Alshaari v FLH NSW Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Alshaari v FLH NSW Pty Ltd [2025] NSWPIC 262
APPLICANT:	Sami Alshaari
RESPONDENT:	FLH NSW Pty Limited
MEMBER:	Fiona Seaton
DATE OF DECISION:	12 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation; whether applicant sustained additional cervical spine and consequential gastrointestinal injuries; Held – applicant sustained cervical spine and consequential gastrointestinal injuries as a result of injury on 12 October 2019; matter remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a cervical spine injury on 12 October 2019. 2. The applicant sustained a consequential gastrointestinal condition as a result of injury on 12 October 2019. The Commission orders: 1. I remit this matter to the President for referral to a Medical Assessor in accordance with s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 12 October 2019. Body systems/parts: right upper extremity (shoulder); lumbar spine; cervical spine; right lower extremity (knee) and digestive system. Method of assessment: whole person impairment. 2. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Lodge Additional Documents lodged by the applicant dated 1 May 2025 excluding attached documents aside from Dr Khong’s reports of 18 October 2024 and 13 December 2024, and (d) list of authorities provided by the applicant. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Sami Alshaari, the applicant, was employed by the respondent FLH NSW Pty Limited as a formwork labourer from about May 2019.
On 12 October 2019 the applicant was stripping formwork and carrying a heavy long timber bearer when he felt a sharp and severe pain in his lower back. He alleges he also felt pain in his right shoulder, right elbow, right knee as well as his neck. The neck pain became worse about 6 to 12 months after the injury.
The applicant also alleges he developed a gastrointestinal condition as a result of the medication he took following the work injury.
A claim form was submitted on 17 October 2019 with the body parts affected right shoulder, lower back, right arm and hand, left and right legs, and liability for the injury was accepted.
Dispute notices were issued under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 26 October 2022 and 8 February 2023 disputing liability for the alleged cervical spine condition.
The applicant claimed lump sum compensation on 23 July 2024 for 24% whole person impairment (WPI) of the right upper extremity, lumbar spine, cervical spine, right lower extremity and digestive system.
A s 78 notice was issued on 8 November 2024 disputing the applicant’s entitlement to permanent impairment lump sum compensation.
A further dispute notice was issued on 20 December 2024 disputing liability for C5/6 anterior cervical discectomy and fusion recommended by Dr Peter Khong.
An Application to Resolve a Dispute (ARD) was lodged in the Personal Injury Commission (Commission) on 6 March 2025 claiming lump sum compensation for 24% WPI.
The dispute was listed for conciliation conference and arbitration hearing on 12 May 2025.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:

(a)    whether the applicant sustained a cervical spine injury on 12 October 2019 pursuant to ss 5 and 9A and/or s 4(b) of the Workers Compensation Act 1987;
(b)    whether the applicant sustained a consequential cervical spine injury as a result of the accepted injury on 12 October 2019, and
(c)    whether the applicant sustained a consequential gastrointestinal condition as a result of the accepted injury on 12 October 2019.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 12 May 2025 in Sydney. Mr Stephen Hickey appeared for the applicant instructed by Ms Joanne Nehme, legal representative. Mr Andrew Davis appeared for the respondent instructed by Ms Tracey Hoffman, legal representative. Ms Nabila Jouni, interpreter, was present, as was
Ms Sarhene.
The applicant’s Application to Lodge Additional Documents (ALAD) dated 1 May 2025 with only the attached reports of Dr Khong dated 18 October 2024 and 13 December 2024 was admitted.
I am satisfied 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 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)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    ALAD lodged by the applicant dated 1 May 2025 excluding attached documents aside from Dr Khong’s reports of 18 October 2024 and 13 December 2024, and
(d)    list of authorities provided by the applicant.

Oral evidence

No application was made to call oral evidence or to cross examine the applicant.

Applicant’s evidence

The applicant relies on his statement signed on 6 February 2025. He describes his employment with the respondent as a full time formwork labourer working Mondays to Fridays between 7.00am and 3.00pm and on Saturdays between 8.00am and 1.00pm.
While carrying a heavy long timber bearer (about 3.6m) by himself on 12 October 2019 he felt a sharp and severe pain in his lower back.
The applicant also felt pain in his right shoulder, right elbow, right knee and in his neck. The neck pain was not too severe at the time and only became worse about 6 to 12 months after the work injury.
Left knee and gastrointestinal injuries developed later, the gastrointestinal injury resulting from the medication the applicant had to take following the work injury.
The applicant has not returned to the workforce after 12 October 2019 as a result of his injuries and disabilities. These include neck and consequential gastrointestinal injuries and resulting disabilities the subject of these proceedings.
Dr Abdullah, general practitioner, initially treated the applicant. The applicant then consulted Workers Doctors in October 2019 as he understood from a friend they dealt with workers compensation claims. The applicant had mild pain in his neck however he was mainly concerned with his lower back, right shoulder, right elbow and right knee at that time.
The applicant does not have a good understanding of the English language and requires an interpreter to assist him. When he first saw Workers Doctors he pointed out that he had suffered an injury to his neck following the work injury on 12 October 2019 but he believes there was some miscommunication as the words for ‘neck’ and ‘knee’ in Arabic sound very similar. This is the only explanation he can think of as he has always had pain in his neck from the date of the work injury.
The mild pain in his neck became worse over time to the point the pain became as bad as his lower back pain. The neck pain started to radiate into his arms and became unbearable.
In about June 2020 Dr Morgan Mo advised the applicant to continue physiotherapy and if the neck pain became worse he would refer the applicant for an MRI scan.
Dr Khong, neurosurgeon, treated the applicant from about February 2020 regarding his lower back pain and pain in both knees. Dr Khong recommended non-operative treatment.
On 5 September 2022 the applicant had a flare up of chronic pain in his neck and right shoulder and was taken by ambulance to Westmead Hospital Emergency Department. He was prescribed Endone for pain relief and referred back to his general practitioner. He saw Dr Mo on the same day who arranged for some scans to be done.
In about late 2022 or early 2023 the applicant complained to Dr Khong of pain on the right side of his neck. The applicant had an MRI of his neck in about October 2023.
On about 5 August 2024 the applicant experienced severe neck pain radiating to the back of his head and right shoulder. It was unbearable and he attended the Emergency Department at Westmead Hospital where he was prescribed medication and advised to follow up with his general practitioner.
In about October 2024 Dr Khong recommended an injection in the applicant’s neck which he had in November 2024. This provided some benefit but he continued to experience pain.
Dr Khong recommended a further MRI which was carried out in late December 2024.
Regarding the medical records of Excelsior Family Medical Centre dated 25 March 2024, the applicant says he consulted Dr Abdullah and asked about his neck pain not having been recorded by him on 14 October 2019.
Dr Abdullah documented this consultation and noted he refused the request to record a complaint of neck pain saying he could not record incorrect information.
The applicant says he did not intend to have Dr Abdullah provide or alter documents to include his neck injury as part of his work injury. He went to Dr Abdullah to clarify if he had mentioned his neck pain and what the process would be to have his neck pain form part of the claim.
When he consulted Dr Abdullah the applicant spoke with him in Arabic. Although their dialects slightly differ, for the most part they could understand each other.
He considers that perhaps they misunderstood each other due to the Arabic dialect which most likely caused some confusion. His intention was to clarify what the process was because he has always had pain in his neck following the work injury.
The applicant has taken various medications to help manage his ongoing pain as a result of the injury on 12 October 2019, and this has caused him to experience gastrointestinal injuries for which he has sought medical attention.
Due to symptoms including hiccups, burping, vomiting, bloating, constipation, straining and pain, a sore and tender abdomen, a constantly rumbling stomach and gas the applicant was referred to Dr Guang Chen, gastroenterologist.
Following an endoscopy and colonoscopy Dr Chen told the applicant on 9 September 2023 he had gastritis and a gastric ulcer. A gastroscopy performed by Dr Chen on 12 February 2024 showed the applicant has a hiatus hernia and stomach ulcers.
Medications the applicant takes include Gabapentin, Effexor, Somac, Agomelatine, Mirtazapine and Bentopozol.
The applicant’s claim form dated 17 October 2019 notes he requires an Arabic interpreter and the description of tasks he was doing when he was injured are “1) carrying heavy timber bars (bearer) 4.80 metrs long. 2) Removing timber concrete form lining with bench bar.”[1]
[1] ARD page 13.
The parts of the body affected are listed as right shoulder, lower back, right arm and hand, left and right legs.

