Alomari v All Builds Pty Ltd
[2025] NSWPIC 282
•19 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Alomari v All Builds Pty Ltd [2025] NSWPIC 282 |
| APPLICANT: | Alomari |
| RESPONDENT: | All Builds Pty Ltd |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 19 June 2025 |
CATCHWORDS: | Workers Compensation Act 1987; claim for lump sum compensation for the lumbar and cervical spine and bilateral shoulders; no dispute regarding lumbar spine and bilateral shoulder conditions; issue is whether the applicant sustained a frank injury to the cervical spine; Kennedy Cleaning Services Pty Ltd v Petkovska considered; Held – the worker suffered injury to his cervical spine; medical evidence demonstrates sudden or identifiable pathological change; lumbar spine, cervical spine and bilateral shoulder impairment to be assessed by a medical assessor. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained injury to his cervical spine on 25 March 2023. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment (WPI) as follows; Date of injury: 25 March 2023 (deemed) Method of assessment: WPI Body system/part: Lumbar spine, Cervical spine, Right upper extremity (shoulder), Left upper extremity (shoulder). 3. That the Medical Assessor be provided with the following; (a) Application to Resolve a Dispute and attachments, and (b) Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
Mr Alomari (the applicant) claims lump sum compensation arising out of and resulting from employment injury with All Builds Pty Ltd (the respondent).
The respondent’s insurer accepts he sustained an injury/consequential conditions to both shoulders and the lumbar spine however disputes “injury” to the cervical spine. This dispute has become the subject of the Application to Resolve A Dispute (ARD) filed with the Personal Injury Commission (Commission).
The matter underwent the usual case management pathway ultimately proceeding to arbitration. Mr Morgan of counsel instructed by Mr Naddaf represented the applicant. Mr Gaitanis of counsel instructed by Mr Michael represented the respondent. Mr Robinson was the insurer representative. Evidence before the Commission consisted of the documents attached to the ARD and Reply. No oral evidence was called.
ISSUE FOR DETERMATION
The sole issue for determination is whether the applicant sustained an injury to his cervical spine.
Parties agreed subject to findings, the matter was to be remitted to the President for referral to a Medical Assessor.
RELEVANT LAW
The law relevant to this application is found in the Workers Compensation Act 1987 (the 1987 Act).
Applicant’s position – evidence and submissions
The applicant in his statement dated 20 February 2025 recounts the following:
(a) he was employed as a carpenter and form worker on a full time basis averaging about 48 to 56 hours per week;
(b) the work was strenuous and heavy and was both on commercial and residential projects;
(c) he wore a tool belt which weighed about 15kg which he says caused strain to his lumbar spine;
(d) his duties required him to negotiate uneven work sites, stairs, scaffolding, ladders and carry materials that would weigh between 10 to 25kg;
(e) he first noticed pain following these activities in about late 2022 or early 2023 mainly in the lumbar spine and right shoulder which generally improved with rest. After a while pain stopped improving with rest and became constant;
(f) matters came to a head on 25 March 2023 when after undertaking hammering work he was unable to lift or move his right arm and “I had considerable pain in my lumbar spine and right shoulder which was more severe than usual”;
(g) he acknowledges he reported his back and right shoulder pain but at all times referred to the radiation of pain from the neck to the shoulder and vice versa. He reported matters to his general practitioner in October 2022 and underwent investigations of the lumbar spine and right shoulder followed by a variety of conservative treatments;
(h) due to persisting symptoms he was referred to Dr Kuah who ultimately considered that symptoms resulted from the neck rather than the right shoulder, and
(i) he did not understand that the symptoms in and around the shoulder were arising from a neck injury. He also thinks the neck pain was aggravated by overuse of the left shoulder when trying to compensate for his right shoulder restriction.
Medical evidence
Dr Kuah, sports and exercise physician reported on 27 November 2023.[1] Despite the presence of pain focus and symptom magnification with movement, his examination caused him to diagnose pathology in the neck or brachial plexus as being responsible for symptoms. He suggested physiotherapy focus on the cervical spine pending the outcome of cervical spine imaging.
[1] Folio 47 ARD.
Dr Kuah reviewed and reported on imaging findings of the cervical spine on 11 December 2023. The presence of right sided disc bulges at the C3/4 and C5/6 levels with associated neural foraminal stenosis were noted and he considered the areas of stenosis were potential sites for irritation of the right cervical nerve roots at each level. CT guided injections and physiotherapy were recommended.[2]
[2] Folio 48 ARD.
In a report dated 29 December 2023, Dr Kuah reported
“….confusingly the insurer has deemed that his right shoulder injury is covered and compensable but not his neck.
