Arora v Toyota Motor Corporation Australia Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Arora v Toyota Motor Corporation Australia Ltd [2025] NSWPIC 148
APPLICANT:	Jasvinder Arora
RESPONDENT:	Toyota Motor Corporation Australia Limited
MEMBER:	Fiona Seaton
DATE OF DECISION:	11 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for lump sum compensation; accepted left knee and lumbar spine injuries; disputed cervical spine and bilateral shoulder injuries; relevant date of injury for lump sum claim; Haddad v The GEO Group Australia Pty Ltd considered; Held – applicant sustained aggravated injuries to his cervical spine and bilateral shoulders; injuries arose from the same injurious incident being the nature of the duties performed by the applicant; injuries to be assessed together under section 322(3) with deemed date of injury 1 April 2022.
DETERMINATIONS MADE:	The Commission determines: 1. The Commission is able to determine the claim made by the applicant for lump sum compensation on 25 January 2023 pursuant to s 289(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). 2. The applicant has sustained injuries to his cervical spine and both shoulders pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act). 3. The injuries to the applicant’s left knee, lumbar spine, cervical spine and both shoulders arise from the same incident and are to be assessed together for permanent impairment pursuant to s 322(3) of the 1998 Act with deemed date of injury 1 April 2022. 4. The applicant is entitled to payment of reasonably necessary medical or related expenses as a result of the injuries pursuant to s 60 of the 1987 Act. The Commission orders; 1. This matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment as follows; Date of injury: 1 April 2022 (deemed). Body systems/parts: left lower extremity (knee), lumbar spine, cervical spine, left upper extremity (shoulder), right upper extremity (shoulder) and scarring (TEMSKI). Method of assessment: whole person impairment. 2. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the Reply and attached documents, and (c) the respondent’s Application to Lodge Additional documents dated 7 March 2025 and attached documents. 3. The respondent is to pay the applicant’s reasonably necessary medical or related expenses pursuant to s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Mr Jasvinder Arora was employed as a storeperson by the respondent Toyota Motor Corporation Australia Limited between January 2010 and 8 June 2022 when his employment was terminated.
In about November 2018 when he moved to the respondent’s new warehouse at Kemps Creek the applicant began to experience lower back pain. On 20 May 2019 when lifting a 20kg box he felt a click in his left knee, pins and needles in his neck, and pain in his left shoulder and lower back.
The insurer accepted liability for the applicant’s left knee and back injuries.
The applicant returned to work in February 2022 on restricted hours and duties. On
29 March 2022 he was unable to continue working due to pain in his back, neck and both shoulders.
A notice issued on 13 December 2022 under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) disputed liability for the applicant’s consequential right shoulder injury with date of injury 29 March 2022.
The applicant made a claim for lump sum compensation on 25 January 2023 for 21% whole person impairment for permanent impairment of his left knee, cervical spine, lumbar spine, both shoulders and scarring.
On 5 June 2023 a further s 78 notice was issued disputing the applicant’s claim for lump sum compensation for injury on 20 May 2019 to the cervical spine, lumbar spine, left knee, scarring, and both shoulders.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 19 December 2024 claiming lump sum compensation and medical or related expenses as a result of injury with deemed date of injury 25 January 2023.
The dispute was listed for conciliation conference and arbitration hearing on 17 March 2025.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether the applicant’s claim for injury on 25 January 2023 and/or deemed date of injury 25 January 2023 can be referred for determination by the Commission pursuant to s 289(3) of the 1998 Act;
(b) whether the applicant has sustained an injury to his neck on 20 August 2019 or to his neck and right shoulder on 29 March 2022 pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (1987 Act);
(c) whether the applicant has sustained an injury to his left shoulder pursuant to ss 4 and 9A of the 1987 Act;
(d) whether the applicant has sustained any disease in the course of employment pursuant to s 4(b) of the 1987 Act;
(e) whether the applicant’s impairments are able to be combined pursuant to s 322 of the 1998 Act, and
(f) whether the applicant is entitled to the payment of medical and related expenses as a result of injury pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing in the Commission on 17 March 2025. Mr Ty Hickey of counsel appeared for the applicant instructed by
Ms Zahra Panju, legal practitioner. Ms Lyn Goodman of counsel appeared for the respondent instructed by Mr Tim Ainsworth, legal practitioner. Ms Kruse was also present.
During conciliation the respondent’s Application to Lodge Additional Documents dated
7 March 2025 was admitted into evidence.
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, and
(c)    respondent’s Application to Lodge Additional Documents dated 7 March 2025 and attached documents.

Oral evidence

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

Applicant’s evidence

The applicant relies on his statement of 27 September 2023.
When he started as a full time storeperson with the respondent in January 2010 he had a medical assessment which he passed. He was fit, healthy and well enough to do the role.
His job involved picking and packing items weighing up to 20kg, heavy lifting including lifting boxes of 5l containers, unloading containers, loading trucks and operating a forklift. He was required to move pallets and assemble pallets of oils and parts.
When he moved to the new warehouse in Kemps Creek in November 2018 his manager asked him to work in the dispatch oil area as he had good experience in the warehouse. He got a ticket for the different dealerships and the different oils were palletised for the dealers.
The applicant used a flat-back trolley to handle 5l cans of oils which were ordered in sets of four. In every shift he picked the oils, scanned them and palletised them for dispatch. The orders varied in size and each box weighed approximately 20kg.
A cage was available for placing the orders to be delivered. The applicant assembled a pallet when required and scanned the next one. This involved constant bending and lifting to reach the boxes to place them in the trolley.
One to two hours of overtime were completed by the applicant daily.
On 20 May 2019 the applicant bent down to pick up a 20kg box and as he straightened and turned to one side he felt a click in his left knee and pain in the front and centre of the knee. He felt a mild pain in his left shoulder and his neck felt extremely stiff, with immediate pins and needles.
Over the next few days he suffered with increased pain in his left knee and the left side of his lower back, radiating to his left shoulder and the base of his neck.
Before this incident the applicant would get occasional pain in his neck and lower back due to repetitive tasks of bending and lifting heavy weight, he was sore all over his body and he was extremely tired after work. He went home and rested and proceeded to work the next day as usual.
The applicant suffered a hernia injury in May 2021, which is not the subject of these proceedings, from lifting and twisting while unloading large boxes of disc brakes from a platform to the floor. The applicant had surgery for his hernia in July 2021.
In October 2021 left knee surgery was carried out and the applicant returned to work in February 2022 to a job in the small parts area that was supposed to be suitable for his restrictions.
This job involved standing and using a scanner that weighed about 600g to scan small parts. The target was 170 per hour which involved lifting the box, scanning it, placing it back and moving to the next one. Although he found it quite difficult the applicant tried his best to perform the task.
The applicant’s back was in considerable pain and he had discomfort in his shoulder.
After four weeks of the return to work plan the applicant was informed he must return to an eight hour workday and failure to do so could lead to termination. His request for changes due to his difficulty coping with the pain was denied.
On restricted duties the applicant was required to use his right shoulder more frequently and he began to feel right shoulder pain. He pushed himself to continue the work and was overworking to match his targets although he was always fatigued and sore. He was afraid of being terminated.
On approximately 29 March 2022 he reported for work in pain and advised his supervisor that he could not complete the assigned tasks due to pain.
A delay in the left knee surgery heightened the applicant’s anxiety that he initially felt in 2019. He became withdrawn due his constant pain, he felt agitated with low mood, and he felt cranky all the time. These symptoms have persisted since 2019. He never went on medication due to concern about the side effects.
Since 2019 he has felt useless and unhappy. He does not feel like himself as he cannot do all the functions he was able to do.

