agang v Telum Contract Labour Hire Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Agang v Telum Contract Labour Hire Pty Ltd [2023] NSWPIC 233
APPLICANT:	Deng Agang
RESPONDENT:	Telum Contract Labour Hire Pty Ltd
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	23 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; liability for injury to cervical spine accepted; applicant also claimed to have sustained injury to left shoulder; issue as to whether symptoms in applicant’s left shoulder were the result of radicular symptoms from his cervical spine, or the result of a discrete injury to his left shoulder; consideration of Nguyen v Cosmopolitan Homes; Held – award for respondent for injury to left shoulder; matter remitted to President of the Personal Injury Commission for referral to Medical Assessor for assessment of permanent impairment as a result of injury to cervical spine.
determinations made:	1. There is an award for the respondent for the claim for injury to the left shoulder. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 1 October 2022 – personal injury. (b) Body system/parts: cervical spine. (c) Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 18 April 2023 and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant, Deng Agang (Mr Agang), was employed by the respondent, Telum Contract Labour Hire Pty Ltd (Telum), as a crane operator/labourer.
Mr Agang sustained an injury to his cervical spine on a date that has been variously claimed to be 18 March 2019, 21 March 2019, and due to the nature and conditions of his employment, while lifting, carrying, and stacking timber. He also claims to have sustained an injury to his left shoulder.
By letter dated 1 October 2022, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant claimed the sum of $60,070 in respect of 24% whole person impairment (WPI) as a result of injury to his cervical spine and left shoulder on 21 March 2019 (deemed).
On 25 January 2023, the respondent’s insurer, Insurance and Care NSW (iCare) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
ICare disputed that Mr Agang had sustained injury to his left shoulder arising out of or in the course of his employment with the respondent. It advised that an offer of settlement in relation to permanent impairment as a result of the accepted injury to his cervical spine would be made under separate cover.
By letter dated 25 January 2023, the solicitors for the respondent advised the applicant’s solicitors that they were instructed to offer the applicant the sum of $39,340 in respect of 16% WPI as a result of injury to his cervical spine on 21 March 2019 (deemed).
The applicant lodged an Application to Resolve a Dispute (the Application) on
1 February 2023.
The applicant claimed that on 18 March 2019, he was “tasked with” lifting, carrying and stacking pieces of timber between concrete segments, which were to be used in the Sydney Metro Tunnel. He was required to move about 70 to 100 pieces of timber, each of which was about 1.5m long and 20cm wide and weighed approximately 40kg.
While lifting a piece of timber, the applicant experienced a “crackling sensation” in his neck and left shoulder. As a result of the nature and conditions of his employment, he had sustained injury to his cervical spine and left shoulder. In the alternative, he had sustained aggravation to underlying degenerative changes to the cervical spine and an acute left shoulder injury.
The Application claimed the sum of $67,070 in respect of 24% WPI as a result of injury to the cervical spine and left upper extremity on 1 October 2022 (the date of the claim for WPI).
The respondent lodged its Reply on 1 March 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained injury to his left shoulder, and
(b) whether employment was a substantial contributing factor to the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for conciliation/arbitration hearing on 9 May 2023. Mr Morgan of counsel, instructed by Mr Phan, appeared for the applicant, who was present with his wife. Mr Doak of counsel, instructed by Mr Murphy, appeared for the respondent. Ms Cuyca of EML also attended. She was excused from the hearing but was available to provide instructions had they been required.
During conciliation of the dispute, there was discussion about the application of cl 44 of Workers Compensation Regulation 2016.
The parties agreed that the applicant would not object to the respondent relying on both the reports of Dr Smith and Dr Bentivoglio; and the respondent would not object to the applicant relying on both the reports of Associate Professor Hope and Dr Poplawski.
It was also agreed that, regardless of the outcome of the dispute as to injury to the applicant’s left shoulder, the medical dispute would be remitted to the President for referral to a Medical Assessor, who would be provided with all the documents in evidence.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents, dated 18 April 2023, and attached documents, filed by the applicant.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Workers Injury Claim Form

The applicant, or it would appear someone on his behalf, completed a Workers Injury Claim Form (the claim form), which is signed but undated.
The descriptions of the tasks the applicant was performing when he was injured and what happened to cause the injury appear in the third person, which is why I have inferred that
Mr Agang did not himself complete the claim form. The date of the injury was stated to be “21/3/2019 (N & C)”.
The claim form states that in the week prior to 18 March 2019,
“he was experiencing gradual onset of pain in his left shoulder and neck due to performing the heavy manual laborious task of stacking the timber to separate the concrete segments on 18 March 2019. On Saturday, 16 March 2019, he was working and experienced an increase in his neck and shoulder pain due to the former duties and as such attended to [sic] his GP to report the injury on Monday 18 March 2019.”
The claim form stated that the parts of the applicant’s body that were affected were “neck and left shoulder/arm”. The issues that he thought would delay or prevent him returning to work were the neck and left shoulder/arm injuries.