However it is apparent that the insurer fails to understand that neck pathology regularly refers to the right shoulder and in this particular case it would seem fairly obvious that the bulk of his symptoms are neck referred to the right shoulder mantle. Given the nature of this man’s work as a form work carpenter over the past ten years, it would seem reasonable that his pathology is as a consequence of his heavy nature of his work”[3].
[3] Folio 51 ARD.
Dr Dalton, rehabilitation specialist reviewed the applicant at the request of Dr Kuah and reported on 21 February 2024. Despite observing pain avoidance behaviour and some inconsistency between formal and informal observations he concluded:
“I could not elicit any pain on provocation testing of his joint capsule or rotator cuff and there was no neurological deficit or reproducible signs of cervical radiculopathy….
In summary, his current presentation is more indicative of right cervical facet joint pain with some myofascial pain but there is a lot of secondary guarding and fear avoidance in relation to his pain.”[4]
[4] Folio 57 ARD.
On 20 March 2024, on further assessment, Dr Dalton reported despite not having any information regarding previous investigations or treatment (and admitting to being at a disadvantage) he maintained the view that there were signs of cervical facet joint dysfunction with some myofascial pain with a degree of fear avoidance behaviour.[5]
[5] Folio 60 ARD.
The applicant qualified Dr Bodel, orthopaedic surgeon. In his report dated 1 May 2024 he takes a history of the development of gradual pain over time and acknowledges the applicant did not specifically contemporaneously report neck symptoms but did report right shoulder pain with radiation to the neck. A diagnosis of soft tissue injury to the cervical spine was made. As regards the neck he reported (unedited)
“…the insurer has declined to include the neck in the claim, but that is illogical, when the onset of symptoms were always in the neck and both shoulders…
I do agree that the claimant did initially present with weakness in the right arm and shoulder in particularly, but he had pain that spread from the shoulder up towards the right side of the neck and down into the right arm, into all five digits of the right hand.
I note that Dr Kuah does confirm his clinical judgement that the neck and/or brachial plexus is involved in the injury and I agree with the inclusion of the neck, but I see no signs of brachial plexus involvement.
I am satisfied that the pathology as indicated by Dr Kuah is primarily in the cervical spine and that referred pain into the shoulder is also significantly referred pain from the cervical spine, as well as the localised pathology in the rotator cuff of the right shoulder, which is also symptomatic….
I would hold the view that there is pathology of a degenerative type in the neck, the right shoulder and the lower back…. His primary injury was to the region of the right shoulder, but it did spread up into the right side of the neck, although the local doctor’s continuation notes don’t record it exactly that way.
I am satisfied that the pathology as indicated by Dr Kuah is primarily in the cervical spine and that referred pain into the shoulder is also significantly referred pain from the cervical spine, as well as the localised pathology in the rotator cuff of the right shoulder, which is also symptomatic.”[6]
[6] Folio 33 of the ARD.
Mr Fayad, treating physiotherapist reported on 6 November 2024. He states the applicant presented with pain associated with cervical rotation and extension, which he considered was due to his heavy workplace duties. He reported that the symptoms initially manifested as shoulder pathology but emphasised it was necessary to consider the
“…stacking mechanism of pain referring from the neck, in addition to shoulder pathology, i.e., I do not believe the pain is from one or the other, but a combination of the 2 pathologies.”[7]
[7] Folio 39 ARD.
Clinical notes of the NAS Advanced Medical Centre confirm the applicant was a long term patient, with notes commencing in 2019. A review of the notes confirms there were no previous complaints of neck symptoms. Complaints relating to the lumbar spine and right shoulder were first recorded in 2022 and attributed to carrying heavy items at work[8]. The notes reveal despite multiple interim consultations, the first record of neck pain was on 28 November 2023 which followed the assessment of Dr Kuah who considered “nil issues in the right shoulder but an issue with the neck”.[9] Consultations thereafter referred to treatment and investigation of the neck.
[8] Folio 92 ARD.
[9] Folio 80 ARD.
Submissions
Counsel for the applicant submitted;
(a) the applicant has been straightforward and is credible. It is admitted that there is no reference to neck symptoms at the time of presentation for right shoulder and lumbar spine pain, however this is because the applicant did not appreciate that his symptoms actually arose from a neck injury;
(b) there is a medical consensus between Dr Bodel, Dr Khua, Dr Haig and Dr Dalton that cervical disc pathology does play a role in the applicant’s presentation and the history establishes this pathology was aggravated by employment activity;
(c) little weight should be placed on the respondent’s medical evidence. Dr Haig agrees that the applicant has symptoms in the cervical spine but attributes them to degenerative change. He has failed to engage with the evidence and specifically the nature of the work undertaken by the applicant over a prolonged period, the course of the treatment and consistency of complaints;
(d) the applicant has relied on his doctors for management of his condition. It can be seen from the chronology that the applicant has undergone multiple conservative therapies targeted at the right shoulder which failed to provide symptom relief. It was only on further investigation and specialist review that it was considered symptoms likely arose from the cervical spine. This is not a new condition, nor a manufactured one but rather one that seems to have been confirmed after all other diagnoses have been excluded, and
(e) given the above, the matter should be remitted to the President for referral to a medical assessor for all injuries claimed.