Dr Jonathan Herald, independent orthopaedic surgeon

The history provided by the applicant in Dr Herald’s report dated 24 August 2022 is of the injury on 20 May 2019 when he sustained an injury to his left knee and lower back and to a lesser degree his neck and left shoulder.
Dr Lim, general practitioner, referred him to physiotherapy and to Dr Soo, orthopaedic surgeon, primarily for his left knee. His neck and shoulders were treated with conservative treatment such as physiotherapy. The applicant saw Dr Anthony Keeley for a second opinion about proposed knee surgery.
After trying cortisone injections followed by platelet-rich plasma injections, left knee surgery was recommended but approval was initially declined. The applicant had left knee arthroscopy and iliotibial band (ITB) release surgery on 19 October 2021, however the pain persisted.
On his return to work in February 2022 the applicant felt back pain from standing all day, neck pain as well as right shoulder pain. Dr Chin (who I understand to be Dr Calvin Chien), orthopaedic surgeon, suggested an MRI scan which was carried out on 16 May 2022 after approval was initially declined. This showed a partial thickness rotator cuff tear. Dr Chien advised that an injection may be of benefit but surgery is not required. The applicant’s current treatment is a gym programme.
Following examination, Dr Herald assessed the applicant as having right shoulder partial thickness rotator cuff tear, left shoulder impingement syndrome, left knee chondromalacia patellae with subsequent ITB lengthening, aggravation of underlying lumbar spondylosis and aggravation of underlying cervical spondylosis with non-verifiable radicular complaints to bilateral upper limbs.
In Dr Herald’s opinion the applicant’s job as a storeperson for the respondent is a substantial contributing factor to the injuries to his neck, back, both shoulders and left knee. He had a full recovery over a three month period from a previous arthroscopy to his right knee and he has never had previous injuries to his back, neck, left knee or shoulders.
Dr Herald assessed 7% whole person impairment (WPI) for the cervical spine, 5% for the lumbar spine, 5% for the right shoulder, 2% for the left shoulder, 2% for the left knee and 2% for left knee scarring, totalling 21%.
In his report of 25 September 2024 Dr Herald confirmed the history outlined above and noted the applicant continues to have neck pain, back pain, left knee pain and right shoulder pain and he is reliant on Panadol for pain relief.
Following examination, Dr Herald assessed the applicant as having bilateral shoulder impingement syndrome, left knee chondromalacia patellae with subsequent ITB lengthening, aggravation of underlying lumbar spondylosis and aggravation of underlying cervical spondylosis with non-verifiable radicular complaints to bilateral upper limbs.
Dr Herald’s opinion is that the employment, particularly the workplace injury on 20 May 2019 and his subsequent attempts to return back to work over the next few years, have resulted in the workplace injuries he has assessed.
With respect to the neck and both shoulders, the repetitive lifting and scanning at work are the main contributing factors to his injuries and the progression of his condition, with the left shoulder seeming to have progressively deteriorated like his right shoulder.

Dr Peter Khong, treating neurosurgeon and spine surgeon

Dr Khong first saw the applicant on 30 September 2022.
Dr Khong notes that after returning to light duties in February 2022 the applicant complained of worsening pain whilst working and he stopped working in April 2022. He complained of persistent bilateral neck pain with pins and needles in the right shoulder down to the hand and all the fingers with occasional numbness. He had midline and bilateral lower back pain, worse on the left with shooting pains radiating down the left thigh, neck pain and stiffness and bilateral shoulder pain.
Dr Khong last reviewed the applicant on 17 February 2023 when he continued to complain of neck pain, bilateral shoulder pain and lower back pain, and he had no capacity to work at that time.
In the doctor’s opinion the employment is the main contributing factor. The applicant developed neck, back and knee pain as a result of his original workplace injury whilst doing lifting and twisting. His pain was further aggravated by his return to work and he also developed worsening bilateral shoulder pain after returning to work. His prognosis is guarded but likely poor.

Dr Calvin Chien, treating orthopaedic surgeon

On 28 July 2022 Dr Chien reports the applicant was referred to him with a right shoulder partial rotator cuff tear which the doctor has managed non-operatively until it progresses.
The symptoms, diagnosis and incapacity are a result of his employment.
Having worked in the auto industry for 20 years performing his duties would have started to cause injury to the rotator cuff, and the altered duties he was performing in 2022 would have precipitated his shoulder injury and symptoms. He is too young to have a spontaneous tear outside of his employment.
The condition starts off as tendinosis then progresses to a partial tear, a complete tear, then the tendons get involved and eventually cuff arthropathy occurs. When full thickness tear occurs, and if the applicant is still of a reasonable young age, surgical repair will be recommended to slow or prevent progression to cuff arthropathy.

Dr Eric Lim, treating general practitioner

In his report of 1 November 2022 Dr Lim provides a diagnosis of lumbar spine radiculopathy, right knee aggravation, left knee strain (overcompensation), full thickness fissure patella, undisplaced chondral flap, chronic pain with psychosocial barriers, left knee surgery, right shoulder strain, subscapularis tear, labral tear, adhesive capsulitis (consequential), and cervical spine C4 nerve root compression.
The applicant’s neck, back and bilateral knee injuries are due to repetitive heavy lifting, twisting and prolonged standing at work over years. Work was the main contributing factor for the injury.
After his return to work in 2022, as a result of his work injuries he has had to work with modifications using his right arm repeatedly, causing right shoulder aggravation. He was stood down in April 2022 when he raised his concerns.
On 17 November 2022 Dr Lim reports the right shoulder injury of 29 March 2022 is due to repetitive lifting and scanning at work, with a pre-existing issue of shoulder pain from work on 25 May 2019, and work was the main contributing factor for the injury.
On 28 May 2024 Dr Lim provides a medicolegal report with respect to the right shoulder injury. The injury is due to repetitive lifting and scanning at work. Work was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the injury.

Other evidence

The clinical records of the Workers Doctors and of Dr Calvin Chien are with the ARD and relied on by the applicant.
Outstanding invoices of the Workers Doctors attached to the ARD for the neck, back and knee conditions total $507 and for the right shoulder total $367.

Respondent’s evidence

The following s 78 notices are with the reply;
(a)    14 October 2020 - entitlement to ongoing weekly payments is disputed, maintained on internal review on 5 March 2021;
(b)    12 May 2022 - liability for the right shoulder injury and requested MRI is disputed;
(c)    18 November 2022 - requests for psychological treatment and MRI of the cervical spine are disputed, maintained on internal review on 28 May 2024;
(d)    13 December 2022 - liability for the right shoulder injury is disputed, and
(e)    5 June 2023 - liability for lump sum compensation is disputed, maintained on internal review on 28 May 2024.
The Commission’s Certificate of Determination - Consent Orders of 11 August 2021 with respect to the back and left knee injuries include that the respondent was to pay weekly compensation on a voluntary basis, medical and treatment expenses to $2,000 and the costs of left knee surgery proposed by Dr Keeley. There was an award for the respondent for the right knee and the applicant discontinued the claim for injury to his neck.
The Commission’s Certificate of Determination – Consent Orders of 21 August 2024 include that the respondent was to pay on a voluntary basis eight sessions of psychological treatment with respect to the injury of 20 May 2019.

Dr Richard Powell, independent orthopaedic surgeon

Dr Powell provides six reports regarding the applicant’s injuries.
In the report of 24 August 2020 Dr Powell notes the applicant’s main concern is in relation to his left knee, and he also has pain in his lower back.
Dr Powell’s diagnosis is of gradual development of some left sided back symptoms in the weeks leading up to 20 May 2019 when he twisted his left knee which remains symptomatic. The lower back symptoms most likely reflect a minor underlying soft tissue injury. There was no history of any cervical spine injury and the right knee is now asymptomatic.
It is reasonable to conclude the employment represents a substantial contributing factor in the development of the left knee and lower back symptoms in Dr Powell’s opinion. This takes into account the nature and conditions of his employment as well as contribution from the specific workplace incident occurring on or around 20 May 2019.