Dr James Bodel, orthopaedic surgeon

Dr Bodel provides reports to the applicant’s solicitors dated 12 August 2022,
1 September 2023 and 29 January 2024.
On 12 August 2022 Dr Bodel notes on examination the applicant’s neck is stiff and he does have a complaint of tenderness in the neck on both sides but no guarding or spasm. He has a slight restriction of neck flexion, extension and rotation in all directions and there is no asymmetry of neck movement.
Regarding the history obtained Dr Bodel says the applicant developed pain in the back, the hips and the right knee, the neck and the right shoulder as a result of the nature and conditions of his work, at work, on 12 October 2019.
The injuries include a soft tissue injury to the neck, with no rateable pathology other than in the lumbar spine, right upper extremity and right lower extremity.
On 1 September 2023 Dr Bodel includes in the summary of injuries injury to the neck, with pain developing in his neck while undertaking the work activity on 12 October 2019.
Dr Bodel notes by way of background the mechanism of injury was not just from carrying the heavy bearer which was 4.8m long, but also from the removal of that from the side of the concrete pour.
On examination the applicant does complain of tenderness in the trapezius muscle at the base of the neck. That day there was some guarding on the right side, he had a reduced range of neck flexion, extension and rotation in all directions but there is now asymmetry and dysmetria on rotation to the left and an extension.
Dr Bodel disagrees with Dr Bentivoglio’s opinion that no injury to the cervical spine has arisen as a consequence of the work injury.
Dr Bodel believes the applicant had the injury to the neck at the time of the incident but his right shoulder, lower back, knee and leg complaint were more severe and they were concentrated on at the time.
Dr Bodel notes Dr Khong confirms the applicant did have neck pain which radiates into the right shoulder with no numbness or weakness in his arm. Although Dr Bodel finds no signs of radiculopathy in the right upper limb he did find asymmetry of movement in the neck associated with the right sided C5/6 disc bulge reported in the MRI scan.
In the doctor’s opinion it is probably a frank injury but at the very least it is a consequential injury by way of aggravation, acceleration, exacerbation and deterioration at the C5/6 disc injury associated with the pain and stiffness and referred pain in the right arm and shoulder.
Dr Bodel notes the MRI scan of the cervical spine and right shoulder of 23 September 2022 confirms a large, right, paracentral disc extrusion compressing the spinal cord with moderate spinal canal stenosis at C5/6.
Dr Bodel assesses DRE Cervical Category II level of assessable impairment with clinical evidence of asymmetry and guarding with a base rating of 5% WPI. The total WPI is assessed as 20% for the lumbar spine, right upper extremity, cervical spine and right lower extremity.
On 29 January 2024 Dr Bodel provides a further assessment with the cervical spine remaining as 5% and a total of 21% WPI.

Dr Anthony Greenberg, general and gastrointestinal surgeon

Dr Greenberg provides a report on 22 January 2024.
Dr Greenberg’s opinion is that the applicant’s current prescribed medication is associated with adverse gastrointestinal events, he has been prescribed medication consequential to his work-related injury when employed by the respondent, and the medication regime is a contributing factor to his current gastrointestinal symptoms.
The applicant has symptoms consistent with gastro-oesophageal reflux disease (GORD) and a medication induced gastrointestinal motility disorder, as well as Helicobacter Pylori infection (HPI).
In his supplementary report of 10 July 2024 Dr Greenberg notes HPI has been successfully eradicated.
Dr Greenberg assesses 4% WPI of the combined upper and lower gastrointestinal tract conditions.

Investigations and treatment

The MRI of the cervical spine report of 23 September 2022 concludes at C5/6 there is a large right paracentral disc extrusion compressing the spinal cord with moderate spinal canal stenosis, no compressive myelopathy, right preforaminal/foraminal narrowing at this level potentially impinges the right C6 nerve root, and elsewhere no spinal canal stenosis or nerve root impingement is suggested.
The Discharge Summary of Westmead Hospital of 5 August 2024 records the applicant presented to the Emergency Department with acute on chronic neck pain in the context of C5/6 extrusion with annular fissure caused by work injury five years ago. He was examined, provided with Endone and discharged that day.
A CT guided right C6 perineural injection was performed on 27 November 2024.
The report of the MRI of the cervical spine of 23 December 2024 includes multilevel cervical spondoylitic changes and most notably at C5/6, and a posterior uncovertebral disc osteophyte complex flattening the anterior surface of the cervical cord. Conceivably, on weightbearing, the posterior annular fissure at this level may be resulting in early irritation of the exiting right C6 nerve root. Clinical correlation is suggested.

Workers Doctors clinical records

The applicant first attended at Workers Doctors on 17 October 2019. Dr Calvache-Rubio reports the applicant presented with symptoms including headaches, right shoulder pain, right elbow pain, numbness in the right forearm and right hand, lower back pain and stiffness radiating to the bilateral hips and legs, and pins and needles in bilateral feet.
Regular treatment was provided at Workers Doctors by general practitioners, physiotherapists, a psychologist, Dr Kumagaya, psychiatrist, Dr Khong, neurosurgeon, and Dr Gavin Soo, orthopaedic surgeon. Medications are prescribed.
On 26 June 2020 Dr Mo first records “Cervical neck radiating to R > L shoulder” and “Pain same severity in lower back and cervical neck”.[2] Dr Mo’s plan included “Consider C spine MRI if pain persists/worsens.”[3]
[2] ARD p 231.
[3] ARD p 232.
Other records with respect to the applicant’s neck condition include:
(a)    on 2 December 2021 Dr Mo records neck pain;
(b)    on 16 March 2022 limited change in neck and lower back pain;
(c)    on 12 April 2022 ongoing neck and lower back pain;
(d)    on 8 June 2022 ongoing neck, back and knee pain, and
(e)    on 5 September 2022 a recent flare up of neck and right shoulder pain and attendance at Westmead Hospital.
On 27 September 2022 Dr Mo records “[r]eports persistent neck and right shoulder pain since initial injury in 2019” which has worsened in the past month with unclear trigger.
Dr Khong examines the applicant for his neck pain on 18 November 2022 and notes it is from the 2019 injury, gradually worsening, mild at time of injury and one year ago it started getting worse.
On 10 February 2023 the psychologist notes the applicant is anxious about his claim, the insurer is declining the neck due to the interpreter saying knee instead of neck, he says told them about the neck injury and he was not aware of this confusion.
On 26 August 2022 a psychologist notes the applicant reports “[t]he medication the pain in my stomach is killing me”.[4]
[4] ARD page 141.