Evidence of the applicant, Deng Agang

The applicant’s first statement is dated 24 September 2021.
He was employed by the respondent as a crane operator/labourer, this being the employment where he suffered an injury to his neck. He was sent to work for the host employer, Sydney Metro. He operated a crane and performed heavy labourer duties, such as lifting, carrying, and stacking pieces of timber.
He was advised that he suffered pre-existing cervical spondylosis. Despite this, he did not experience any symptoms or pain in his neck prior to the accident. He did not ever recall experiencing pain or sustaining injury to his neck or left shoulder prior to commencing employment at Telum.
On 18 March 2021[sic], he suffered an injury to his cervical spine and left shoulder.
He was “tasked with” lifting, carrying, and stacking pieces of timber between concrete segments. This involved about 70 to 100 pieces of timber. Each piece was about 1.5m long and 20cm wide. He would say each weighed approximately 40kg.
While lifting a piece of timber, he experienced a crackling sensation in his neck and left shoulder. He immediately felt a sensation in his neck and shoulder. However, he carried on with his duties, as he did not think much of it. He completed his duties and went home.
The next day, he experienced severe pain in his neck and left shoulder on waking. He attempted to work the next day. However, the pain was unbearable.
He reported his pain and injuries and went home. He attempted to rest in hope that the pain would settle. However, this did not happen. He consulted his general practitioner (GP),
Dr Matur Gak, on 21 March 2021 [sic].
Since then, he had continued to experience severe pain and symptoms in his neck, left shoulder, and left hand. The pain in his neck varied. However, there was constant pain and stiffness. Sometimes, the pain worsened to the point where it was unbearable. He had also lost sensation in his left shoulder and arm. He often experienced pins and needles down to his left hand.
He was often woken by symptoms in his neck, left shoulder, and left hand. He continued to experience pain and difficulties in his neck and left shoulder.
The applicant’s second statement is dated 31 January 2023.
On 18 March 2019, he complained to Dr Gak of pain in his left shoulder and pain coming from his neck. He explained to Dr Gak that he felt it was due to doing such heavy and repetitive work. Dr Gak prescribed Mobic and gave him a medical certificate.
“To be clear”, he experienced pain both in his left shoulder and neck when he reported his injuries to Dr Gak. At the time, he felt that his neck pain was worse, because the pain coming from his neck into his left arm was very frightening, and he had not experienced pain like that before.
When he first lodged his claim form with the insurer, he listed neck and left shoulder as his injuries.
On 10 May 2019, his GP completed a WorkCover certificate of capacity (COC), which listed the diagnosis of the neck injury and the left shoulder injury. He remembered giving this to his insurer.
On 24 June 2019, he again consulted Dr Gak, continuing to complain about his left shoulder and neck pain.
On 28 June 2019, Dr Gak referred him for a CT scan of his left shoulder. He did not undertake this. There is no evidence of this referral in the clinical records.
He recalled that in July 2019, his GP referred him to a neurosurgeon, advising him of his neck and shoulder pain caused by work.
He did not recall every date he consulted Dr Gak complaining of left shoulder pain, but it was continuous and frequent. He recalled complaining of his left shoulder almost every time he complained of neck pain.
The neck pain he experienced was also on the left side, and the radiating pain was from the neck into the left arm also, but did not stop in his shoulder. It went into his fingers. This was a different pain to the pain in his left shoulder.
His left shoulder pain was not like numbness and pins and needles. It was painful and he felt like he was restricted from moving it in a full range of motion, “like it gets stuck”.
When he spoke to his GP, he felt most of the focus was on his neck, because he had been recommended surgery, and it was disputed by the insurer. It was the more serious condition.
Following his injury, due to the pain coming into his left arm from his neck, he preferred the use of his right arm, so his left shoulder became increasingly stiff. He was not sure whether this made the injury to his shoulder worse, but he did feel it getting worse.
In about September 2021, he started seeing Dr (Morgan) Mo at Workers Doctors and continued complaining of left shoulder pain.
He underwent fusion surgery to his neck on 7 March 2022. He continued to struggle with ongoing pain, symptoms, limitations, and restrictions.