Ongoing symptoms are unrelated to the applicant’s employment as any injury in the manner described over 12 months ago would have been minor and temporary.
Dr Powell provides a supplementary report on 28 September 2020. There was no examination of the applicant’s cervical spine on 20 August 2020 as the cervical spine was not part of the symptom complex described by the applicant. There is certainly no causal link between the left knee and the lower back or cervical spine conditions in the doctor’s opinion.
In a further supplementary report of 30 June 2021 Dr Powell opines that the proposed left knee surgery proposed by Dr Keeley is a reasonable treatment option, although it is not required on the basis of injuries sustained on 20 May 2019.
There is no evidence of injury to the applicant’s cervical spine or right knee on 20 May 2019 in Dr Powell’s opinion and pain and symptoms do not support these injuries. The applicant made no mention of them and the mechanism of injury described would not result in injury to the cervical spine.
At the time of Dr Powell’s assessment of the applicant in August 2020 there was no evidence of a cervical spine injury. It is possible the nature and conditions of his employment resulted in an aggravation of pre-existing degenerative disease processes in the cervical spine and left knee but the aggravation would have resolved.
On 10 June 2022 Dr Powell reports the applicant remains symptomatic in relation to the left knee and lower back. The lumbar spine injury most likely represented a musculoligamentous injury. Any injury sustained would have been minor and temporary and settled long ago. The applicant is slowly improving, however it is likely he will continue to experience intermittent symptoms in the lower back and left knee.
On 21 April 2023 Dr Powell provides his opinion that the left knee procedure on
19 October 2021 does not appear to have resulted in any sustained symptomatic or functional improvement.
The doctor notes the applicant complained of the insidious onset of right shoulder symptoms after returning to work in February 2022 with no precipitating incident. The MRI scan of
16 May 2022 reportedly demonstrated a partial thickness rotator cuff tear.
Ongoing symptoms of the left knee, lower back, cervical spine and right shoulder were reported by the applicant.
Following his examination, Dr Powell diagnoses non-specific lower back pain most likely representing a minor musculoligamentous injury, left knee patellofemoral chondral damage, non-specific cervical spine symptoms with normal clinical examination, and right shoulder partial thickness rotator cuff tear.
Dr Powell notes clinically the applicant has similar findings in the shoulders, suggesting he is suffering from a pre-existing constitutional or degenerative disease process bilaterally.
The doctor agrees in general terms with Dr Herald’s diagnoseJusts on 24 August 2022.
It is reasonable to conclude in Dr Powell’s opinion that the employment resulted in an aggravation of pre-existing degenerative pathology involving the left knee and lower back, for which liability has been accepted. The aggravation has resolved and ongoing symptoms are consistent with the natural history of the underlying degenerative disease processes.
There is no causal connection between the injury on 20 May 2019 and the applicant’s right shoulder condition in the doctor’s opinion. There is not sufficient evidence that the right shoulder and neck symptoms were the result of any injuries sustained in the course of employment and any aggravation would have settled long ago.
Dr Powell assesses 1% whole person impairment for scarring.
Dr Powell examined the applicant again on 15 January 2025 and his diagnosis remains unchanged.
The applicant is diagnosed with left knee and lower back injuries reflecting the nature and conditions of employment and a specific workplace incident on 20 May 2019.
Dr Powell’s opinion is that the applicant is also suffering from non-work related conditions of non-specific cervical spine symptoms and bilateral shoulder symptoms which are more severe on the left.
The lumbar spine and left knee injuries are attributed to one particular incident. There is no assessable permanent impairment of the applicant’s work-related injuries in Dr Powell’s opinion.

Imaging reports

Reports of the regional bone scan of 19 March 2020 and MRIs of the lumbar spine and left knee of 7 June 2019, the right shoulder of 16 May 2022, the left knee of 6 June 2022, the cervical spine of 2 August 2022 and the lumbar spine of 11 October 2022 are with the reply.

Applicant’s claim form and earlier statements

The applicant’s claim form dated 21 May 2019 is for injuries on 20 May 2019 to his right and left knees, right hip and lower back while pushing a trolley, picking and binning parts.
A statement dated 22 January 2021 is in similar terms to the applicant’s statement of
27 September 2023. The applicant describes the previous right knee injury of 27 July 2010, his return to pre-injury duties after surgery in 2012 and the injury on 20 May 2019.
A further statement of the applicant dated 10 November 2022 is made to an investigator. He includes a more detailed description of the injury on 20 May 2019. Left knee surgery was recommended in about November 2019 but was not approved. He took Panadeine Forte for the pain in his left knee, back and neck. Elective surgeries were closed in 2020 and his claim for surgery was later approved in October 2021.
The applicant describes his efforts from 2019 to continue working and increase his hours.
He describes his return to work in February 2022 when he was required to scan 170 barcodes of all the items within the boxes in one line and that the pace was too fast for him. This work caused pain in his shoulder and his back was also really painful.
When he complained of the pain on around 29 March 2022 he was moved to the trolleys for a week and then he was told as there was no improvement there were no suitable duties and he could not come back. His employment was terminated on 8 June 2022. He has constant pain in his back, neck and shoulder.

Dr Anthony Cadden, independent orthopaedic surgeon

On 16 February 2023 Dr Cadden examines the applicant and opines that he suffered an original twisting injury to the left knee on 20 May 2019. On returning to work he developed right shoulder pain related to the twisting and scanning, with subsequent development of pain into the left shoulder.
Dr Cadden diagnoses left knee patellar cartilage changes from a twisting injury at work. The doctor notes reduced motion to both shoulders, the MRI showing a small partial thickness tear in the right shoulder, the MRI of the cervical spine showing compressive changes around the right C4 nerve root on the left C6 nerve root, and there is no imaging performed for the left shoulder. The cervical spine pathology can result in pain to the shoulders which may cause limitation of active motion due to pain.
The right shoulder symptoms occurred when the applicant returned to work in 2022 and symptoms to the shoulders would not be related to the 2019 claim. This would be a new issue arising from his return to work. Treatment would be physiotherapy with consideration for steroid injection to the shoulder.
On 15 May 2023 Dr Cadden’s supplementary report includes his opinion following his review of a factual investigation report of Procare dated 31 January 2023, which was not in evidence.
On the available evidence and on the balance of probabilities Dr Cadden says the current shoulder symptoms would be related to the cervical spine instead of the shoulder. There were no reported symptoms from the 2019 injury to the cervical spine which occurred from the time he returned to work.
Dr Cadden could not conclude there is a causal connection between the workplace injury in 2019 and the right shoulder injury. The left shoulder symptoms can be linked to changes in the cervical spine.

Dr Greg Cameron, independent occupational medicine physician

On 23 December 2019 Dr Cameron diagnosed the applicant with a soft tissue injury to the left knee. Any back or neck pain the applicant has is secondary to altered gait and will resolve once he has the appropriate treatment.
There was no clinical justification for the applicant to be on less than normal hours in
Dr Cameron’s opinion. He needs to be referred to an exercise physiologist for a gym based strengthening programme and should then be fit for pre-injury duties in six to eight weeks. He should be upgraded to full time suitable duties in the meantime.

Dr Anthony Keeley, treating orthopaedic surgeon

Dr Keeley reports on 16 November 2020 that the applicant’s symptoms are consistent with patellofemoral irritation and arthritis and he recommends left knee ITB release and cortisone injection.
A medicolegal report prepared for the applicant’s solicitors on 10 May 2021 describes the left knee injury, the treatment proposed and describes an antalgic gait with a short stance phase on the left leg. The doctor’s opinion is that incapacity is the result of the injury at work.
Dr Keeley reports two weeks post-surgery and cortisone injection on 3 November 2021 that the applicant is progressing reasonably well.
On 23 May 2022 however Dr Keeley notes the applicant’s shoulder pain on returning to work which is now being investigated, and that he is unclear as to the cause of the applicant’s ongoing knee pain. The applicant does have antalgic gait.
On 29 June 2022 Dr Keeley advises the applicant he has no explanation for his ongoing pain severity.
Dr Keeley’s clinical records are also with the reply.

Other evidence

Dr Chien’s file review and report of 28 July 2022 prepared for the applicant’s solicitor is discussed above.
MRI reports with the reply are of the lumbar spine and left knee of 7 June 2019, of the right shoulder of 16 May 2022, of the left knee of 6 June 2022, of the cervical spine of
2 August 2022, of the lumbar spine of 11 October 2022 and of the left knee of
4 November 2020.
The regional bone scan of 19 March 2020 shows increased tracer uptake in both patellae that could be due to enthesitis.
Documents produced by the St George Private Hospital in response to a direction for production issued on 10 July 2024 are attached to the reply.
These record the applicant’s admission on 19 October 2021 for left knee ITB release and injection of cortisone, and his admission on 5 January 2012 for right knee arthroscopy and partial medial meniscectomy.