Dr Gavin Soo, orthopaedic surgeon, clinical records

The applicant was referred to Dr Soo on 9 October 2020 for treatment of his right knee pain which is not the subject of these proceedings.

Dr Peter Khong, neurosurgeon and spine surgeon, clinical records

The applicant was referred to Dr Khong on 12 December 2019 for opinion on his deteriorating lower back pain with radicular symptoms.
Dr Khong organised a bone scan and some dynamic X-rays. Dr Khong reports on
17 April 2020 that the MRI lumbar spine of 13 November 2019 does not demonstrate any significant degeneration or neural compression and there is no dynamic instability on X-rays.
Dr Khong reports on 19 June 2020 the applicant’s bone scan does not demonstrate any increased uptake and his pain may largely be musculoligamentous strain. The doctor recommended non-operative management and did not arrange to see the applicant again.
When Dr Khong reviewed the applicant on 18 November 2022, over two years after his last review, the applicant stated he had right sided neck and shoulder pain since his injury in 2019. This had been gradually worsening. His neck pain was initially mild at the time of his injury and started to get worse in 2021.
On 18 October 2024 Dr Khong records persistent posterior midline neck pain radiates up to the head and to the right side of the neck and trapezius. In his report of that date Dr Khong includes the history of the presenting complaints, his examinations of the applicant and the investigations.
Dr Khong notes the applicant continues to complain of neck pain with radiation down the right arm as well as lower back pain. The MRI of the cervical spine again demonstrates a right sided C5/6 disc herniation which has reduced in size but the disc pain may still be contributing to his pain. A right C6 perineural injection was arranged for diagnostic purposes and if that helps with his pain he would benefit from a C5/6 anterior cervical discectomy and fusion.

On 13 December 2024 in videoconference with an Arabic interpreter Dr Khong records pain in back, neck and shoulder, the right C6 perineural injection on 27 November 2024 did not help the pain at all and the applicant feels it made his pain worse.
In Dr Khong’s request for surgery dated 13 December 2024 he says the applicant presented with neck pain and right arm pain after a workplace injury.
On 13 December 2024 Dr Khong notes the applicant complained of back, neck and shoulder pain and the right C6 perineural injection on 27 November 2024 did not help and made his pain worse. He complained of right sided neck pain radiating down the anterior right arm stopping at the elbow and stated he could not live with his pain because it was severe.
The doctor notes while the large right sided C5/6 disc herniation with cord compression and foraminal stenosis has reduced in size, there is still a disc herniation in this region and his pain may still be coming from the disc injury at C5/6.
C5/6 anterior cervical discectomy and fusion is reasonable in Dr Khong’s opinion as he has had pain for over five years now and all non-operative management options had failed to date.
Dr Khong reports on 21 February 2025 the applicant continues to complain of neck pain, his new MRI again demonstrates a C5/6 disc herniation with cord compression and right sided foraminal stenosis, the request for a C5/6 anterior cervical discectomy and fusion was declined and is awaiting appeal.

Dr Guang Chen, gastroenterologist, clinical records

The applicant first consulted Dr Chen on 10 June 2023. Dr Chen records the applicant’s symptoms, and notes they are likely to have multifactorial causes including medications, weight gain and increased tobacco use. Dr Chen arranged for the applicant to have an endoscopy.
Dr Chen saw the applicant on 26 August 2023 and on 9 September 2023 he records the applicant has HPI (likely chronic infection) complicated by gastric ulcer and functional constipation (likely exacerbated by his medications).
A gastroscopy on 12 February 2024 revealed a small hiatus hernia and ulcers.
Dr Chen saw the applicant again on 16 March 2024 following the endoscopy and biopsies. The applicant has gastritis complicated by ulceration. Dr Chen suggested a two-week course to treat HPI followed by Urea breath test and reducing or ceasing tobacco.
A breath test on 12 April 2024 showed HPI was absent.

Other medical evidence

Various Allied Health Recovery Requests are with the ARD, as are Certificates of Capacity.
Certificates of Capacity from 17 October 2019 are issued mainly with the diagnoses of right shoulder strain, right elbow strain, lumbar spine radiculopathy, L4/5 bulging disc, bilateral knee strain and adjustment disorder, and later major depressive disorder.
The Certificates of Capacity after 27 September 2022 include C5/6 disc extrusion with annular fissure. Later certificates add “(fall after knee/back locked)”, with the factors affecting recovery of worsening neck and back pain.

Applicant’s List of Authorities

Applicant’s counsel provided the following list of authorities;
·        Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (24 August 2015) at [57] and [58];
·        Carr v State of New South Wales (Mid North Coast Local Health District) [2021] NSWPIC 195 (21 June 2021);
·        Ozcan v Macarthur Disability Services Limited [2020] NSWWCCPD 21 (21 April 2020);
·        State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003, and
·        Michelle Gai Weston t/as Northmead Beauty Therapy v Szenczy [2019] NSWWCCPD 38 (22 July 2019) At [140] to [176].

Respondent’s evidence

Dr Yuk Kai Lee, orthopaedic surgeon

The respondent relies on the report of Dr Yuk Kai Lee dated 17 September 2020.
Dr Lee takes a history of the applicant injuring his right shoulder, leg (knee) and back on
[5] Reply page 21.
12 October 2019. His main problem is in the back. Dr Lee records the applicant “also notices neck pain radiating down through the shoulder, elbow and then to the hand on the right side.”[5]
On examination of the cervical spine Dr Lee notes some tenderness on the right side near the suprascapular musculature and measured movement of his neck. Pain was reproduced when rotating to the right.
Dr Lee diagnoses injury to the L5 spine at L4/5 disc, injury to the right shoulder and injury to the right knee.

Dr Tony Antoun, injury management consultant

Dr Antoun saw the applicant on 29 June 2020 and reports the applicant stated “there is no pain in the neck and demonstrated moving his neck from side to side in full range manner.”[6]
[6] Reply page 27.
The doctor noted an abnormal response on examination exaggerated with verbal sound on extremely light palpation of the cervical spine. Spurling’s test was negative and there were no signs of cervical radiculopathy.
Dr Antoun concludes there are no clinical findings to support any ongoing pathology from the described very minor event, and he suspects the applicant had a minor back strain which should have resolved within two weeks of simple treatment.

Dr Danny Tang, general practitioner, injury management consultant

The applicant was referred to Dr Tang on 23 November 2020 to conduct an independent objective assessment of the applicant.
The history of the injury provided by the applicant was that on 12 October 2019 he felt severe pain in his lower back and injured his right shoulder at the same time and he may require management of his right knee.

Dr Peter Bentivoglio, neurosurgeon

The history taken by Dr Bentivoglio in his report of 21 December 2022 is of development of low back pain due to heavy lifting, with pain going into both legs down to his calves. The applicant also injured his right shoulder, right knee and right elbow and had a minimal injury to his neck. Physiotherapy for his neck started 12 months after the injury.
The applicant maintains he had right-sided neck pain since the injury in 2019 which has slowly but surely got worse.
The neck pain was very mild at the time and since the injury has become worse, in particular 12 months ago which is some two years after the actual injury. The neck pain radiates into his right shoulder.
The MRI scan of his cervical spine on 23 September 2022 revealed a right-sided C5/6 disc bulge with compression of the cord and some right foraminal stenosis. The applicant had only had one appointment with Dr Khong for his cervical spine at that time.
Dr Bentivoglio does not believe the cervical spine injury is related to the work injury on
12 October 2019. It came on significantly after the work injury and perhaps it was secondary to the fall the applicant had six months ago getting into a swimming pool when he landed on his back. This may have been a contributing factor to both his back and neck problems and it may have been the significant exacerbating factor to his neck.
The injury to the applicant’s cervical spine is probably a fairly acute disc bulge in
Dr Bentivoglio’s opinion, more related to an injury six months ago than one three years before.