Medical evidence

Mt Druitt Medical and Dental Centre

On 20 November 2018, Dr Gak recorded painful right shoulder, post-injury. The applicant also had a bruised right fifth toe. The applicant was sent for X-rays and issued with an “Off Work Certificate”.
On 21 November 2018, Dr Gak recorded that X-ray confirmed early OA (osteoarthritis) in the applicant’s right shoulder. He also had a fracture of his toe.
On 18 March 2019, Dr Gak recorded left arm pain and paraesthesia for a few days. There was no swelling or obvious injury, “but handles heavy objects at work”. An “Off Work Certificate” was issued.
On 20 March 2019, Dr Gak recorded that the applicant had come for review and clearance. He felt much better on the left arm and wanted to return to work. “No other concerns today”.
On 21 March 2019, Dr Gak recorded that the applicant just wanted his medical certificate changed to include the type of work he did. “No other complaints voiced today”. Dr Gak issued a certificate that cleared Mr Agang to return to his normal duties as a construction labourer from 21 March 2019.
On 9 April 2019, Dr Gak recorded that the applicant still had some numbness and paraesthesia in his left arm. “No other associated symptoms.”
Dr Gak referred the applicant for CT of his cervical spine. The clinical details were “Painful neck + L arm paraesthesia. No obvious injury. Handles heavy objects at work.”
On 10 April 2019, Dr Gak recorded that the CT scan showed some degenerative changes and some contact on C6 nerve root. There were no fractures.
On 12 April 2019, Dr Gak recorded that the applicant wanted to claim his injury through workers compensation. He was advised to fill out “WC forms”. He also wanted to have the nerve block as recommended by the CT scan. He was issued with an initial COC.
The COC recorded a diagnosis of left shoulder/neck injury, the date of which was
18 March 2019. It “happened at work while lifting heavy objects (woods) [sic] at work”. The diagnosis remained consistent on later COCs, until 2 August 2019, when the diagnosis was recorded as multi-level cervical disc bulges, or disc lesions.
On 16 April 2019, Dr Gak reviewed the applicant after he had had an injection. There was some improvement of the left arm pain. “No other concerns voiced today”.
On 7 May 2019, Dr Gak recorded that the applicant still had pain on the right arm and shoulder (given the previous history, it is not clear whether this is an error for “left arm”). He had burning pain, and no swelling.
On 10 May 2019, Dr Gak recorded that the applicant had come for review and renewal of his workers compensation certificate. He was “doing well with his R arm injury. Less pain. Still not working”. (There is a COC dated 10 May 2019, so this may be an error for “left arm”, or Dr Gak may have examined both arms).
On 20 May 2019, Dr Gak recorded that the applicant still had left arm pains. “Some improvement with treatment. No swelling.”
On 3 June 2019, Dr Gak recorded that the applicant still had left arm pain “and neck as well.” He had “been asked by his lawyers to have an MRI”.
On 28 June 2019, Dr Gak recorded “injury shoulder”. He has not recorded whether this was the left or the right shoulder.
On 15 July 2019, the applicant’s MRI report was discussed. It showed multiple disc bulges, “for neurosurgeon opinion and management”.
Dr Gak referred the applicant to Dr S Nair, advising that he had multiple cervical spine disc bulges, causing severe neck and shoulder pains, which was work-related.
The applicant was referred to Dr Darweesh Al-Khawaja on 22 July 2019, as Dr Nair was unavailable. The referral recorded only “work related injury”.
On 27 July 2019, Dr Gak recorded that the applicant came for review of injury to his shoulder. Progress on his neck injury was discussed.
On 30 August 2019, Dr Gak recorded that the reason for contact was “injury shoulder”. The applicant came for his workers compensation renewal. He was “well today”.
On 4 October 2019, Dr Gak recorded the reason for contact as “pain – arm”.
On 25 November 2019, Dr Gak recorded that the applicant had neck pain with referred arm pain. He had had an exacerbation of his neck pain. “Known to have work-related neck pains.”
On 8 January 2020, Dr Savrina Zaman conducted a case conference with “Lisa and Ebony case manager on phone”. The applicant had three appointments booked for steroid injection by Dr Al-Khawaja. He had “quite good” neck movement observed by the doctor. There was a plan for a pain specialist and independent medical review.
On 27 February 2020, Dr Zaman recorded that the applicant had had his last steroid injection, but “says nothing helps with his pain”.
On 23 March 2020, Dr Zaman recorded that the rehabilitation provider had changed. “No contacts with rehab provider or case manager”.
The applicant was “really rude to me and my staff today – saying ‘why r u so confused? I don’t understand – don’t u know what to do or what?’”
On 14 April 2020, Dr Anita Nath recorded that the applicant attended for WorkCover medical certificate regarding his neck issue. He had had three cortisone injections. He was not taking any medication – “says don’t help so he doesn’t take anything”.
On 28 April 2020, Dr Chitra Fernando recorded that the applicant was a vague historian. He said he had a work injury one year ago. “Left sided neck pain”. He was not working and waiting for neck surgery.
On 25 May 2020, Dr Fernando recorded that the applicant was terminated from work. He was looking for jobs. He could increase lifting up to 8kg with his right hand. He was complaining of left neck pain.
On 23 June 2020, Dr Fernando recorded that the applicant had neck pain that was radiating to the left arm and left arm paraesthesia. He was waiting for surgery.
On 20 August 2020, Dr Fernando recorded that the applicant was still waiting for surgery. He was not doing physiotherapy.
On 17 September 2020, Dr Fernando recorded that the applicant was still waiting for surgery to his neck, which was still not approved. He was in pain. He was not working, even though he had been advised to do light duties. His range of motion of the neck was restricted to the left side. He had no paraesthesia of the left arm.
On 13 November 2020, Dr Fernando recorded that the applicant had ongoing neck pain. He said something was “touching in his neck”.
On 4 February 2021, Dr Fernando recorded that the applicant had ongoing neck pain. He had no information about surgery. He was not looking for jobs.
On 12 April 2021, Dr Fernando referred the applicant to Dr Al-Khawaja with “ongoing neck and arm pain in the left side” due to a work injury. He was waiting for MRI.
On 26 May 2021, Dr Fernando recorded that the applicant was still working as a crane operator, which appears to be incorrect His range of motion of the neck was restricted on the left. He was waiting for surgery.
On 3 September 2021, Dr Fernando recorded that the applicant had told her to speak to his lawyer. He was waiting for surgery. He was complaining of neck pain. He could currently do light duties.
Dr Fernando noted,
“His solicitor is arguing that he is not fit for work. I explained to him that he can talk, walk, eat, alert and can do some job with his restriction. I have seen him walking and talking with his mates for hours near the shopping centre. I had an argument with the lawyer and told him to get another GP. Solicitor was bullying me and continue to argue with me.”

Dr Fernando had “inherited” the applicant from Dr Zaman. She would not see him again.

Dr Darweesh Al-Khawaja – neurosurgeon

Dr Al-Khawaja reported to Dr Gak first on 28 September 2019.
Dr Al-Khawaja recorded that the applicant came to him with left arm pain. His job required carrying heavy timber all the time, and in March he started feeling severe left-sided pain. It started on the neck, then shifted down to the left arm, radiating around the C6/7 distribution. The applicant got pins and needles around the shoulder and arm area.
On examination, the applicant had limited neck movements to the left, and diminished left biceps jerk. His power was “fine”.
Dr Al-Khawaja noted that MRI showed C5/6 central and lateral canal narrowing, short C3/4 joint hypertrophy, and C6/7 left foraminal narrowing.
Dr Al-Khawaja recommended multi-level injections, mainly to the left side, including C3/4, C5/6, and C6/7 levels. If that failed, the applicant may require surgery, mainly for the C5/6 and C6/7 levels.
The applicant told Dr Al-Khawaja that he could not see on the right eye and could not count fingers.
Dr Al-Khawaja told the applicant to go immediately to emergency after leaving his rooms.
Mr Agang said he would do it and “they refer him to the Eye Centre also”. He understood this very well.
On 2 April 2020, Dr Al-Khawaja reported to Dr Gak that injection had not helped the applicant a great deal, and he still suffered from neck and left arm pain. He either needed to continue with physiotherapy and painkillers, if his symptoms were bearable, or they would have to go ahead with surgery.
On 7 April 2021, Dr Al-Khawaja reported to iCare.
The applicant’s job put a lot of strain on his cervical spine. The only explanation for his current problem was the irritation of the nerves on his cervical spine, which was triggered by lifting.
Because the applicant’s symptoms were purely in his arm, Dr Al-Khawaja planned to do a less invasive procedure by cleaning and shaving around the nerves.
On the same date, Dr Al-Khawaja reported to Dr Gak that the applicant was still “annoyed” with significant left arm pain.
On 27 January 2022, Dr Al-Khawaja reported that the applicant was still annoyed with significant left-sided arm and neck pain. Liability for surgery had been accepted.
On 9 April 2022, Dr Al-Khawaja reported to Dr Fernando that the applicant was four weeks post-surgery. He felt better than before. He still had some numbness around the left interscapular area.