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 submits his injuries result from the same injurious incident, namely the heavy repetitive duties performed by him in his employment with the respondent, relying on Department of Ageing, Disability and Home Care v Findlay.[1]
[1] [2011] NSWWCCPD 65 (Findlay).
In Findlay Roche DP dealt with two dates of injury with respect to an aggregation of separate body parts, and ultimately found the applicant’s injuries to her cervical spine and lumbar spine resulted from the same injurious incident, namely the heavy repetitive duties she performed, so that any impairments should be assessed together.
Here there are two different dates of injury, 2019 and 2022. These can be aggregated for the purposes of s 322 of the 1998 Act and properly determined by the Medical Assessor in accordance with Findlay to the effect that the injury exists in the aggravation of the disease.
There have been a number of aggravations over time and that is the injury for the purpose of s 4, and in determining the aggravation injuries there is the capacity to combine those injuries because they exist in the same injury.
Clearly an event occurred in 2019. There is no dispute on the evidence that this resulted in a left knee condition and a lumbar spine condition. The dispute is whether a cervical spine injury also arose.
The respondent relies on a number of medico legal reports from Dr Cadden and Dr Powell.
Dr Cadden seems to suggest in his original opinion at least that there was a shoulder pathology that was impacted by the second event or events in 2022. Dr Powell makes no such finding.
The applicant’s case is that in respect of each of those body systems there is an aggravation of an underlying general condition of the knee, the lumbar spine and cervical spine.
That is the position adopted in Dr Cadden’s reports, that there has been an aggravation in relation to the knee and the lower back. It is the case when reading the evidence that it can only be accepted there has been an aggravation in the spine.
The applicant submits there has also been an aggravation of the right and left shoulders as the result of the nature of the work that has been undertaken over the course of the employment.
When one works through the evidence and has regard to what is being said with respect to s 4 and DP Roche in Findlay it is entirely appropriate for those injuries to be referred off together.
The applicant referred to the following statement evidence;
(a)    there is a background history, much of which is not disputed, with respect to the nature of the arduous work undertaken, the heavy nature of the work, specifically some heavy lifting with respect to oil products on a particular day with constant bending, lifting and reaching for boxes that resulted in the onset of low back pain and left knee pain;
(b)    the applicant says his neck felt extremely stiff and he was feeling pain in his left shoulder. He continued working over the next few days and he was suffering with increased pain in the left knee and the left side of the lower back radiating to his left shoulder and the base of his neck;
(c)    the applicant says the pain to his neck, lower back and left shoulder were caused by the incident on 20 May 2019;
(d)    prior to that he was getting some occasional pain associated with the repetitive task of bending and lifting heavy weight and he describes soreness all over his body;
(e)    the applicant describes work undertaken in 2021, and a hernia injury sustained as a result of the nature of the work, the subject of prior proceedings in the Commission;
(f)    following surgeries the applicant returned to work in February of 2022 and was assigned to a standing job in the small parts area where he says he was scanning small parts with the target of 170 line per hour;
(g)    generally he tried his best to perform the work, he struggled to meet the speed required and ultimately he felt considerable pain in his back and in his shoulder. Over time this became worse;
(h)    he was required to use his right shoulder more frequently. He began to experience right shoulder pain due to the pre-existing injuries to his back, neck and left shoulder and relying heavily on the right shoulder, and
(i)    he continued working for fear of being terminated before he effectively reported it to his supervisor on 29 March 2022. None of this evidence is disputed.
In terms of the treating clinical material the applicant consulted Dr Lim on 21 May 2019 for an injury to his back, bilateral knees and neck.
The applicant came to Dr Lim following referral because his general practitioner did not take on workers compensation claims and a co-worker had mentioned Dr Lim to him.
The applicant reported he suffered a neck, back and bilateral knee injury due to repetitive lifting, twisting, prolonged standing at work over years, and from Dr Lim’s understanding it would be reasonable to conclude from the applicant’s role as a storeperson that the mechanism of injury was the direct result of performing those specific tasks.
The history was consistent with the employment being the main contributing factor and
Dr Lim did not have any other medical evidence to indicate an alternative mechanism of injury.
Dr Lim notes symptomatology of neck pain and stiffness radiating to bilateral shoulders, lower back pain radiating to the right hip, right thigh, right knee pain aggravated, left knee pain, clicking and locking, trouble sleeping and worry.
The diagnosis is cervical spine strain, lumbar spine radiculopathy, right knee strain, left knee strain, chronic pain with psychosocial barriers, and that background history is fairly consistent through the material.
Dr Soo’s clinical entries on 27 June 2019, 22 August 2019 and 19 September 2019 reference bilateral shoulders radiating pain. Dr Calvache-Rubio on 15 October 2019 refers to neck pain and stiffness radiating to bilateral shoulders, and again through January, February and May of 2020.
A s 78 notice issued on 14 October 2020 specifically denies the allegation made by the applicant of a cervical spine injury. The applicant reported the injury on 21 May 2019 as bilateral knees, neck and back pain due to the nature and conditions of the employment.
Dr Cameron IMC describes in his report of 23 December 2019 soft tissue injury to the applicant’s knee, and any back or neck pain is secondary to altered gait and will resolve once he has the appropriate treatment.
By the stage the s 78 notice is issued on 14 October 2020 the respondent is clearly on notice on its own evidence at the get-go of the complaint of cervical spine injury and on the IMC report as outlined in the s 78 notice, the respondent seems to be suggesting that it is accepted as a secondary on the knee condition and should resolve in time.
The respondent relies on Dr Powell’s opinion. Dr Powell has seen the applicant on a number of occasions.
In his first report of 24 August 2020 Dr Powell sets out a background history of the applicant’s work duties, in recent times he had been performing very similar duties picking and packing items weighing up to 20kg, with little rotation and he is aware of a gradual accumulation of lower back pain over a period of several weeks.
On 20 May 2019 the applicant was bending down to pick up a box and was aware of a click in the left knee. He continued working and over the next few days was aware of increased pain in the left side of the lower back spreading proximally to the left shoulder and base of the neck.
That is the history Dr Powell gets from the applicant, of left shoulder pain spreading to the neck and pain in the left knee. At that time the doctor confirmed he was told the main ongoing concern was the left knee and the lower back typically develops after periods of long standing.
What is not contained in the current symptoms is any reference to the cervical spine.
In the clinical reports of the general practitioners, it is plain the applicant is complaining of those symptoms.
Dr Powell has taken a background history including of neck pain but then omitted to include neck symptoms in the current symptoms, although that is being reported to the general practitioner.
In the diagnosis section Dr Powell does not refer to the cervical spine although that is not the history obtained and certainly not what is contained in the clinical records.
Dr Powell concludes the employment was a substantial contributing factor in the development of the left knee and back symptoms and takes into account the nature and conditions of employment, and he views the injuries as aggravation injuries.
Dr Powell believes it is reasonable to conclude that the employment represents a substantial contributing factor in the development of his left knee and lower back symptoms and this takes into account the nature and conditions of his employment as well as contribution from specific workplace incident on 20 May 2019.
On 28 September 2020 Dr Powell makes no mention of injury to the cervical spine but that is the very history he took. He did not formally examine the spine as this was not part of the symptoms complex described by the applicant although this is contained in the contemporaneous records.
On 30 June 2021 Dr Powell’s further report references a report of Dr Stephenson dated
1 February 2021 that does not appear in the material before the Commission, and then the doctor refers to the ITB release the subject of previous proceedings and refers to some chondromalacia patellae within the right knee which raises the question of a more generalised constitutional disease process.