Respondent’s position
The respondent accepts liability for injury to the right shoulder and lumbar spine and consequential condition of the left shoulder.
The multiple s 78 notices dispute injury to the cervical spine primarily due to the lack of contemporaneous complaint, treatment or investigation to the cervical spine.
Dr Haig was qualified on behalf of the respondent. In his report dated 5 February 2024[10] he attributed symptoms in the neck to cervical spondylosis which he considered was entirely pre-existing and unrelated to employment activity.
[10] Folio 7 of the Reply.
In his report dated 27 November 2024[11] on further review and assessment of treating medical reports including those of Dr Kuah and the general practitioner he concluded
“…there is cervical spine pathology by way of degenerative change, which I believe is the likely cause of his neck and ‘shoulder’ complaints.”[12]
[11] Folio 15 of the Reply.
[12] Folio 19 of the Reply.
In response to the assessment of Dr Bodel, Dr Haig responded
“…on page 5 of his report, in answer to question 3 causation, he states ‘The claimant’s injuries to the neck, both shoulders and the lower part of the back have occurred as a consequence of the nature and conditions of his work as a carpenter…’ I disagree with that statement. I believe his symptoms are entirely due to age related degenerative change in the cervical and lumbar spine.”[13]
Submissions
[13] Folio 21 of the Reply.
Counsel for the respondent submitted:
(a) the applicant bears the onus in establishing “injury” on the balance of probabilities and has failed to do so. This is because:
(i)there is a lack of contemporaneous complaint, treatment or investigation of the cervical spine;
(ii)specifically the applicant has failed to establish that there has been evidence of “injury”, that is a sudden or identifiable pathological change in the cervical spine;
(iii)the applicant had multiple presentations to his general practitioner which clearly refer to complaints in the back and right shoulder but are silent with respect to the neck;
(iv)none of the medical evidence establishes a clear contemporaneous causal link between the neck symptoms and any workplace activity. The absence of contemporaneous complaints or treatment then infects the qualified opinion;
(v)the respondent accepts that there are symptoms in the cervical spine but maintains they are due to matters unrelated to employment, largely pre-existing degenerative changes, and
(vi)given the above, there should be an Award for the respondent with respect to the claim of injury to the cervical spine.
APPLICATION OF THE LAW AND REASONS
The definition of injury is found in s 4 of the 1987 Act (relevantly):
“‘injury’
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’ , which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
In assessing whether injury has occurred as a result of or in the course of employment, authorities demonstrate:
(a) in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable[14] (Kennedy) pathological change[15] (Castro). The word ‘injury’ refers to both the event and the pathology arising from it[16] (Lyons);
(b) “disease”, – s 4(b) of the 1987 Act, has been described as “any abnormal physical or mental condition that is not purely transient”[17] (and it is now well established that a relevant aggravation injury (which for present purposes shall include aggravation, exacerbation or deterioration) need not have any effect on the underlying pre-existing disease itself and that it will be sufficient if the symptoms of the disease have been increased in the course of employment.
(c) the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain: (Kooragang),[18] and
(d) the applicant bears the onus of establishing injury on the balance of probabilities. A decision maker must feel an actual persuasion or comfortable satisfaction of the existence of a fact Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen)
[14] see Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 and Military Rehabilitation and Compensation Commission v May [2016] HCA 19
[15] Castro v State Transit Authority (NSW). [2000] NSWCC 12; 19 NSWCCR 496
[16] Lyons v Master Builders Association of NSW Pty Ltd. (2003) 25 NSWCCR 422, at [429]
[17] per Windeyer J Commissioner for Railways v Bain [1968] HCA 5.
[18] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR at [463].
Section 9A of the 1987 Act requires employment to also be the substantial contributing factor to the injury for compensation to be payable (other than for a disease injury where it must be shown that employment is the main contributing factor – s4(b) of the 1987 Act).
Did the applicant sustain an injury to the lumbar spine and both upper extremities (shoulders).
Injury to these areas in not in dispute. Both parties agreed the dispute in relation to the degree of impairment resulting from the incident on 25 March 2023 (deemed) relating to the lumbar spine and bilateral shoulders falls exclusively within the jurisdiction of a Medical Assessor.