Dr Anil Nair, orthopaedic surgeon

Dr Nair reports on 13 October 2023 that the injury on 12 October 2019 resulted in low back pain and injuries to his right shoulder, right knee and right elbow. The applicant’s current symptoms include pain in multiple regions of his body and the whole of his spine.
Dr Nair finds impairment only in the right shoulder. The cervical spine condition was previously deemed not to be a work-related injury.
On 26 June 2024 Dr Nair provides a supplementary report regarding mainly the left knee which is not the subject of these proceedings.
Dr Nair’s supplementary report of 23 July 2024 confirms his opinion that there is no evidence of a work related left knee injury and any surgical intervention is highly unpredictable.

Dr Phil Truskett, surgeon

Dr Truskett provides a report dated 13 September 2024 with respect to the applicant’s upper digestive tract and lower digestive tract.
The applicant described symptoms commencing in around February 2023 including acid reflux, bloating and constipation. Dr Truskett records the history of treatment provided by
Dr Chen.
Dr Truskett diagnoses symptoms of gastroesophageal reflux secondary to a hiatus hernia and minimal constipation which may be in part due to the ingestion of codeine. The applicant had previous Helicobacter gastritis which appears to have been eradicated.
In Dr Truskett’s opinion the applicant has sustained no injury or disease of his upper digestive tract or lower digestive tract from his work-related injury.
Dr Truskett does not agree with Dr Greenberg’s assessment. Dr Trusketts’s opinion is the applicant has no sign reflective of upper digestive tract disease as his symptoms are solely related to gastroesophageal reflux due to his hiatus hernia.
The assessment made by Dr Greenberg of the lower digestive tract is due to constipation, however Dr Greenberg did not refer to the WorkCover Guides which state that constipation due to analgesics rates as 0% WPI.
Dr Truskett assesses 0% WPI.

Other medical evidence

Dr Calvache-Rubio in his capacity as nominated treating doctor reports on 17 October 2019 that the applicant initially presented on that day for an injury to his back, shoulder and elbow. Symptoms included those referred to at paragraph 65 above. The report of 12 December 2019 is in similar terms.
Dr Khong’s report of 17 April 2020 is also relied upon by the respondent, referred to at paragraph 75 above. Dr Khong’s report of 18 November 2022 includes that the applicant has had right sided neck and shoulder pain since his injury in 2019 which was initially mild and has been gradually worsening, referred to at paragraph 77 above.
The Functional Assessment report of Mr Cheuk Him Ho dated 28 May 2021 includes that the applicant demonstrated within normal limits in his neck, shoulder, elbow, hand and hip. On assessment his cervical spine was within normal range of movement.
Extracts of clinical records of the Excelsior Family Medical Centre include Dr Abdullah’s record made on 14 October 2019 of lumbar back pain after lifting heavy weight at work, the diagnosis of lumbar back pain and referral for a CT scan of the lumbar spine.
The applicant saw Dr Abdullah again on 16 October 2019 regarding his lower back pain.
On 25 March 2024 Dr Abdullah records;
“presented today as a walk in patient, asking me to give a medical certificate that he had neck pain back when he saw me on 14/10/2019
the visit note from that date noted, no mention of neck pain
patient is asking me to write a certificate stating that he told me "verbally" that his neck was hurting to help him with his claim, stating that "the claim is all depending on a certificate from me mentioning his neck pain", requesting me to "help" him, stating "it is okay, Dr you can do it to help me, that wouldn't cost you anything"
long chat with patient, advised that isn't legal, that I can not falsely state something that did not happen, if he complained of neck pain at that time he should have informed me so that proper investigations would have carried out
gently declined his request and advised him to be truthful for a better outcome of his claim and health
he denies any acute medical issues that needs my attention today.”