There is a reference to Dr Stephenson in a question about cervical spine strain and other conditions. Dr Powell again says there is no evidence the applicant sustained injury to the cervical spine and symptoms do not support this injury, and he made no mention of these injuries. He says again in that report that at the time of his assessment of the applicant in 2019 there was no evidence that he had sustained any injury to the cervical spine in the course of this employment.
The doctor says it is possible the disease process affecting the neck, back and both knees is the same disease process, it is possible it is part of a more generalised primary degenerative disease processes although at that point he could not actually determine if that exists.
The further report of Dr Powell dated 21 April 2023 again includes a similar background history taken of the left knee, lower back and cervical spine symptoms, the clinical progress following the left knee ITB surgery, that the applicant had been on light duties before going off work prior to the left knee surgery and returned to work in February 2022.
The applicant had only lasted eight weeks on light duties. His role involved standing and scanning the bar codes of automotive spare parts and he has not returned to work since that time.
Dr Powell notes that in addition to persisting left knee, lower back and cervical spine symptoms the applicant also complained of the insidious onset of right shoulder symptoms. He says there was no specific precipitating event but again that seems to ignore the history that has been reported to everyone else, specifically the repetitive scanning type work performed by the applicant at that time.
The current symptoms are noted as being in the left knee, lumbar spine, cervical spine and right shoulder.
The diagnoses include non-specific lower back pain, left knee chondral damage, non-specific cervical spine symptoms, right shoulder partial thickness tear with bilateral generalised restriction.
There is no history of pre-existing or non-work related factors contributing to the current cervical spine, lumbar spine or left knee issues. There is no evidence of overreaction or exaggeration by the applicant.
Dr Powell notes Dr Herald’s opinion and that he has provided diagnoses in respect of each of the body parts. Based on today’s presentation Dr Powell agrees in general terms with the diagnoses provided and suspects there is also evidence of some underlying rotator cuff pathology.
The doctor says although the shoulder is not related, it is reasonable to conclude employment did result in an aggravation of pre-existing degenerative pathology involving the left knee and lower back.
Dr Powell agrees that the applicant complains of some right shoulder and neck symptoms although there is not sufficient evidence to conclude these were the result of any injuries sustained in the course of employment, including light duties in February 2022 which were not sufficient to have resulted in any significant structural pathology in the shoulders or neck.
Dr Powell does not engage in that process or explain at any point what those duties were or how it is they could not result in the aggravating of the underlying process with evidence to provide a reason. The opinion is not provided in a fair climate.
Dr Powell’s report of 7 March 2025 again includes a history of the left knee, lumbar spine and cervical spine symptoms that developed in an insidious fashion without any specific precipitating event, and there has been no specialist review.
That is not the history the doctor took at the beginning of the process and that is not consistent with the treating evidence.
This also the case with the right shoulder. The symptoms Dr Powell says developed in an insidious fashion without any precipitating event. The applicant was reviewed by Dr Lim and the MRI of the right shoulder on 16 May 2022 identified the partial thickness tear. Dr Chien recommended conservative treatment and there has been no further specialist review or incidents, injuries, investigation or treatment since the previous assessment.
Current symptoms again are constant aching pain in the left side of the cervical spine, bilateral shoulder symptoms, lumbar spine no significant change with constant aching and left knee persisting pain.
Dr Powell again accepts the injuries involving the left knee and lower back reflect the nature and conditions of employment and the specific incident on 20 May 2019.
The diagnoses made by Dr Powell are of the lower back and left knee conditions and non-work related non-specific cervical spine symptoms and bilateral shoulder symptoms that he thinks reflect some underlying rotator cuff pathology.
The doctor confirms there were no prior injuries to those body parts.
Dr Powell’s evidence is effectively premised on two main factors, the first being that there was no evidence of a cervical spine condition at any point which should be put to one side, and secondly that there is no explanation for the onset of the bilateral shoulder condition and the doctor simply says there is not sufficient evidence to explain it.
Dr Cameron notes on 23 December 2019 the applicant gave a history of knee and later back and neck problems after his left knee injury and returning to work on suitable duties.
Dr Cameron diagnoses soft tissue injury to the knee which the applicant described as fairly innocuous. Any back or neck pain is secondary to altered gait and will resolve once he has the appropriate treatment. This opinion seems to support the proposition in December 2019 that there is a neck condition related to the incident.
Dr Cadden on 16 February 2023 takes a history including that after the surgery the applicant returned to work. This involved regular bending and extension of the arms and he performed this role for about three or four weeks noticing increased pain to the right shoulder and due to increasing discomfort he was reviewed by a shoulder surgeon for investigations. He eventually stopped work in July 2022.
The applicant’s current status was constant pain to the right shoulder especially when trying to sleep, pain in both shoulders with sleeping, and there was an abnormal examination of the bilateral shoulder and cervical spine. On return to work the applicant developed pain in the right shoulder related to the twisting and scanning with a subsequent development of pain in the left shoulder.
Dr Cadden refers to the MRI scan of the cervical spine and right shoulder, changes in the C3/4 and C5/6 levels and compression of the C4, and rotator cuff changes in the right shoulder. The symptoms in the cervical spine seem to occur when he has returned to work doing a different activity which required more twisting and holding of the scanner in the right hand.
Dr Cadden attributes the mechanism of injury to the repetitive use of a scanner with the right hand and twisting motion. The right shoulder ongoing symptoms would be work related when he returned to work.
Dr Cadden provides a further opinion on 15 May 2023 and seems to say on this occasion there is significant degenerative processes in the cervical spine with some compression. The doctor considered it was the cervical spine giving rise to the symptoms rather than the shoulder.
The difficulty with that is the doctor has not been provided with any additional material and there is certainly no radiology to explain such a drastic change of opinion, other than being presented with a question that specifically asks him to consider whether it is the neck or the shoulder causing symptoms, despite having already provided an opinion.
The applicant’s position is that great caution should be exercised in dealing with that particular report.
Dr Khong, neurosurgeon, reported on 14 March 2024 that he had seen the applicant on three occasions and gives a background history consistent with the material in the clinical notes. The applicant returned to light duties in February 2022, complained of left knee, lower back pain, and neck and right shoulder pain, and he stopped working in April 2022 complaining of neck pain.
The doctor’s opinion is that the employment was the main contributing factor to the applicant’s neck pain doing repetitive lifting and twisting. This was aggravated by his return to work. He developed worsening bilateral shoulder pain after returning to work.
There are other reports from Dr Khong including on 30 September 2022 and
17 February 2023 which are each consistent with his final report.
Dr Chien’s report on 28 July 2022 contains the history of repetitive loading and unloading of heavy equipment and parts. . Right shoulder pain was noticed around 29 March 2022 and his work in the auto industry for 20 years would have started to cause injury to the right rotator cuff.
That view is consistent with Dr Herald in his report of 24 August 2022. The background history outlined is also consistent with the clinical material.
Dr Herald describes the applicant returning to work in February 2022 and standing all day, scanning bar codes and moving boxes with pain in his neck and right shoulder. He had been doing the job for about six to seven weeks when he went to see Dr Chien. After a scan
Dr Chien said the results showed a partial thickness tear and suggested a cortisone injection.
The applicant continued to have neck pain and back pain, left knee pain and right shoulder pain. The assessment of body parts includes that the employment was a substantial contributing factor and there is no other potential cause in any event.
In Dr Herald’s further report of 25 September 2024 again there is a finding of pathology and restriction in the bilateral shoulders and the cervical spine and that the employment, in particular the incident on 20 May 2019, is a substantial contributing factor and the main contributing factor for the progression of his condition.
There is very clearly an aggravation of existing disease due to the nature of the work, confirmed on the respondent’s evidence and consistent with the treating material. There are no doubt underlying pathologies and there is a disagreement as to the symptoms. Dr Powell says they are not work-related but for the reasons explained not much notice should be taken of that opinion.