Dr Anthony L G Smith – orthopaedic surgeon

Dr Smith was qualified by the respondent and reported on 6 May 2020.
Dr Smith recorded a history that the applicant was lifting some timber when he felt a “cracking” sensation in his neck. He continued working for another few days, but the pain became worse. He had difficulty walking and was bent forward.
The applicant consulted a doctor, who recommended CT and MRI of the neck. He was referred to Dr Al-Khawaja. He had several injections into his neck, with no real benefit.
The applicant had pain in his neck, radiating to the right (which appears to be an error) of the neck and the shoulder. There was pain radiating down to the hand, which was tingling. He had had medication but no physiotherapy. He was no better and surgery had been recommended.
Dr Smith referred to the MRI report.
On examination, Dr Smith recorded normal cervical lordosis and normal range of movement of the neck in all directions without complaint of pain. The applicant’s shoulders moved normally in range and rhythm. He complained of an itching sensation in the left hand and had global power loss of all movements in the left upper limb, unaccompanied by any wasting or reflex change.
Dr Smith opined that the applicant had very extensive cervical degenerative change that long pre-dated the onset of symptoms. On 29 March 2019 [sic] he sustained an initial aggravation to this pre-existing abnormality. In Dr Smith’s opinion, the effects of the injury had ceased.
The applicant was fit to work if he did not have to engage in overhead activity that was repetitive and/or continuous and/or heavy.

Dr John Bentivoglio – orthopaedic surgeon

Dr Bentivoglio was qualified by the respondent and reported first on 3 May 2021.
Dr Bentivoglio recorded a history that the applicant had to do a lot of lifting timber for the whole day on 21 March 2019. He did not experience symptoms that day, but on the following day started to experience symptoms in his neck, with radiation towards his left upper limb. He had not had previous problems with his neck.
The applicant was referred by his local doctor for CT and MRI, and as a result of the findings was referred to Dr Al-Khawaja. He arranged for several CT-guided cortisone injections, which did not improve the applicant’s symptoms. Dr Al-Khawaja felt he would benefit from surgery to his neck.
Dr Bentivoglio recorded that the applicant always had some neck pain, fluctuating in severity. He also had pain radiating down his left upper limb, extending to involve the whole of his left hand. He felt that the movement of his neck caused pain. He noticed some crepitations on moving his neck, which generally worsened his neck symptoms. He felt that, if anything, his neck symptoms had worsened recently.
On examination, Dr Bentivoglio recorded no paravertebral muscle spasm, and detected no localising motor sensory reflex abnormalities in the applicant’s upper limbs. He had some patchy sensory loss involving his left upper limb, but it did not conform to any particular dermatome pattern. There was no significant muscle wasting in the left forearm. He had at least two thirds normal range of movement in his cervical spine.
Dr Bentivoglio reviewed the applicant’s cervical MRI scan. He diagnosed extensive degenerative disc disease, from C2 to T1, producing neural foraminal narrowing at at least four levels of the applicant’s cervical spine.
Dr Bentivoglio opined that there was no evidence of nerve root irritation or compression to suggest Mr Agang would benefit from aggressive modalities of treatment. With every level of his cervical spine involved in the disease process, surgical treatment on two levels would not improve his symptoms. Any aggravation by his employment in March 2019 had long since settled.
The applicant was fit for restricted duties. He should avoid duties that were arduous or required him to work in confined spaces. He should also avoid repetitively lifting objects of 15kg.
Dr Bentivoglio next reported on 28 November 2022.
The history recorded was consistent with Dr Bentivoglio’s previous report. The applicant had undergone surgery in March 2022, and felt he had been helped by the treatment. He was having physiotherapy twice a week.
The applicant always had neck pain. His symptoms worsened with activities. He still had some pain radiating towards his left shoulder and down his left upper limb to involve each hand (This appears to be an error). The pain involved all the fingers of his left hand. He noted some crepitation when moving his neck, which generally worsened his neck symptoms. He felt he had decreased movement in his neck. All movements appeared to be equally diminished. He did not feel there had been any improvement in his neck symptoms recently.
On examination, Dr Bentivoglio recorded no muscle wasting of the forearms or muscle groups. The applicant demonstrated almost full range of movement in his cervical spine.
Dr Bentivoglio was unable to palpate any crepitation. There was no paravertebral muscle spasm. The applicant had equally diminished reflexes involving his upper limbs. There were no detectable motor abnormalities in his upper limbs. He did have a glove and stocking type distribution of sensory loss involving his left upper limb, extending to the elbow.
Dr Bentivoglio found no muscle wasting in the applicant’s shoulder girdle. There was no crepitation on moving his shoulder. He demonstrated a full range of movement.
Dr Bentivoglio opined that any symptoms he was experiencing in his left shoulder were referred symptoms from his neck.
Dr Bentivoglio’s opinion as to the diagnosis of the applicant’s cervical spine remained unchanged. As regards Mr Agang’s left shoulder, he opined that the symptoms he was experiencing were referred from his neck complaints, as he had a full range of movement in his left shoulder and had not had any investigations of this shoulder. His shoulder was “not a work injury”.
Dr Bentivoglio assessed the applicant’s WPI as 15%, as a result of injury to his cervical spine.

Associate Professor Nigel Hope – orthopaedic surgeon

A/Prof Hope was qualified by the applicant’s solicitors and reported on 30 August 2021.
A/Prof Hope noted that the applicant had pre-existing asymptomatic cervical spondylosis. On 21 March 2019, cervical pain began during heavy lifting.
Two years after the injury, the applicant had cervical pain radiating to the left upper limb, with cervical stiffness causing moderate functional loss.
On examination, A/Prof Hope recorded that there was normal alignment of the cervical spine, no upper limb muscle wasting, moderate mid-cervical left sided paraspinal tenderness, moderate stiffness, asymmetric loss of left lateral flexion and rotation, loss of light touch sensation in the entire left upper limb (C5-T2 dermatomes), with normal upper limb neurological examination.
The MRI and CT scans showed pre-existing cervical spondylosis that had been permanently aggravated. That was A/Prof Hope’s diagnosis.
A/Prof Hope opined that permanent suitable duties were required, with a sitting limit of 20 minutes and no repetitive use of the left upper limb.
A/Prof Hope opined that the proposed surgery was reasonably necessary. The MRI and CT clearly showed compressive spondylosis correlating with pain radiating to the left upper limb. The applicant’s symptoms were directly due to the permanent aggravation of the cervical spondylosis that occurred at work on 21 March 2019.