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The applicant referred to his statement with respect to his neck as including that he felt pain in his neck from the date of the injury, it was not too severe at the time and only became worse 6 to 12 months after the work injury.
Dr Lee in his report prepared for the respondent on 17 September 2020 notes neck pain radiating down through the shoulder, the elbow and the right hand. The applicant uses Voltaren Gel and Gabapentin. There is early evidence of complaint of neck pain to the respondent.
The Allied Health Recovery request made by Ms Shuyang He on 26 May 2022 has a diagnosis of lumbar radiculopathy, cervical radiculopathy – radiation down to the right shoulder. The current signs and symptoms are noted as pain location: back – main c and “Neck – main c.” (c. could be current), then under that right shoulder, right knee and neurological P&N (which may be pins and needles) at times, more often at night, and numbness in the right hand at night.
The neck is noted as a main current sign and symptom at that time which the applicant submits illustrates the neck is a significant problem at that stage.
On 15 September 2022 Ms He again notes as the main current signs and symptoms back and neck pain. She notes the applicant was brought in by ambulance to hospital last week due to excruciating pain extending from neck to right shoulder, he denies any trauma overload/overuse, had strong pain after waking up, feels like the body is paralysed, talked to his nominated treating doctor and is referred for imaging.
An early reference to the applicant’s neck pain the clinical records of Workers Doctors appears on 17 July 2020, about nine to ten months after the event complained of. Symptoms recorded include “Cervical neck radiating to R > shoulder” and “Pain same severity in lower back and cervical neck”.[7]
[7] ARD page 229.
Dr Mo records on 7 August 2020 the same injury site but symptoms of cervical pain radiating to right and left shoulder and pain is of the same severity in the lower back and cervical neck. There is an ongoing record of that complaint of neck symptoms through the notes, including on 28 August 2020, 18 September 2020, 23 October 2020, 5 and 19 November 2020,
3 December 2020 and continuing to 7 September 2021 when Valdoxan and Venlafaxine were prescribed.
A summary of the medication prescribed between October 2019 and 14 January 2021 shows Voltaren Osteo Gel, Gabapentin and Mirtazapine. On 5 October 2021 a breakdown of prescriptions shows Gabapentin, Valdoxan, Venlafaxine and Voltaren Osteo Gel.
Dr Mo recorded on 16 March 2022 “Limited change in neck and lower back pain” and Valdoxan was ceased due to agitation and nightmares three to four times per week. Ongoing neck and lower back pain is recorded again on 12 April 2022.
The applicant takes issue in his statement with what Dr Bentivoglio recorded as a history in his report of 21 December 2022.
Dr Bentivoglio records the applicant had a fall whilst trying to get into a swimming pool some six months ago, which would be around June or July 2022, when he landed on his back and which may be a contributing factor to both his back problem and his neck problem and may have been the significant contributing exacerbating factor to his neck.
In the preceding paragraph Dr Bentivoglio provides his opinion that the applicant’s cervical spine injury is not a consequence of the original injury on 12 October 2019 and he has clearly stated why.
Dr Bentivoglio reports the applicant had mild neck symptoms after the accident on
[8] Reply page 41.
12 October 2019, he said he became more symptomatic 12 months ago and he only had investigations, an MRI scan on 23 September 2022, some three years after the injury. This showed a right-sided disc bulge with some compression of the cord and some foraminal stenosis; “I do not believe the neck problem is as a result of the dated injury on 12 October 2019.”[8]
Dr Bentivoglio goes on to say “The simple truth is, he said he had some mild neck pain after the work injury, which has slowly but surely become worse according to him.”[9] He had no form of investigation for two years to almost three years and he had other trauma in between time when he fell over trying to get into a swimming pool. The injury to his cervical spine is probably a fairly acute disc bulge more related to an injury six months ago than one three years before.
[9] Reply page 41.
This opinion should be analysed in the context of the Allied Health entry of May 2022 that refers to the back pain and neck pain as current symptoms, predating the mid-2022 event referred to by Dr Bentivoglio.
The applicant’s submission is that it if you accept the history in his statement is forthright, it is complemented by the clinical notes of Dr Mo and others at Workers Doctors who record neck pain from mid-2020.
The applicant says the worst pain from the event on 12 October 2019 was in his lower back and the focus of treatment was in that area and his shoulder.
The applicant submits that it would be accepted he did sustain some injury to his neck.
The MRI scan in September 2022 revealed shallow posterocentral disc protrusions at C2/3 and C3/4 and a significant right paracentral C5/6 disc extrusion with annular fissure that extends toward the right exit foramen, and which impacted the spinal cord.
The applicant’s submission is that it should be accepted he had cervical symptoms because of the history including the Allied Health document from the physiotherapist in May 2022.
The applicant says that in about June 2022 he was about to have a shower when he fell, in a combined shower and bath, and his back and right knee felt stiff and locked up which caused him to fall on to his right shoulder and head.
The applicant says in response to Dr Bentivoglio’s report that he did not fall at a swimming pool and he did not land on his back. He can only guess that when he was explaining his fall the interpreter misunderstood him and interpreted that he fell at a swimming pool, but that was not the case.
Dr Bodel provides the independent medical examiner support for the applicant’s claim of the cervical spine injury.
Dr Bodel refers to the MRI scan report of 2022 and lists as a current complaint that the applicant has neck pain. Dr Bodel refers to the pathology associated with the injury on
12 October 2019 as including a neck injury, right shoulder and arm injury, lower back and referred pain into both legs and both knees.
In Dr Bodel’s view the neck injury is a disease process of gradual onset and at the very least there has been an aggravation, acceleration, exacerbation and deterioration to that disease process caused by the injury on 12 October 2019.
The applicant’s submission is that although the applicant worked as a form worker for about five years before the injury there are no investigations before the date of injury.
The applicant complained of pain in his lumbar spine, and although there is not a great deal of pathology on the lumbar spine scans nevertheless this is his focus of pain.
He also complained of right shoulder problems of some significance. There was not a lot shown in terms of rotator cuff damage as opposed to the fracture which is disclosed on the later scanning.
Dr Bodel examined the applicant on 23 March 2022, predating any event in July or September that year. It cannot be said then that the applicant did not disclose what happened to Dr Bodel.
Dr Bodel notes on examination the applicant was uncomfortable sitting on a chair and rises slowly. His neck is stiff, as is his back, and he complains of tenderness in the neck on both sides but no guarding or spasm. There is slight restriction of neck flexion, extension and rotation in all directions.
The applicant developed pain in the back, the hips and the right knee, the neck and right shoulder as a result of the nature and conditions of his work at work on 12 October 2019 in Dr Bodel’s opinion. Dr Bodel diagnosed a soft tissue injury to the neck and rotator cuff injury to the shoulder and other injuries which are not in issue at the moment.
Dr Bodel assesses WPI of the neck which he combines with the applicant’s other injuries.
Dr Greenberg has provided reports on 22 January 2024 and 10 July 2024.
In his first report Dr Greenberg supports that the medication used for chronic pain control are recognised to have significant side effects and can result in gastrointestinal symptoms that can be similar to HPI.
The doctor concluded the applicant’s current medication regime is a result of his work related injuries and he is unable to stop his medication as he cannot get adequate pain relief from Panadol alone. It is unlikely his symptoms will resolve.