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.
There are a number of dates of injury including 20 May 2019, and it is not correct that it is the date of claim. Where there has been incapacity following an injury it is the date of incapacity rather than the date the claim is eventually made.
The claim form was completed on 21 May 2019, the day after the injury. There is no mention of the neck and shoulders. The tasks the applicant was doing were ‘pushing trolley, picking and binning parts’, he injured his right knee, left knee, right hip and lower back, and he had a previous right knee injury in 2010, not the subject of these proceedings.
When asked what issues would prevent or delay him from returning to work he says bilateral knee pain, right hip pain and lower back pain, nothing to do with the shoulder or neck.
The applicant saw Dr Lim on 21 May 2019 for injuries to his back, knee and neck. When Dr Lim provides a diagnosis there is nothing to do with the shoulders. He concludes on 21 May 2019 that the applicant has suffered a back, knee, neck injury with a diagnosis of cervical strain, lumbar spine radiculopathy, and right knee injury.
Dr Lim assumes all the symptoms arise out of the same nature and conditions but it is not clear precisely what the mechanism of injury in respect of the cervical spine condition is.
The respondent emphasised the following notes in the clinical records of the Workers Doctors;
(a)    Mr Ryan Heuston, physiotherapist, who also saw the applicant on 21 May 2019, notes the previous right knee injury and that symptoms have been aggravated recently due to workplace changes with less variety of duties now. There is reduced balance on the right with a slight increase in knee pain, full depth squat with knee pain, and mild pain with knee flexion on the right side. Only the right knee is referred to and this is the same day as the applicant sees Dr Lim and there is an expansion of symptomatology also not referred to by Dr Calvache-Rubio earlier that day;
(b)    on 27 May 2019 the physiotherapist notes ongoing symptoms over the neck, low back and bilateral knees. It is not clear how those symptoms relate to what occurred on 20 May 2019 because the applicant did not record those symptoms in his claim form and he did not tell Dr Calvache-Rubio or Ryan Heuston about those symptoms on 21 May 2019;
(c)    Dr Joshua Lee sees the applicant on 17 June 2019 and records neck, back and bilateral knee injury due to repetitive heavy lifting, twisting and prolonged standing at work over years treated with simple analgesia and physiotherapy;
(d)    Dr Gavin Soo on 27 June 2019 notes the applicant says due to the right knee pain he favours the left leg and as a result he feels his left knee pain has worsened in the last three months, relating the problem to his right knee and not to the injury on 20 May 2019 in respect of the nature and conditions of his employment;
(e)    the physiotherapist continues to treat the applicant’s knees and not his neck. On 19 July 2019 Mr Heuston diagnoses right post-operative knee pain mostly like meniscal related, left knee PFPS and patellar tendinopathy and non-specific lower back pain, with no mention of the neck;
(f)    on 29 July 2019 the physiotherapist notes bilateral anterior knee pain, right worse is noted, aggravated by prolonged standing 20 to 30 minutes and similar pain on the left knee from overcompensation, the left knee again related to the right knee injury;
(g)    Dr Lim notes on 1 October 2019 the applicant had a cortisone injection and may need a knee replacement, and
(h)    on 28 May 2020 Dr Mo notes the applicant was reviewed by Dr Soo who on
6 April 2020 reports on the bone scan showing no intra articular pathology, there is no role for surgery and Dr Soo does not need to see the applicant again.
Dr Keeley carried out the left knee surgery and reports two weeks post-surgery on
3 November 2021 that the applicant is progressing reasonably well. The doctor notes on
23 May 2022 the applicant tried to return to work but stalled at six hours per day and the respondent advised he could no longer continue his return to work programme and he has not been working.
Dr Keeley is unclear about the cause of the applicant’s ongoing knee pain.
The injury to the right shoulder was on 29 March 2022. The applicant’s statement of
10 November 2022 refers to the fact he was told by the supervisor that there were no more suitable duties and he has not worked since that day.
The applicant was on reduced work hours and capacity after the injury in May 2019, most of the time working four to six hours on four days a week. He was driving the forklift and picking the cages and moving them for one and a half years until he was told he could no longer be on the forklift and so he had to move on to the floor.
There is then a completely new set of duties. He still had a weight limit of under 10kg and he was working four days and eight hours a day and he was trying to improve his hours all the time.
In February 2022 following his surgery he returned to work with another completely different set of nature and conditions of his employment causing problems with his shoulders. These are not the same duties as those he was performing in May 2019 when he first injured his knee.
The respondent’s submission is that the injury of May 2019 caused by the nature and conditions of his employment cannot be combined with an injury to either shoulder caused by the nature and conditions of his employment in February 2022 because they are completely separate.
In Findlay the evidence was that she developed a slow deterioration of problems in her back and neck in performing her work tasks over time and the aggravation of her cervical and lumbar spine injuries resulted from the same ‘incident’ under s 322(3) of the 1998 Act.
In that case the nature and conditions of the employment was the same for the neck and the back for the entire period, which is not the same situation as in this case where there are two injuries that cannot be combined.
It first has to be established that there is injury to a shoulder or shoulders under s 4 of the 1987 Act. The medical evidence the respondent submits does not go into much detail as to how the injuries were caused.
Dr Chien on 9 June 2022 comments that the applicant noticed right shoulder pain while using his right arm to scan barcodes, and this recent repetitive work was a substantial cause of his symptoms. The 20 years he was working in the auto industry may have also caused an injury prior to 29 March 2022 but the doctor would have expected a larger tear in that case. The MRI only showed a very small tear.
Dr Herald notes the history including injury to the left knee and lower back and to a lesser degree the neck and left shoulder, although the claim form and physiotherapist records do not mention the neck or shoulder at the time.
Dr Herald does not refer specifically to what happened in the injury of 20 May 2019 and subsequently to the work the applicant does and the emergence of the right shoulder problems which was diagnosed on MRI scan.
In his next report Dr Herald says the applicant’s job is a substantial contributing factor to the neck, back, both shoulders and left knee injury without going into any detail or giving any reasons for coming to that conclusion. In particular he has not differentiated between the work he did in 2019 and the work he did in 2022.
Dr Herald does say he twisted to the left and his left knee gave way, he stumbled and sustained a left knee and lower back injury and to a lesser degree to his neck and left shoulder, but he does not differentiate between the nature and conditions of his work.
It is not clear why Dr Herald comes to the conclusion the applicant has bilateral shoulder impingement syndrome when at the time the applicant is using the scanner in his right hand.
Dr Herald is asked if the applicant’s occupation as a storeperson for the respondent which involved repetitive lifting and scanning was the main contributing factor to the deterioration of his injuries however the applicant only did that work from February 2022. This was not the work he was doing earlier.
The doctor responds with yes, in fact his employment in particular the workplace injury he was involved in on 20 May 2019 and over the next few years have resulted in the workplace injuries he describes. In regards to his neck and both shoulders the repetitive lifting and scanning at work are the main contributing factor to his injuries and the progression of his condition.
There needs to be some explanation as to why the applicant’s condition is deteriorating after the applicant finishes work and that does not come through in Dr Herald’s report.
Dr Khong takes the history of the applicant returning to light duties in February 2022 and he could not stand long due to left knee pain, lower back pain, bilateral neck pain and right shoulder pain. He notes the applicant initially sustained a workplace injury in 2019 doing repetitive lifting and twisting.
Dr Soo could not explain the applicant’s knee pain following surgery in 2021 but it was not associated with the work he was performing from February 2022.
Dr Khong says the shoulder pain developed as a direct result of his original workplace injury, worsened by returning to work, however the right shoulder did not feature in the original problems. There was mention of pain radiating from the cervical spine but not pain in the right shoulder itself. That only came on as of February 2022.
The respondent submits little weight should be given to Dr Khong’s opinion.
Dr Powell is of the opinion that the applicant has similar symptoms in his shoulders bilaterally and that is caused by the underlying constitutional condition. He is giving reasons as to why he says the right shoulder symptoms were not work related, because he has these symptoms bilaterally.

In his report of 21 April 2023 Dr Powell notes the applicant had returned to light duties after left knee surgery, working reduced hours that lasted eight weeks standing scanning barcodes. In addition to the left knee and lower back and cervical symptoms he complains of the insidious onset of right shoulder symptoms with no precipitating event.
Following the right shoulder MRI Dr Chien recommended conservative treatment.
Dr Powell refers to symptoms in the neck and right shoulder but not the left shoulder. On examination he reports generalised shoulder restriction bilaterally, suggesting he is suffering from a pre-existing constitutional or degenerative disease process that involves both shoulders.
Dr Powell reviews Dr Herald’s report and in general terms agrees with his diagnoses although in relation to the left shoulder he suspects there is underlying degenerative disease.
Regarding causation Dr Powell says it is reasonable to conclude the employment did result in aggravation of pre-existing degenerative pathology involving the left knee and lower back but it was relatively minor and would have resolved by now.
With respect to the right shoulder he does not believe there is a common sense causal or consequential connection between the minor workplace incident in May 2019 involving the left knee and lower back and the subsequent development of right shoulder symptoms.
The later development of pathology in the right shoulder likely represents part of a degenerative disease process. Although his symptoms are primarily right sided, clinically he has a similar presentation involving the left shoulder.
Dr Herald does not say why he concludes employment is a substantial contributing factor to the right shoulder particularly where there is a degenerative condition and age-related changes.
Dr Herald’s report ought not to be given the same weight as the opinion of Dr Powell as there is an absence of reasons for coming to the conclusion he does.
Dr Powell’s opinion is largely the same in his most recent report. By early 2025 the left shoulder has been progressing and is now worse than the right side, and the applicant has not worked since April 2022. The left shoulder symptoms are progressing much faster than the right shoulder and there is no reason provided by any doctor other than Dr Powell who says it is the constitutional underlying condition. He accepts the left knee and back but there is insufficient evidence to conclude there is injury to the cervical spine or bilateral shoulders as a result of the employment. Dr Powell again disagrees with Dr Herald’s opinion.
The respondent notes Dr Cadden was a second qualified independent orthopaedic surgeon and there was no objection made. The respondent’s view is that it cannot have that report as it does not meet an exception that would allow it to be admitted.
The respondent sought to withdraw Dr Cadden’s report however as a precaution submits that Dr Cadden noted bilateral limitation to shoulder elevation and not just on the right, confirming Dr Powell’s opinion. In his view the current symptoms would be related to the cervical spine and not the shoulder. He also notes there were no reported symptoms from the 2019 injury to the cervical spine.
The symptoms occurred when the applicant returned to work when there was more twisting and he could not conclude there is a causal connection between the 2019 incident and the right shoulder injury. The left shoulder symptoms can be linked to the cervical spine changes.
The respondent’s submission is that the applicant has not demonstrated on the claim form signed by him that he sustained an injury to his right shoulder at the same time as the injury in 2019.
There are separate certificates of capacity for the right shoulder which is specifically related to an injury on 29 March 2022 due to repetitive lifting and scanning at work. The certificates for the right shoulder are all in similar terms.
The injury on 29 March 2022 to the right shoulder is caused by very different nature and conditions. It is not the case as Dr Khong had suggested that the applicant’s light duties in that period aggravated every body part.
The conditions flowing from the 2019 injury cannot be combined with any injury that occurred from the nature and conditions of the applicant’s work in 2022.
The medical evidence does not support the shoulder conditions as related in any way to the nature of the applicant’s employment. The certificates of capacity for the 20 May 2019 injury do not include the left shoulder, nor do the certificates after 2022.
The two injuries cannot be aggregated