Workers Doctors

On 15 September 2021, Dr Eric Lim recorded that the applicant had initially presented on
14 September 2021 following neck/shoulder/back injuries sustained on 21 March 2019.
Dr Lim noted neck pain radiating down the left shoulder, left arm pain, pins and needles in the left hand, lower back pain, low mood, and trouble sleeping.
On 23 September 2021, Dr Bhisham Singh recorded that the applicant had an injury to his neck two years ago, while lifting heavy timber. He complained of neck pain “up”. He could not remember where he got his MRI scan, and Dr Singh had no paperwork, so he arranged to see the applicant in a week.
On 30 September 2021, Dr Lim recorded neck and back pain, “neck > back”. The applicant had left shoulder pain and left hand pins and needles.
On 6 December 2021, Dr Lim recorded that the applicant had ongoing neck issues, pain with restricted movement. He had left hand pins and needles.
The COC issued by Dr Lim recorded diagnoses of cervical spine degenerative changes; C5/6 and C6/7 disc osteophyte complex with foraminal narrowing, left shoulder strain; lumbar spine sprain; and depression. Those diagnoses were repeated on subsequent COCs. “Cervical fusion” or “cervical surgery” was added after the surgery.
On 7 September 2022, Dr Mo reported that the applicant’s diagnosis was cervical spine degenerative changes [at] C5/6, C6/7 disc osteophyte complex with foraminal narrowing; cervical surgery; left shoulder strain; lumbar spine strain; and depression.
The applicant’s symptoms were neck pain radiating down the left shoulder; left arm pain; pins and needles in the left hand; lower back pain; low mood; and trouble sleeping.
On 10 October 2022, Dr Ben Dickson recorded that the applicant had ongoing pain in the neck; some paraesthesia at the hand; and ongoing pain in the left shoulder.
On 9 March 2023, Dr Mo referred the applicant for MRI of his left shoulder. The referral recorded that the applicant had persistent left shoulder pain in the setting of a neck workplace injury. It is not clear if the applicant has had the MRI. There is no report of it in evidence.

Dr Bhisham Singh – orthopaedic surgeon

Dr Singh reported to Dr Lim on 30 September 2021.
The applicant had neck and periscapular pain with radiation from disc bulging in the cervical spine, with central and foraminal stenosis from C5 to C7.
Subsequent to the injury, the applicant had neck and arm pain, which had not improved despite two years of conservative treatment, including physiotherapy and pain medication.
Dr Singh noted that MRI scan of the applicant’s cervical spine revealed that he had disc bulging at C5/6 and C6/7, with central and foraminal stenosis, resulting in his symptoms of periscapular and arm pain.
Dr Singh opined that the applicant was likely to require cervical spine decompression and fusion surgery. The aim of surgery would be to remove neurological compression and stabilise the cervical spine, thereby improving the radicular symptoms as well as the axial neck pain. He had had a long discussion with the applicant regarding the radiographic and clinical findings.
On 28 October 2021, Dr Singh reported to the applicant’s solicitors.
He had recorded a history that the applicant was asymptomatic until the injury in March 2019, when he was picking up heavy timbers onto his head and neck. Subsequent to this injury, he had neck and arm pain, which had not improved with conservative treatment.
Dr Singh diagnosed neck and periscapular pain, with radiation from disc bulging in the cervical spine, with central and foraminal stenosis from C5 to C7.
The aim of the proposed surgery was to remove neurological compression and stabilise the cervical spine, thereby improving the radicular symptoms as well as the axial neck pain.
Dr Singh reported to Dr Lim on 1 November 2021.
On examination, the applicant had limitation of range of motion of the cervical spine. He reported decreased sensation and altered sensation in the left C7 and C8 distributions. Motor examination was positive for shade weakness in the C7 distribution. The applicant did not demonstrate any upper motor neuron signs, and reflexes were normal. His upper limb reflexes were depressed.
The applicant had ongoing symptoms of neck and periscapular pain, with altered sensation in the hands. “As you know”, he had disc bulging at C5 to C7, with central and foraminal stenosis. He had ongoing pain and had failed to improve with conservative treatment.
Dr Singh reported to EML on 18 November 2021.
He opined that the applicant should have improvement of neck and periscapular pain immediately following discharge after surgery, with regular improvement over the next two to four months. Surgery would resolve the neurological compression and the motion segment pain.
Dr Singh also reported to Dr Lim on 18 November 2021.
The applicant had ongoing neck and arm pain. Dr Singh hoped he would be able to obtain approval for surgery. The applicant had significant pathology in the cervical spine.

Plus Allied Health Group Pty Ltd

Ms Nora Salem, physiotherapist, reported to Dr Mo on 14 April 2022.
The applicant had presented following left C5/6 and C6/7 cervical posterior decompression surgery and rhizolysis in March 2022. This had been performed on a background of a workplace injury in March 2019, when he felt severe left-sided neck pain with radiation to the left arm.
The applicant reported minor pain across the upper trapezius and periscapular region and some pain centrally in the cervical spine. He reported stiffness, particularly in the morning and in colder weather. He struggled with sustained positions of the head, any overhead or reaching movements, donning and doffing a shirt, and other more intensive activities of daily living, like cleaning.
The applicant reported the resolution of the burning nerve pain that extended through the left neck and arm. He denied constant, unrelenting night pain that was not associated with movement.
Ms Salem recorded cervical range of motion, thoracic rotation, forward head posture, biceps and triceps reflexes, sensation in bilateral pathways, and weakness through the upper limb myotome, pain inhibited.
The applicant’s treatment was focused on decreasing pain, normalising range of motion, and improving strength.
On 19 May 2022, Ms Salem reported that the applicant reported great resolution to minor pain across the upper trapezius and periscapular region, and some pain in the cervical spine, which he had previously complained of. He had a small amount of persisting stiffness.
The applicant reported the resolution of the burning nerve pain that extended through the left neck and arm.
on 13 July 2022 and 6 September 2022, Ms Salem provided reports that were in substantially similar terms.