Cervical spine
Assessment is complicated by the proximity of the cervical spine to the right shoulder and the fact that commonly symptoms in either joint can result in radiation of pain as identified by Dr Khua initially and subsequently Dr Dalton, Dr Bodel and Dr Haig and Mr Fayad.
It is fair to say, that the respondent relies heavily on what is not in the evidence, namely the lack of any contemporaneous complaints relating to the cervical spine for more than a year post injury. Further, the respondent maintains the opinion of Dr Haig should be preferred, specifically that any ongoing symptoms in the cervical spine are due to pre-existing degenerative changes.
I disagree with the respondent about the veracity of Dr Haig’s opinion. I found it to be lacking. He concludes the applicant’s symptoms in the cervical spine are entirely the result of constitutional changes unrelated to employment but has failed to engage with the evidence and specifically the undisputed heavy nature of the work undertaken by the applicant. I acknowledge a doctor does not need to provide elaborate or detailed explanations for his conclusion, however more than a mere “ipse dixit” (an assertion without proof) is required and the latter seems to be precisely what Dr Haig has done in this matter. Dr Haig has made this conclusion without any explanation and has ignored the clinical notes of the treating practitioner. Clearly there are degenerative changes identified on the radiological reports and Dr Haig is correct in his diagnosis. However, his failure to consider the impact of the undisputed heavy work and nature of duties on the degenerative changes makes the opinion incomplete and so I attach little probative weight to it.
I do however agree with the submissions of the respondent that there is a paucity of contemporaneous complaints relating to the cervical spine. At first blush the argument is strong but becomes weak with the introduction of each medical opinion be it treating, specialist or qualified which confirm the symptoms in the shoulder arise from the cervical spine.
The chronology is important here and this was also emphasised by the respondent. The respondent at hearing slavishly referred to the documents and the lack of any complaint or treatment. However, what is relevant when assessing the chronology is the applicant continued to complain and seek treatment for his shoulder pain. The treatments failed. Investigations of the shoulder did not clearly identify a cause for the pain. He was ultimately referred to a specialist who determined the pain, following review of an MRI investigation was likely from the cervical spine and not the shoulder, an opinion shared by all assessors in this matter.
I have given careful consideration to the applicant’s submission that the injury to the cervical spine was overlooked or underestimated by the applicant and his doctors until specialist intervention. An equally plausible explanation is that as submitted by the respondent, that is, the lack of attention to the cervical spine, is because there was in fact no injury to that region. This is particularly so given that there is no recorded history of having suffered pain at the cervical spine at the time of the injury or shortly thereafter.
The onus of establishing injury falls upon the applicant and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: (Nguyen). This does not mean that I need to be satisfied to a degree of medical or scientific certainty but on the other hand, it is not sufficient if I am merely satisfied that it is possible that the applicant’s employment caused “injury” at the relevant time.
Overall, I find that the applicant has suffered injury to the cervical spine. This is because the applicant’s complaints of pain were not confined to the shoulder joint but also referred to the right shoulder mantle which the applicant has explained in his statement to mean the shoulder joint, the scapula and neck. I accept that the applicant was unaware that symptoms resulted from a neck injury and relied on his specialists to diagnose the cause of his pain. I also accept that the injury to the cervical spine was underestimated by the applicant who was concerned about his unrelenting shoulder/arm symptoms. I find that these references in the clinical notes to the right shoulder pain more likely accord with the shoulder mantle and radiating from the neck or to the neck, a finding which is derived from the opinions of Dr Kuah, Dr Dalton, Dr Bodel and Dr Haig and is entirely consistent with the applicant’s statement. It is also neatly crystallised by Mr Fayad who stated it was the “stacking mechanism of pain referring from the neck, in addition to shoulder pathology, i.e., I do not believe the pain is from one or the other, but a combination of the 2 pathologies.”[19]
[19] Folio 39 ARD.
I agree with the applicant that symptoms in the cervical spine were not of late onset but rather represent a widespread presentation of pain of the entire neck, scapula and shoulder a finding derived from the consistent medical treatment and views of all of those who reported in this matter.
For these reasons, and with reference to the nature of the injury, chronology of events and assessment of the available medical reports, I am satisfied the applicant has established on the balance of probabilities that there has been a definite or distinct “physiological change” or “physiological disturbance” in the cervical spine arising from workplace events on
25 March 2023 meeting the definition of injury summarised in paragraph 23 above. I acknowledge that the underlying pathology is that of a disease process and in the absence of any evidence to the contrary find that the employment is the main contributing factor in the aggravation of the disease as identified in the opinions of Dr Kuah and Dr Bodel. Given this, the injury can now be referred to a Medical Assessor.
SUMMARY
For the reasons above, I make the findings and orders set out on page 1 of the Certificate of Determination.
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