The medication regime, which the applicant needs to continue, can cause significant adverse gastrointestinal events.
Dr Greenberg interviewed the applicant and was of the opinion that the combination of his orthopaedic injuries and the adverse gastrointestinal symptoms were affecting his psyche and having a significant impact. This seems to have set up a cycle with interrelated symptoms and breaking the cycle can be difficult.
To diagnose HPI the preferred way is gastroscopy and biopsy, and breath testing is widely used and accepted to assess HPI eradication after treatment. Dr Greenberg thought it important for the applicant to have those tests.
Dr Chen treated the applicant and HPI has been eradicated.
Dr Greenberg then provides an assessment of 4% WPI as the applicant’s symptoms are consistent with intestinal motility disorders. The motility, chronic pain and stress are all associated with a chronic bowel dysfunction and consistent with symptoms described by the applicant.
The applicant submits that Dr Greenberg is persuasive on the gastrointestinal aspect of the applicant’s claim, which is a consequential injury.
Dr Truskett seems to preface his opinion in relation to the lower digestive tract as against
Dr Greenberg on the basis that constipation is a symptom not a sign and is generally reversible.
Without analgesia Dr Truskett’s view is the issue would resolve, however Dr Greenberg has provided his opinion about why that will not occur. Dr Truskett does note the applicant appeared to be consistent.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The applicant has pleaded his injury and described it as a frank injury to the neck under s 4(a) of the 1987 Act and that is the case to which the applicant must be held to in the respondent’s submission, and that is the case the respondent must meet.
In the applicant’s claim form of 17 October 2019 the applicant felt pain in the middle of his lower back as he pulled the iron pinch bar to separate it from concrete already laid, and the injury/condition is to the right shoulder, lower back, right arm and hand, left and right legs. The neck is not mentioned.
The claim form includes that the applicant first noticed the injury/condition on 3 September 2019, he stopped work on 12 October 2019 and reports the injury on 16 September 2019.
This is a contemporaneous report and there is no complaint of the neck.
The applicant then attended on his general practitioner Dr Abdullah on 14 October 2019 who records “lumbar back pain afyer lifting heavy weight at work, works at farm, nil cauda equina features which is also explained to pt as red flags, nil LL neurological feficit.”[10] The diagnosis is lumbar back pain.
[10] Reply page 99.
On 25 March 2024 Dr Abdullah records the applicant asking him to give him a medical certificate that he had neck pain as well as back pain when he saw him on 14 October 2019.
Dr Abdullah records the applicant is asking him to;
“write a certificate stating that he told me ‘verbally’ that his neck was hurting to help him with his claim, stating that ‘the claim is all depending on a certificate from mentioning his neck pain’, requesting me to “help” him, stating ‘it is okay, Dr you can do it to help me, that wouldn’t cost you anything’.”[11]
[11] Reply page 101.
The respondent submits that as these are quotations these have been recorded carefully by the general practitioner.
Dr Abdullah records that he had a long chat with the applicant and advised;
“that is not legal, that I can not falsely state something that did not happen, if he complained of neck pain at that time he should have informed me so that proper investigations would have carried out, gently declined his request and advised him to be truthful for a better outcome of his claim and health.”
The respondent submits there is no record of a misunderstanding, there is no record of a language barrier and that would be a sufficient basis for finding there is no neck injury.
The applicant has an initial consultation with Dr Calvache-Rubio at Workers Doctors on
17 October 2019 for an injury to his back, shoulder and elbow.
There is a detailed examination of the applicant and symptomatology of headaches, right shoulder pain, right elbow pain, numbness in right forearm and right hand, right hand weakness, lower back pain and stiffness radiating to bilateral hips and legs, pins and needles in bilateral feet, trouble sleeping, depressed, worried, hopelessness, stressed, but there is no mention of the neck.
Dr Calvache-Rubio diagnoses right shoulder strain, right elbow strain, lumbar spine radiculopathy (ODI: 82%), L4/5 bulging disc (CT). There is no mention of the neck.
The record made by physiotherapist Ryan Heuston on 17 October 2019 is of the date of injury 3 September 2019, right shoulder and lower back, pain in the shoulder, lower back pain with bilateral buttock pain, posterior leg pain, right knee pain, tingling on both legs, whole leg with sitting and a history of tolerances.
A detailed examination is carried out and again there is no history taken of a neck injury.
On 28 November 2019 Dr Joshua Lee carries out a review with an interpreter and again there is no mention of the neck or of any complaint about the neck.
On 9 January 2020 the applicant sees Dr Lim, a physiotherapist and a psychologist and what is missing is any neck complaint.
This is not a one off lapse or misunderstanding. There is a consistent failure to mention any form of neck symptomatology or frank neck injury.
The first entry regarding the neck is made on 26 June 2020. That is where the cut and paste begins for a symptom of cervical neck radiating to right and left shoulder, notwithstanding multiple attendances prior to that date.
The first radiology report is 23 September 2022 which post-dates a fall and necessitated attendance at the hospital for injury.
The absence of contemporaneous records is not explained away in the respondent’s submission as the applicant seeks to do in his statement. The records clearly show multiple attendances with doctors, including with interpreters, that do not elicit any complaint about neck problems, which the applicant in his statement would have you accept were present from the beginning.
It is also telling that the applicant then contacts his general practitioner when we get to the pointy end of the litigation asking him to change his records and help him out.
After the fall and the ambulance trip to hospital in 2022 it is apparent there is a significant increase in problems.
The respondent submits it should be accepted there was a separate, distinct and significant injury which occurred in the incident that led to hospitalisation transported by ambulance, and that is the cause of the current problem.
The respondent submits the applicant’s case is entirely reliant on the applicant’s evidence and the histories and the timing of histories.
There are some complaints of neck pain prior to the fall but that is not contemporaneous with the injury and the allegation of the frank injury from day one.
It would be a remarkable coincidence in the respondent’s submission for every doctor, and there are a multitude of doctors, to have this wrong.
Dr Khong, who is part of the same group of Workers Doctors, only records the neck upon a subsequent attendance. On 21 February 2020 Dr Khong does not mention the neck and there are more examples of the lack of contemporaneity.
This can be explained in certain cases where there is no real credit issue, however the respondent submits there is a very substantial credit issue in this case.
Dr Khong in his report of 17 April 2020 makes no mention of the neck. On 18 November 2022 Dr Khong says the applicant has had some right sided neck and shoulder pain since his injury in 2019.
This flies in the face of all the records that we know show no history of neck complaints.
The functional assessment report of Mr Ho on 28 May 2021 includes a normal range of movement of the cervical spine on flexion, extension, lateral flexion and rotation with reported shoulder pain.
The respondent submits this is a very specific, very detailed analysis and examination, and there is no mention of the neck condition.
Dr Bentivoglio does get a history of the fall and he is a bit of an outlier in many respects.
Dr Bodel’s first report post-dates the fall but he did examine the applicant prior the fall in 2022. Dr Bodel does not significantly engage with that incident or adequately explain how such a significant fall would be of no impact. Dr Bodel does seek to explain things by applying the disease process but that is not the allegation pleaded or the assertion of the applicant.
There is also a consequential gastrointestinal injury pleaded.
It is well known the medication may cause gastrointestinal issues. The applicant has the obligation to establish to a real degree of persuasion that there is a nexus with a consequential gastrointestinal condition.
Dr Greenberg’s reports do not greatly assist in the respondent’s submission. When asked about the relationship between the accident and the medical condition Dr Greenberg says it is recognised that current prescribed medication is associated with adverse gastrointestinal events.
There are other conditions the applicant complains of that are causative of gastrointestinal problems. Dr Truskett does not agree with Dr Greenberg’s assessment based upon the methodology of assessment.
Dr Truskett observes the applicant is suffering from reflux from a hiatus hernia which is a constitutional issue. This does not reach a threshold for category one and there is therefore no rateable impairment. The respondent’s submission is that the applicant simply fails to establish a nexus between the injury and a gastrointestinal condition.
The respondent relies on the reports it has provided as well as the clinical records which do not support the foundations which go to the complaints which form the basis of the applicant’s medico legal opinions.

Applicant’s submissions in reply

Dr Greenberg has been fairly forthright in terms of the cause of gastrointestinal issues as resulting from the medication used due to the work injury provided HPI was excluded.
The applicant has to prove or convince the Commission that there has been some material contribution to the condition from the work injury.
There can be more than one material contribution, as said by Roche DP in Murphy v Allity Management Services Pty Ltd and by the Court of Appeal in Ozcan v Macarthur Disability Services Limited which agreed with State Government Insurance Commission v Oakley.
With respect to the date of injury, in the case of Szenczy President Judge Phillips referred to the real issues needing to be decided although the specific date of injury had not been pleaded by the applicant.