Dr Zbigniew Poplawski – orthopaedic surgeon

Dr Poplawski was qualified by the applicant and reported on 28 September 2022.
Dr Poplawski recorded a history that on 21 March 2021 [sic] the applicant was involved in considerable lifting, carrying, and stacking of approximately 100 pieces of timber, each weighing about 40kg.
On the day of the injury, the applicant experienced a cracking sensation in his neck, with immediate pain in the left side of the neck and left shoulder. Subsequently, the pain radiated down the back of his left arm, with pain radiating down the posterolateral aspect of the arm, involving the little and ring fingers, where he noted paraesthesia.
Dr Poplawski recorded the applicant’s treatment, including C5/6 and C6/7 posterior cervical decompression, performed by Dr Al-Khawaja, in March 2022. Although his symptoms improved, Mr Agang remained troubled by pain in his neck, with radiation down the left arm precipitated by activities.
The pain in the applicant’s left shoulder had been treated conservatively with medication and physiotherapy once or twice a week, for both the neck and shoulder problems. He had had no investigations of the left shoulder.
The applicant complained of waking frequently with pain in his neck and left shoulder. He had difficulty with above shoulder activity and repetitive activity with his left arm, being limited in lifting, pulling, and pushing. He had difficulty removing and replacing his upper garments due to pain in his left shoulder.
On examination, Dr Poplawski found normal sensation in both upper limbs. The applicant’s left arm was generally weaker than the right. He is left-handed, with grip being particularly affected to a grade of 4/5. His range of motion in the cervical spine was generally reduced. He had some discomfort/pain at extremes of all ranges of movement.
Dr Poplawski noted mild tenderness over the front of the applicant’s left shoulder, and the tip, and over the supraclavicular fossa. There was reduced range of motion, compared to the right shoulder. The applicant had discomfort/pain at the extremes of all ranges of movement.
Dr Poplawski noted the investigations of the applicant’s cervical spine and the CT-guided injections.
Dr Poplawski diagnosed injury to the applicant’s cervical spine and left shoulder on
21 March 2019. There was work precipitated disc bulging at C5/6 and C6/7, with left sided radiculopathy; aggravation of pre-existing degenerative changes in the cervical spine; and work precipitated injury to the left shoulder, probable rotator cuff injury and/or subacromial subdeltoid bursitis with impingement.
Dr Poplawski recommended that the applicant have MRI of the left shoulder to try to establish a more definitive diagnosis. Once he had had the investigation, he should be referred to an orthopaedic surgeon.
Dr Poplawski assessed the applicant with 24% WPI, comprising 18% WPI as a result of injury to the cervical spine, and 7% WPI as a result of injury to the left shoulder.

SUBMISSIONS

The submissions have been recorded and a transcript is available, so I will refer to the submissions only briefly.

Applicant

The applicant submitted that the dispute before me is whether there was a discrete injury to the left shoulder. There is no debate that he suffered an injury to his cervical spine, and part of that presentation included issues of radiation down the left arm.

The applicant submitted that the dispute raised by the respondent referred to Dr Bentivoglio’s decision that because he did not see any pathology in his shoulder, there could not have been an injury to the shoulder, and that was as high as the respondent’s case gets.
The applicant referred to his statement evidence, the medical opinions that addressed it, and Dr Poplawski’s opinion.
The applicant submitted that, almost immediately after the injury, he made two complaints to his GP, which were recorded, and he had problems with his shoulder and his neck. Those complaints continued for about six months, there was a definite delineation noted by the GP, and the referral to a specialist made it clear there were two pathologies causing issues.
The applicant submitted that the treating doctors all accepted there was cervical disc pathology that caused radiating pain down his arm. The shoulder, which was reported at the time, faded into the background. It was not until after he had surgery, and the complaints continued, that the practitioners turned their mind to whether there was a treatable pathology in his shoulder itself. Dr Poplawski had ultimately explained the diagnosis.
The applicant referred to his description of the injury in his initial statement, describing the onset of symptoms in both his neck and left shoulder. The existence or otherwise of a shoulder condition was not something that was disputed, but he dealt with it in his statement in 2021. He had described in his second statement the difference between the pain radiating from his neck, and the pain in his shoulder.
The applicant referred to the GPs’ clinical records. He submitted that the first COC mirrored the clinical notes, that is that he had “left shoulder, neck injury”. This was repeated in subsequent COCs.
The applicant submitted that “things get side-tracked” with the referral to Dr Nair, and he was sent down the path of investigation relative to his neck complaint, despite making separate, distinct complaints relative to both the neck and shoulder at that point; and treatment was then directed at his neck.
The applicant submitted that, as a neurosurgeon, Dr Al-Khawaja was directed towards treatment of his neck, but he recorded separate and distinct complaints, made by someone whose first language is not English. The applicant ultimately underwent surgery to his neck, so treatment was directed to his neck.
The applicant anticipated that the respondent would submit that I do not have any investigation or treatment specifically directed to his shoulder. He submitted that the readily explicable reason was that liability has been declined, so it had not been funded. He was in the hands of his treating practitioners, who determined the most immediate concern was the surgery to his cervical spine. That was delayed because the insurer declined liability for the surgery.
The applicant submitted that neither A/Prof Hope nor Dr Smith made a determination relative to his shoulder, for the very good reason that the dispute they were dealing with was his neck, and the need for surgery. Dr Smith did record complaints of pain in the shoulder.
The applicant submitted that Drs Poplawski and Bentivoglio turned their minds to the issue at hand. He referred to the history recorded by Dr Poplawski, and his findings on examination. Dr Poplawski had not ignored the residual radiculopathy occasioned by the cervical spine injury, but had made allowance for it in his assessment.
The applicant submitted that Dr Bentivoglio had recorded different symptoms to those recorded by Dr Poplawski and to what was recorded in his statement evidence. He thought any symptoms experienced in the left shoulder were referred from the applicant’s neck. He did not say why. The applicant submitted that if there was some restriction of movement in the shoulder, then Dr Bentivoglio’s enunciation would fall away, and in many respects it became an issue for a Medical Assessor to determine whether there was any permanent consequence of that work injury.
The applicant submitted that no attack had been made on his evidence of the sort of work he was doing, which was described in some detail. There was a clear reference to issues associated with his shoulder in the initial clinical material.
The applicant submitted that the contemporaneous support, and the consistency in his statement evidence, would fortify an acceptance that there was a discrete injury to his shoulder, in addition to the cervical spine, and both body parts ought to be referred to a Medical Assessor.
In reply to the respondent, the applicant submitted that he was a manual labourer, came to Australia from Sudan, English is his second language, and he suffered a workplace injury. All he could do was go to his doctor, give the doctor a history, and hope the doctor did the right thing.
The doctor recorded complaints of both the neck and shoulder and sent the applicant for a CT scan. There was something in the scan that explained the issues in his neck, and the applicant submitted he was sent down a set of tracks and treatment, and the dispute and surgery followed.
The applicant submitted there was no hiding on his part. He was hostage to what the doctor decided to do. The GP had identified what was to his mind the obvious problems with his left arm and referred him to a neurosurgeon. The neurosurgeon was not going to do an orthopaedic assessment of the left shoulder. He was going to treat the spine, because that was causing the radicular pains in the left arm.