Applicant’s submission in reply

Dr Cadden’s report was obtained in respect of a different claim, noting the date of injury is different in Dr Cadden’s reports and Dr Powell’s reports.
The applicant referred to the determination of Member Moore in Viera v Wideform Pty Limited [2021] NSWPIC 250.

FINDINGS AND REASONS

The claim for injury on 25 January 2023 can be determined by the Commission

Under s 289(3)(a) of the 1998 Act a dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made wholly disputes liability for the claim.
The applicant made a claim for 21% whole person impairment on 25 January 2023 for deemed date of injury 20 May 2019 relying on Dr Herald’s report of 24 August 2022.
The respondent’s s 78 notice of 5 June 2023 disputes liability for the applicant’s cervical spine and shoulder conditions of 20 May 2019, and on the basis of Dr Powell’s assessment of 1% whole person impairment for the lumbar spine and left knee there was no entitlement to lump sum compensation.
No submissions were made by the parties at the hearing on this issue. I find in these circumstances the Commission has jurisdiction to determine the applicant’s claim for lump sum compensation.

The applicant has sustained injury to his cervical spine and right shoulder

The applicant bears the onus of proving injury.
Section 4 of the 1987 Act defines “injury” as follows:
“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...”
The issue of causation must be determined based on the facts in each case on a common sense evaluation of the causal chain.[2]
[2] Kooragang Cement Pty Ltd v Bates 10 NSWCCR 796.
The applicant relies on s 4(b)(ii) of the 1987 Act, with aggravation, acceleration, exacerbation or deterioration of the underlying pathology in his left knee, lower back, neck and both shoulders with the employment with the respondent the main contributing factor to the aggravation, acceleration, exacerbation or deterioration.
The employment needs to be the main contributing factor to the aggravation of the disease, and not the main contributing factor to the contraction of the disease itself.[3]
[3] Cant v Catholic Schools Office [2000] NSWCC 37.
What constitutes an aggravation of a disease process was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch; “[t]he question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient”.[4]
[4] [1964] HCA 34; 110 CLR 626.
The respondent accepts liability for the applicant’s left knee and lower back conditions and disputes liability for the cervical spine and shoulder conditions.
The applicant’s evidence is that his duties as a storeperson with the respondent picking and packing over 12 years involved repetitive lifting and twisting;
(a)    from January 2010 his job involved heavy lifting;
(b)    in November 2018 in the oil dispatch area he picked different oils using a flat-back trolley to handle the various five litre cans, placed orders in boxes of oils which come in sets of four with each box weighing approximately 20kg, scanned them and palletised them for dispatch;
(c)    if the order required a pallet he assembled pallets and then scanned the next one involving constant bending and lifting;
(d)    he was doing heavy lifting and when he lifted boxes he straightened and turned to the side to place them on a trolley;[5]
(e)    when he moved to the floor in May 2021 he still had a weight limit of under 10kg;[6]
(f)    he stood on a platform at waist height and lifted boxes placing them on the floor, involving constantly lifting and twisting;
(g)    he suffered a hernia injury in 2021 due to lifting and twisting while unloading large boxes of disc brakes;
(h)    from February 2022 he scanned small parts using a scanner which involved lifting the box, scanning it, placing it back on the box and moving to the next one, and
(i)    he moved trolleys for one week when he was told there were no more suitable duties.
[5] Reply page 71.
[6] Reply age 73.
The nature of the applicant’s work with the respondent is not disputed and his description is consistent with the histories taken by the treating medical practitioners and independent medical experts. I accept the applicant’s statement evidence on the nature of his duties.

There is evidence that the applicant suffers with cervical spine disease. The cervical spine MRI report of 2 August 2022 concludes there is moderate to severe narrowing at the right C3/4 level with likely compression to right C4 nerve root, as well as moderate to severe narrowing at the left C5/6 level with possible compression of the left C6 nerve root.
The weight of medical evidence also establishes that the applicant’s cervical spine disease has been aggravated in the course of his employment with the respondent, and that the employment was the main contributing factor to the aggravation.
Dr Herald supports this conclusion, as does Dr Lim.
While the claim form completed by the applicant on 21 May 2019 does not include the cervical spine, in his statements of 22 January 2021[7] and 10 November 2022[8] he describes pain in his neck from the lifting and twisting incident of 20 May 2019.
[7] Reply page 66.
[8] Reply page 72.
The general practitioner’s records from the day following the 20 May 2019 incident include that the applicant presented for injuries including to his neck due to repetitive heavy lifting, twisting and prolonged standing at work over years.[9]
[9] ARD page 182.
I do not accept as submitted by the respondent that the absence of a reference to a neck injury by Dr Calvache-Rubio on 21 May 2019, or by Mr Heuston, physiotherapist, who reviewed the applicant regarding his previous right knee injury that day, detracts from the other evidence available regarding the neck condition.
I accept the applicant’s submission that Dr Powell’s opinion regarding his cervical spine condition carries less weight, as he notes there was no history of any injury involving the cervical spine[10] and the applicant did not make any mention of injury to the cervical spine,[11] which is not consistent with the history he takes on 20 August 2020 of increased pain in the lower back at times spreading to the left shoulder and base of the neck,[12] or with the clinical records of the Workers Doctors.
[10] Reply page 30.
[11] Reply page 33.
[12] Reply page 26.
Dr Powell later comments that it is possible the nature and conditions of the applicant’s employment resulted in an aggravation of a pre-existing degenerative disease process in the cervical spine,[13] however in his opinion any aggravation would have been minor and temporary and settled long ago.[14] The applicant’s non-specific cervical spine symptoms are non-work related.[15]
[13] Reply page 37.
[14] Reply page 46.
[15] ALAD page 15.
Dr Powell has not in my view “had a fair climate upon which he based his decision”[16] as he does not consider the applicant’s complaint of neck symptoms from the time of the 2019 incident noted by him in August 2020 and recorded by treating general practitioners from
[16] Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at [509]-[510].
21 May 2019.
I am also unable to accept Dr Cadden’s opinion that there were no reported symptoms from the 2019 injury to the cervical spine[17] on the same basis.
[17] Reply page 92.
I note Dr Cadden’s report was obtained prior the claim made for lump sum compensation, apparently in relation to another claim or dispute, and it is admitted pursuant to cl 44(4)(c) of the Workers Compensation Regulation 2016 on that basis.
I find on the balance of probabilities the applicant has sustained an aggravation of his cervical spine disease for which the employment is the main contributing factor.
With respect to the right shoulder, there is medical evidence provided by Dr Herald,
Dr Khong, Dr Lim and Dr Chien that the applicant has right shoulder disease aggravated by his employment, and that the employment with the respondent was the main contributing factor to the aggravation. I accept that evidence.
Dr Chien found rotator cuff tear was suggested on examination, confirmed on the MRI which showed an acute partial tear of the supraspinatus, and which clinically correlated to the applicant’s symptoms and signs as well as the mechanism of injury.
Dr Chien takes a history of right shoulder pain at work from 2022 and opines that the applicant’s symptoms, diagnosis and incapacity are the result of his employment;
“Having worked in the auto industry for 20 years performing his duties would have started to cause injury to the rotator cuff and the altered duties he was performing would have precipitated his shoulder injury and symptoms. At the age of 55 years, he is too young to have a spontaneous rotator cuff tear to have occurred with normal day to day use outside of his employment.”[18]
[18] ARD page 29.
Dr Powell notes on 21 April 2023 the applicant complained of the insidious onset of right shoulder symptoms, supported by the MRI scan of 16 May 2022. This is a non-work related condition in Dr Powell’s opinion, and any aggravation of the right shoulder disease in the course of employment would have settled long ago.
Dr Powell found clinically that the applicant has similar findings in the shoulders. While this suggests he suffers from a pre-existing constitutional disease bilaterally, Dr Powell’s opinion is not supported by the medical evidence referred to above.
Dr Cadden’s opinion is that the applicant’s shoulder symptoms are related to the cervical spine. As there is no support for this view from other medical experts I do not accept it.
I prefer the opinions of the applicant’s treating medical practitioners who have treated and observed him over a long period of time, and of his independent medical experts.
I find on the balance of probabilities based on the weight of medical evidence that the applicant has sustained an aggravation of his right shoulder disease for which the employment is the main contributing factor.