FINDINGS AND REASONS

The applicant sustained a cervical spine injury on 12 October 2019

It is accepted the applicant sustained injuries to his lumbar spine, right shoulder and right knee on 12 October 2019. The respondent disputes the applicant also sustained a cervical spine injury on that date.
The applicant has the onus of establishing his cervical spine condition is a personal injury that arose out of or in the course of employment with the respondent, and that the employment was a substantial contributing factor to his cervical spine condition; ss 4 and 9A of the 1987 Act.
A personal injury is “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”, or in other words a “sudden identifiable change.”[12]
[12] Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47.
Suddenness is not necessary for there to be an injury, although it may be relevant in distinguishing a physiological change from the natural progression of an underlying disease.[13]
[13] Ky v Blue Leaf Food Group Pty Ltd [2016] NSWWCCPD 55 at [55].
The applicant is able to rely on injury simpliciter despite the existence of a disease.[14] A sudden identifiable physiological change can be caused by a personal injury, and the fact that the change is connected to an underlying disease process does not prevent the injury from being a personal injury. The change may be as simple as a soft tissue strain.[15]
[14] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310.
[15] North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [77].
On balance the evidence supports a finding that the applicant sustained a cervical spine injury on 12 October 2019.
The applicant’s evidence is that he felt pain in his neck on 12 October 2019 as well as in his lumbar spine, right shoulder, right elbow and right knee. His neck pain was not too severe at the time and only became worse about 6 to 12 months after the work injury.
Dr Bodel’s opinion is that the applicant sustained a soft tissue injury to the neck which he developed on 12 October 2019. The mechanism of injury was carrying the heavy bearer and removing it from the side of the concrete pour using a pinch bar.
The respondent’s submission that the applicant did not sustain a cervical spine injury on
12 October 2019 is based on the absence of contemporaneous complaints of neck pain.
The evidence supports the conclusion that the absence of contemporaneous records of neck pain prior to mid-2020 results from the nature and severity of the applicant’s other injuries on 12 October 2019, and the focus on their treatment in that period, and from the applicant’s evidence that his neck pain at the time was minimal, becoming worse in about mid-2020.
The clinical records show the applicant’s lumbar spine, right shoulder, right elbow and right knee injuries were of more concern to him at the time of the injury and were the focus of his complaints and treatment.
Dr Bodel’s opinion is that while the applicant had the neck injury at the time of the incident his right shoulder, lower back, knee and leg complaints were more severe and they were concentrated on at the time of the injury.
The applicant includes injuries to the right shoulder, lower back, right arm and hand, left and right hips in the claim form of 17 October 2019. The absence of a reference to neck pain is in my view explained on the above bases.
The applicant’s evidence that his neck pain was initially mild and became worse in about mid-2020 is consistent with the histories taken by Dr Bodel, Dr Bentivoglio and Dr Khong.
It is also consistent with the clinical records of Workers Doctors.
Dr Mo first records cervical neck symptoms on 26 June 2020 which are of the same severity as the applicant’s back pain.
Dr Lee, qualified by the respondent, records on 17 September 2020 that the applicant notices neck pain radiating down through the shoulder, elbow and hand on the right side, although the main problem is his back.
On 28 May 2021 Mr Ho carries out a functional assessment of the applicant’s capabilities for work. Mr Ho carried out a range of motion examination of the cervical spine that was within normal range, although with reported shoulder pain.
This assessment is inconsistent with other medical evidence however and I do not afford it great weight.
Dr Bodel examines the applicant on 23 March 2022 and notes he complains of tenderness in the neck on both sides and has a slight restriction of neck flexion, extension and rotation in all directions. Dr Bodel finds a soft tissue injury to the neck resulting from the injury on
12 October 2019.
On 26 May 2022 Ms He, physiotherapist, refers to cervical radiculopathy radiating down to the right shoulder, a current sign and symptom of neck pain, and intense pain especially over the neck and back.
Other evidence with respect to the applicant’s neck condition includes:
(a)    the applicant attended the Emergency Department at Westmead Hospital on
5 September 2022 due to neck and right shoulder pain;
(b)    the MRI of the cervical spine carried out on 23 September 2022;
(c)    Certificates of Capacity issued after 27 September 2022 include C5/6 disc extrusion with annular fissure and refer to worsening neck pain;
(d)    the applicant attended the Emergency Department at Westmead Hospital on
5 August 2024 due to acute chronic neck pain in the context of C5/6 extrusion with annular fissure, and
(e)    the MRI of the cervical spine carried out on 23 December 2024.
The respondent submits there is a credit issue in particular regarding the applicant’s consultation with Dr Abdullahon 25 March 2024 however I am not persuaded by that submission.
The applicant first consulted Dr Abdullah on 14 October 2019 for lumbar back pain after heavy lifting at work, a medical certificate was provided for two days and a CT of the lumbar spine was requested.
On 16 October 2019 Dr Abdullah notes the back pain is improving and he gave the applicant the results of the CT scan. The applicant asked him about WorkCover and Dr Abdullah provided a medical certificate for three days.
There is no record is made of a complaint of neck pain by Dr Abdullah on 14 or 16 October 2019.
On 25 March 2024 the applicant attended on Dr Abdullah who records as set out at paragraph 126 above the applicant requests a medical certificate that he had neck and back pain when he saw Dr Abdullah on 14 October 2019, which the doctor declined.
The applicant’s evidence is that he asked Dr Abdullah about his neck pain not having been recorded on 14 October 2019, and he did not intend to have Dr Abdullah provide or alter documents to include his neck injury as part of his work injury. He went to clarify if he had mentioned his neck pain and what the process would be to have his neck pain form part of the claim.
The applicant considers perhaps he and Dr Abdullah misunderstood each other due to the Arabic dialect which most likely caused some confusion. His intention was to clarify what the process was because he has always had neck pain following the work injury.
The respondent submits Dr Abdullah has recorded carefully what was said to him by the applicant on 25 March 2024, there is no record of misunderstanding and that record is a sufficient basis for finding there is no neck injury.
The applicant’s evidence disputing the accuracy of Dr Abdullah’s notation of 25 March 2024 is not independently supported. The applicant’s evidence must then be assessed with great care in order to determine whether it can properly be accepted as proof that he did not ask Dr Abdullah on that day to create a false record of neck pain in October 2019.[16]
[16] Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 at [78].
A consideration of whether the disputed evidence is consistent with other relevant evidence and the apparent logic of events[17] lends support to accepting the applicant’s evidence regarding what occurred on 25 March 2024.
[17] Fox v Percy (2003) 214 CLR 118 at [30] – [31], Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186 at [27].
Dr Abdullah records on 25 March 2024 not unsurprisingly that the visit note he made on
14 October 2019 does not mention neck pain, and that if the applicant complained of neck pain at that time he should have informed Dr Abdullah so that proper investigations would have been carried out.
On 14 October 2019 Dr Abdullah records only lumbar back pain as the reason for the applicant’s visit and that was the diagnosis made.
On 17 October 2019 Dr Calvache-Rubio of Workers Doctors records the applicant has multiple physical injuries, initially presenting for consultation for back, shoulder and elbow injuries due to his work. The applicant completes a claim form that day.
The applicant may not have complained of his mild neck pain to Dr Abdullah on 14 October 2019 in light of his other injuries. If Dr Abdullah did carry out a more thorough examination of the applicant including of his shoulder and elbow, the doctor may not have made a complete record of his examination.
In any event the applicant gives evidence of two other miscommunications; he describes falling in the ‘shower bath’ being recorded as falling in a swimming pool, and that the words for ‘knee’ and ‘neck’ in Arabic are similar and may explain why no record was initially made by Workers Doctors of his neck pain.