Respondent

The respondent submitted that the nub of the dispute was whether I accept that there was an injury to the left shoulder about which there is no identified pathology and investigations, although Dr Poplawski suggested, without providing any reasoned basis for it, that there might be rotator cuff tear or subacromial bursitis.
The respondent submitted there was no doubt, on the majority of the evidence, that the symptoms the applicant complained of were of a radicular nature into the left arm. If it was moving from the neck through the left arm, then that has some involvement in the left shoulder. It submitted I could not, on the evidence, distinguish that as a frank injury to the left shoulder, or due to the nature and conditions of employment.
The respondent referred to Dr Bentivoglio’s evidence. He recorded a history that the applicant had symptoms in his neck from 22 March 2019, with radiation towards his left upper limb, not a complaint of frank injury to the left shoulder.
The respondent referred to the report of A/Prof Hope, in which there was no reference to the left shoulder.
The respondent submitted that a critical piece of evidence was Dr Al-Khawaja’s reference to pins and needles, which is submitted, on the history he recorded, was equally consistent with radicular symptoms as a frank injury to the left shoulder. Dr Al-Khawaja recorded in his report dated 28 September 2019 that the power in the applicant’s left upper limb was fine, which was at odds with what Dr Poplawski said in September 2022. If there was a rotator cuff tear or damage to the left shoulder, one would have expected by September 2019 that power in the left arm would be down due to that injury.
The respondent submitted that these are subjective findings, that depend on the applicant’s presentation on the day, and the interpretation of the clinician.
The respondent submitted that the symptoms of which the applicant complained to
Dr Bentivoglio were radicular, and not specific to pathology in the left shoulder. It referred to Dr Bentivoglio’s findings on examination, submitting that the finding of no muscle wasting was very important. If, as Dr Poplawski recorded, the applicant had restrictions on the use of his left arm, one would expect muscle wasting, which Dr Bentivoglio did not find.
The respondent submitted that Dr Poplawski had not explained why it was probable that the applicant had rotator cuff tear and/or subacromial subdeltoid bursitis with impingement. Effectively, it is an ipse dixit. If it were the case, one would expect a clear and unambiguous history of significant left shoulder pain from the date of injury. The respondent submitted that, when one looks at the clinical material, it is open to a different interpretation than that submitted by the applicant.
The respondent submitted that it was important that osteoarthritis was found in the applicant’s right shoulder, as there is a possibility it was also in the left shoulder, but we simply do not know.
The respondent submitted that on 21 March 2019 the applicant requested a medical certificate to cover from 18 to 20 March 2019, but did not complain about any other problems. That was the day, as pleaded, that he suffered crackling in the neck and left shoulder, and left shoulder pain. He then did not return until 9 April 2019, when there was still no complaint about frank injury to the left shoulder.
The respondent submitted that, even if the GP’s entry of 7 May 2019 is assumed to refer to the left shoulder, which is problematical because to the previous reference to symptoms in the right shoulder, there had been no complaint of the left shoulder from 18 March 2019. There was a reference to the applicant injuring the shoulder on 28 June 2019, but no information as to when it occurred or whether it was the right or left shoulder.
The respondent submitted there was no report from Dr Gak to clarify any of this, and no report supporting an allegation of injury to the left shoulder. The applicant relied on
Dr Poplawski, who asserted that, based on the applicant’s presentation and history, there was probable rotator cuff injury or bursitis, without any pathology being identified.
The respondent submitted there was an issue of the weight to be given to the applicant’s statement evidence. He stated he had a crackling sensation in his neck and shoulder on
18 March 2019, but the history he gave to the doctors was completely different. It submitted the GP’s records do not support any injury on 21 March 2019.
The respondent submitted that Dr Poplawski was reliant on the accuracy of the applicant’s history in reaching a conclusion, and there must be significant doubt about its accuracy, certainly as far as any injury to the left shoulder was concerned. His level of complaint was entirely subjective, and inconsistent with what Drs Al-Khawaja and Bentivoglio recorded.
The respondent submitted that, although the COCs referred to the applicant’s left shoulder, there is no supporting report and no diagnosis, other than reference to left shoulder pain. There was no basis in which it was other than radicular pain from the neck.
The respondent finally submitted that I would not be satisfied that the applicant had made out the case he brought.