The applicant’s statement evidence is otherwise supported by independent or objective evidence.
The other evidence and the apparent logic of events lend support to the applicant’s evidence that his intention was to ask Dr Abdullah about a record of neck pain, the process to have it included in his claim, and that he did not intend to have Dr Abdullah provide or alter documents to include his neck injury.
While the applicant’s evidence with respect to his consultation with Dr Abdullah on
25 March 2024 must be treated with caution, I have formed the view that the applicant’s credit is not impugned.
As I have found the absence of contemporaneous records of the applicant’s neck pain is due to the initially mild nature of that pain which subsequently worsened, the evidence regarding the consultation with Dr Abdullah on 25 March 2024 is otherwise not material.
The respondent’s submission is that there is a consistent failure to mention any form of neck symptomatology or frank neck injury to Workers Doctors until 26 June 2020, and this is not explained by the applicant’s statement.
The applicant first attended Workers Doctors on 17 October 2019. Symptoms recorded include headaches, right shoulder pain, right elbow pain and lower back pain, and did not include neck pain until June 2020.
The applicant’s evidence is that he had pain in his neck from the October 2019 injury. When he first saw Workers Doctors he states he remembers pointing out to the doctors through an Arabic interpreter that he had suffered injury to his neck on 12 October 2019 in addition to the other injuries.
He states there must have been some miscommunication with the interpreter and the doctor as the words ‘neck’ and ‘knee’ in Arabic sound very similar. That is the only explanation he can think of as he always had pain in his neck from the date of the work injury.
No further evidence is available regarding the similarity of those two words in Arabic and I make no finding in that regard.
I have in any event accepted the evidence that the applicant’s neck pain was mild and became worse in mid-June 2020.
The respondent submits Dr Khong first saw the applicant on 21 February 2020 and makes no mention of the neck.
The applicant was referred to Dr Khong on 12 December 2019 for his opinion on deteriorating lower back pain with radicular symptoms, with bulging disc in CT scan.[18]
[18] ARD page 306.
Dr Khong saw the applicant on three occasions in 2020 for his back pain before the applicant consulted him again on 18 November 2022 regarding his cervical spine.
Dr Khong then records the applicant has had neck pain since the 2019 injury which has been gradually worsening.
The respondent’s submission is that this flies in the face of all the records that show no history of neck complaints.
I do not accept that submission as the evidence establishes the focus was on the applicant’s other more severe injuries on 12 October 2019 and his neck pain became worse in about mid-2020.
Dr Bentivoglio provides his opinion that the applicant’s cervical condition is not the result of the injury in 2019.
Following his examination of the applicant on 6 December 2022 Dr Bentivoglio diagnoses a C5/6 disc bulge but he does not believe it is related to the work injury on 12 October 2019 as it came on significantly after the work injury and perhaps after a fall in mid-2022.
The applicant’s evidence which I accept is that his neck pain was mild at the time of the injury and became worse in mid-2020.
I also do not accept Dr Bentivoglio’s suggestion that a fall in mid-2022 is the cause of the applicant’s cervical spine condition.
Dr Bentivoglio’s opinion is equivocal; “perhaps it was secondary to the fall he had six months ago”, the fall “may have been the significant exacerbating factor to his neck” and “I think the injury to his cervical spine is probably a fairly acute disc bulge, more related to an injury six months ago than one three years before.”[19]
[19] Reply page 41.
The applicant’s evidence is that he fell getting into the shower in about June 2022 when his back and right knee felt stiff and locked up.
There is no evidence that the applicant sought medical treatment in about June 2022 as a result of a fall.
Dr Mo records on 5 September 2022 the applicant had a recent flare up of neck and right shoulder pain two days ago, the trigger is unclear, the applicant denies any fall or impacts to his neck or shoulder, and he attended Westmead Hospital.[20]
[20] ARD page 140.
Ms He, physiotherapist, notes on 15 September 2022 the applicant attended hospital last week due to excruciating pain extending from the neck to the right shoulder and denies any trauma or overload/overuse.
There is no reference in the report of the MRI of the cervical spine on 23 September 2022 that his condition is the result of a fall. The clinical history is exacerbation of neck and right shoulder pain after a workplace injury with no reference to a more recent fall.
The respondent’s submission that Dr Bodel, who examined the applicant in March 2022, does not engage with this incident is not persuasive in my view as aside from the examination occurring before the fall there is no evidence of a significant fall affecting the applicant’s neck in mid-2022.
I do not accept the respondent’s submission that a separate, distinct or significant injury was caused by the applicant’s fall in mid-2022 and is the cause of his cervical spine condition for the above reasons.
This is the only alternative explanation available on the evidence for the applicant’s cervical spine condition.
I prefer Dr Bodel’s opinion that the applicant suffered a frank injury to his neck on
12 October 2019. Dr Bodel explains the mechanism of injury, takes a detailed and consistent history and examines the applicant to form his opinion.
Dr Bodel comments that “it is probably a frank injury but it is at the very least a consequential injury by way of aggravation, acceleration, exacerbation and deterioration at the C5/6 disc injury associated with the pain and stiffness and referred pain in the right arm and shoulder.”[21]
[21] ARD page 44.
While I note the applicant’s submission regarding the nature of pleadings as discussed by President Judge Phillips in Szenczy[22] the issue does not arise in this case.
[22] Michelle Gai Weston t/as Northmead Beauty Therapy (ABN 83824752583) v Szenczy [2019] NSWWCCPD 38 at [166].
There is no evidence the applicant has any pre-existing cervical spine condition. There is no alternative explanation available for his cervical spine condition
I am persuaded on the balance of probabilities based on the whole of the evidence[23] that the applicant sustained a cervical spine injury on 12 October 2019 and that the employment was a substantial contributing factor to the injury.

The applicant sustained a consequential gastrointestinal condition
[23] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.

It is not necessary for the applicant to establish he suffered a gastrointestinal injury within the meaning of s 4 of the 1987 Act. He has to establish the symptoms and restrictions of his gastrointestinal condition have resulted from his accepted injuries on 12 October 2019.[24]
[24] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 at [345].
The test of causation requires a common sense evaluation of the causal chain, and is a question of fact determined on the basis of the evidence, including expert evidence where applicable.[25]
[25] Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.
The applicant consulted Dr Chen on 10 June 2023 with non-specific gastrointestinal symptoms. Dr Chen notes likely multifactorial causes including medications, weight gain and increased tobacco use.
The results of a gastroscopy and colonoscopy on 28 August 2023 include HPI associated moderate active chronic gastritis complicated by gastric ulcer and functional constipation (likely exacerbated by his medications).
Dr Greenberg lists the medications prescribed for the applicant, notes his symptoms in the upper and lower digestive tract and examines the applicant. Dr Greenberg comments that it is recognised the current prescribed medication is associated with adverse gastrointestinal events, which he understands have been prescribed consequential to the applicant’s work-related injury, and which is a contributing factor to his current gastrointestinal symptoms.
The Urea breath test reported on 23 January 2024 was consistent with HPI in the stomach, and confirmed on pathology on 13 February 2024 following a further gastroscopy which also showed a small hiatus hernia and antral ulcers. The Urea breath test on 12 April 2024 showed the absence of HPI.
Following the eradication of HPI Dr Greenberg assesses the applicant with symptoms consistent with gastro-oesophageal reflux disease and an intestinal motility disorder with 2% WPI of the upper gastrointestinal tract and 3% WPI for the lower gastrointestinal tract with a combined total of 4% WPI.
Dr Truskett diagnoses symptoms of gastroesophageal reflux secondary to a hiatus hernia (a constitutional disorder) and minimal constipation which may in part be due to the ingestion of codeine.
Dr Truskett’s opinion is that no injury or disease of the upper or lower digestive tract results from the applicant’s work-related injury. The applicant no longer has dyspepsia probably caused by HPI and the gastroesophageal reflux is due to the hiatus hernia. Constipation is a symptom not a sign of the effect of analgesics on the lower digestive tract and is generally reversible. Dr Truskett assesses 0% WPI.
While constipation may generally be reversible as the respondent submits, Dr Greenberg’s opinion is that the applicant is unable to alter or stop his medication and needs to continue his current regime. His symptoms are consistent with chronic bowel dysfunction. There is no evidence that the applicant’s constipation is likely to be reversible.
As the applicant submits, a condition can have multiple causes and the work injury does not have to be the only or even a substantial cause as long as there is a material contribution to the condition from the work injury.[26]
[26] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 at [57], Ozcan v Macarthur Disability Services Limited [2020] NSWWCCPD 21.
Dr Greenberg has taken a full history of the applicant’s history of medications, symptoms and treatment and examined the applicant in order to form his opinion.
I prefer Dr Greenberg’s opinion that the use of medication prescribed for the accepted injuries has made a material contribution to the applicant’s gastrointestinal condition.
The evidence supports a finding that the symptoms and restrictions of the applicant’s gastrointestinal condition have resulted from his accepted injuries on 12 October 2019.

SUMMARY

In addition to his accepted injuries, the applicant sustained a cervical spine injury on
12 October 2019 and a consequential gastrointestinal condition.
The matter is to be remitted to the President for referral to a Medical Assessor for assessment of permanent impairment of the applicant’s right upper extremity (shoulder), lumbar spine, cervical spine, right lower extremity (knee) and digestive system.

[2025] NSWPIC 262

12 June 2025