SUMMARY

There is no dispute that the applicant sustained injury to his cervical spine, on a date which has been pleaded as 18 March 2019, and as due to the nature and conditions of employment, but has also been described as occurring on 21 March 2019.
There is also no dispute that, as a result of the injury to his cervical spine, the applicant experienced radicular symptoms down his left arm, as far as and into the fingers of his left hand.
I do not accept the applicant’s submission that the fact that English is his second language affected the course taken by his doctors. The applicant did not require the assistance of an interpreter in these proceedings.
None of the numerous doctors who has treated or examined the applicant has referred to him having the assistance of an interpreter. None has described any difficulty in communicating with him, including those who were explaining to him the risks of proposed surgery. I do not accept that he was in some way “hostage” to what the doctors decided to do, because English is not his first language.
By way of example, the applicant was able to make it clear to Dr Zaman that he did not think she knew what she was doing; and he understood “very well” Dr Al-Khawaja’s direction that he must go to emergency for his eye condition.
The applicant referred in the claim form to pain in his neck and left shoulder/arm and in his first statement to pain in his neck and left shoulder. Given the nature of the pathology in his neck, and the symptoms associated with that injury, this is not determinative. Nor is his description of the injury in his first statement. Given the injury to his neck, the symptoms he described in his shoulder may have been referred pain from that injury.
It is also not determinative that the initial COCs referred to left shoulder/neck injury. Dr Gak recorded no history of injury to the applicant’s shoulder, and in fact on 9 April 2019 recorded that he had numbness and paraesthesia in his left arm, but no other associated symptoms. His referral for CT noted painful neck and left arm paraesthesia. There was no reference to the left shoulder.
Once the CT scan results were known to Dr Gak, from August 2019, he began to record the injury on the COCs as multi-level cervical disc bulges, or disc lesions.
Dr Gak’s referral to Dr Nair described the applicant’s injury as multiple cervical spine disc bulges, causing severe neck and shoulder pains.
The applicant submitted that the lack of investigation or treatment of his left shoulder could be explained because liability had been disputed. However, the dispute as to injury to his left shoulder arose when he made the claim for permanent impairment compensation.
There is no evidence that the applicant’s treating doctors sought approval of investigations or treatment of his left shoulder before that dispute notice was issued.
I also do not accept the submission that, because Dr Al-Khawaja is a neurosurgeon, whose treatment was directed to the applicant’s neck, that is somehow an explanation for the lack of attention directed to his left shoulder.
Dr Al-Khawaja was proposing to perform a major surgical procedure, and the surgery was subsequently carried out. I would expect him to consider whether it was reasonably necessary if the applicant’s left arm symptoms were partly due to injury to his left shoulder, given that may have affected the outcome.
What Dr Al-Khawaja recorded was that the applicant had left arm pain, which started in the neck. He reported to iCare that the symptoms were purely in Mr Agang’s arm, which was his rationale for performing less invasive surgery. The power in the applicant’s arm was “fine”.
The applicant was examined by Dr Smith, A/Prof Hope, Dr Bentivoglio, and Dr Singh, all of whom are orthopaedic surgeons, before he underwent surgery, and by Drs Bentivoglio and Poplawski after the surgery.
Dr Smith examined the applicant’s shoulders and recorded that they moved normally. He found no wasting in the left upper limb.
Dr Singh opined that the applicant’s symptoms of periscapular and arm pain were the result of disc bulging at C5/6 and C6/7. The aim of the proposed surgery was to improve his radicular symptoms and axial neck pain.
While A/Prof Hope and Dr Bentivoglio were qualified to provide an opinion as to the reasonable necessity of the surgery to the applicant’s neck, their evidence is still of assistance.
A/Prof Hope recorded that the applicant had cervical pain radiating to the left upper limb, with loss of light touch sensation in the entire limb. There was no wasting. He took into account the investigations in coming to his conclusion.
A/Prof Hope opined that surgery was reasonably necessary, and the applicant’s symptoms were directly due to permanent aggravation of the cervical spine. As an orthopaedic surgeon, he was well placed to assess orthopaedic injuries. If he believed the pain in the applicant’s left arm was in part due to an injury to his shoulder, I would expect he would have said so, as, again, that may have influenced his opinion as to the reasonable necessity of cervical surgery and its likely outcome.
Dr Bentivoglio also recorded no significant muscle wasting in the applicant’s left arm on either examination. The applicant had neck pain and pain radiating down his left upper limb and including his hand.
Dr Poplawski examined the applicant some years after the injury and after the surgery took place. His opinion that the applicant has probably sustained a rotator cuff injury and/or subdeltoid bursitis in his left shoulder is at odds with the other specialist evidence, none of which recorded objective signs of pathology in the shoulder. He has not explained the basis of the diagnoses.
There is no evidence that physiotherapy has been directed to treatment of the applicant’s left shoulder.
I do not accept the applicant’s submission that the respondent’s case is essentially that because Dr Bentivoglio did not see any pathology in his left shoulder, there could not have been an injury to the shoulder. The weight of the medical evidence is in favour of the conclusion that the symptoms in the applicant’s left shoulder are the result of the injury to his cervical spine, and not due to a discrete injury to his shoulder.
The applicant, in his second statement, sought to differentiate between the pain that radiated from his neck to that in his left shoulder. However, in my view, the medical evidence is of greater assistance than his lay opinion.
In the matter of Nguyen v Cosmopolitan Homes,[1] the Court of Appeal summarised the approach to finding the existence of a fact as follows:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.” (at [55]).
[1] [2008] NSWCA 246.
For the reasons given above, I do not feel a sense of “actual persuasion” that the applicant sustained injury to his left shoulder arising out of or in the course of his employment with the respondent.
It is unnecessary that I determine whether the applicant’s employment was a substantial contributing factor to injury to his left shoulder.
The orders are set out in the Certificate of Determination.

[2023] NSWPIC 233

23 May 2023