The applicant has sustained a left shoulder injury

The applicant’s evidence is that he felt mild pain in his left shoulder on 20 May 2019, and the pain from his left knee and lower back radiated to his left shoulder over the next few days. This is consistent with the history recorded by Dr Herald.[19]
[19] ARD page 15.
The medical evidence supports a finding that the applicant has sustained an aggravation of left shoulder disease with the employment the main contributing factor to the aggravation.
While there is no radiological investigation of the left shoulder, it is not in dispute that the applicant suffers from left shoulder disease.
Dr Herald diagnoses left shoulder impingement syndrome as a result of the applicant’s employment with the respondent.[20]
[20] ARD pages 17 and 23.
In Dr Herald’s opinion repetitive lifting and scanning at work is the main contributing factor to injuries to the applicant’s neck and both shoulders, and the left shoulder seems to have progressively deteriorated like his right shoulder.[21]
[21] ARD page 24.
Dr Herald based his opinion on the history he took from the applicant about the nature of his work and his findings on examination and I accept his opinion.
Dr Khong refers to bilateral shoulder pain that developed as a direct result of the applicant’s original workplace injury, worsened by returning to work.[22]
[22] ARD page 26.
Dr Chien treats the right shoulder and makes no comment on the left shoulder.
Dr Cadden’s view is the left shoulder symptoms can be linked to changes in the cervical spine, however in the absence of medical expert evidence that supports that view I am unable to accept it.
Dr Powell notes clinically the applicant has similar findings in the shoulders, suggesting he is suffering from a pre-existing constitutional or degenerative disease process bilaterally.
His bilateral shoulder symptoms, more severe on the left, characterised clinically by restricted range of motion and most likely reflecting some underlying rotator cuff pathology, are non-work related in Dr Powell’s view.[23]
[23] ALAD page 15.
Dr Powell does not in my view adequately explain his conclusion that the nature of the work the applicant performed over a 12 year period has not aggravated the pre-existing degenerative disease process he identifies clinically in both shoulders. I accord Dr Powell’s opinion less weight on this issue as a result.
I prefer Dr Herald’s opinion that the nature of the applicant’s work has resulted in an aggravation of the applicant’s left shoulder disease, supported by Dr Khong’s opinion and the applicant’s statement evidence.
I am persuaded on the balance of probabilities the applicant has sustained an aggravation of left shoulder disease for which the employment is the main contributing factor.

The applicant’s injuries are able to be combined pursuant to s 322 of the 1998 Act

The applicant claims lump sum compensation in respect of 21% whole person impairment of his left knee, lumbar spine, cervical spine and both shoulders with deemed date of injury of 25 January 2023.
Subsection 322(3) of the 1998 Act states that impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
The applicant’s submission is that the applicant’s injuries are the result of a number of aggravations over time and result from the same injurious incident, namely the heavy repetitive duties performed in his employment with the respondent.
The evidence supports that the applicant developed a slow deterioration of problems in his left knee, lumbar spine, cervical spine and both shoulders in performing his work tasks over time, in addition to the specific incident on 20 May 2019. The aggravation of those injuries has resulted from the ‘same incident’ in accordance with s 322(3) of the 1998 Act, so that any resulting impairments should be assessed together.[24]
[24] Findlay, Viera v Wideform Pty Limited [2021] NSWPIC 250, State of New South Wales (Sydney Local Health District) v Edwards [2024] NSWPIC 83.
The medical evidence supporting this conclusion is persuasive.
Dr Herald’s opinion is the applicant’s job as a storeperson for the respondent is a substantial contributing factor to his injuries. His employment and in particular the workplace injury on
[25] ARD page 24.
20 May 2019 and his subsequent attempts to return to work with his injuries has resulted in injuries to his shoulders, left knee, lumbar spine and cervical spine. The repetitive lifting and scanning at work are the main contributing factors to his injuries and the progression of his disease in regard to his neck and both shoulders.[25]
Dr Khong records the work as involving heavy lifting, driving forklifts, loading and unloading containers and a lot of physical work. The applicant developed neck, back, and knee pain as a result of his original workplace injury whilst doing repetitive lifting and twisting, and his pain was further aggravated by his return to work.[26]
[26] ARD page 27.

Dr Chien refers to the applicant’s work involving repetitive loading and unloading of heavy equipment and parts.[27] Dr Lim refers to repetitive heavy lifting, twisting and prolonged standing at work over years.[28]
[27] ARD page 28.
[28] ARD page 38.
Dr Powell comments that it is possible the nature and conditions of the applicant’s employment aggravated his pre-existing cervical spine and left knee disease processes, although in his opinion the aggravation would have resolved.[29]
[29] Reply page 37.
Dr Powell also refers to the nature and conditions of the employment as well as the contribution from the incident on 20 May 2019 with respect to the left knee and lumbar spine symptoms.[30] The right shoulder symptoms developed in an insidious fashion without any precipitating event.[31]
[30] ALAD page 14.
[31] ALAD page 11.
An event clearly occurred in May 2019 resulting in injuries to the applicant’s left knee, lumbar spine, cervical spine and the applicant complained of pain and stiffness radiating to both shoulders. On his return to work on restricted duties in February 2022 he experienced increasing symptoms including in his right shoulder.
While the applicant’s right shoulder symptoms increased as a result of his employment activities in early 2022, as the applicant submits there are contemporaneous records of prior right shoulder symptoms, including those of Dr Calvache-Rubio and Dr Soo, in 2019 and 2020.
The respondent’s submission that the nature of the applicant’s tasks in February 2022 were not the same as his earlier tasks has some force. The employment activities which caused each injury require examination.[32]
[32] Ghilagabar v Kmart Australia Pty Ltd [2022] NSWPIC 25 at [97].
In this case however I am of the view that any change in the nature of the applicant’s activities in early 2022 do not result in a separate or distinct mechanism of injury.
The activities that caused the applicant’s injuries prior to 2022 are described as lifting and twisting. His activities in 2022 involved lifting with weight restrictions. Although the applicant does not describe twisting Dr Cadden for example refers to twisting.
I am persuaded on balance that the nature of the applicant’s employment with the respondent between 2010 and 2022 represents the same incident for the purposes of s 322 of the 1998 Act.

Date of injury

The applicant’s injuries are aggravation of disease injuries pursuant to s 4(b)(ii)) of the 1987 Act. Section 16(1)(a) of the 1987 Act deems the date of injury as having happened at the time of incapacity, or if incapacity has not resulted from the injury, at the time the claim for compensation is made.
The applicant contends the date of injury is 25 January 2023, the date the claim was made, and the respondent contends that as there has been incapacity following the injury it is the date of the incapacity.
In SAS Trustee Corporation v O’Keefe[33] the Court of Appeal considered the cases established that where the claim is made for lump sum compensation any earlier claim for weekly compensation is irrelevant and the permanent impairment injury is deemed to have happened when the lump sum claim is made.
[33] [2011] NSWCA 326 at [101] (O’Keefe).
Griffiths AJA in Haddad v The GEO Group Australia Pty Ltd[34] considered some aspects of the reasoning in O’Keefe overstate the correct position; where there is a claim for lump sum compensation any earlier claim for weekly compensation may be relevant depending on the facts.[35]
[34] [2024] NSWCA 135 (Haddad).
[35] [2024] NSWCA 135 at [118].
I accept the respondent’s submission that incapacity arose from the injury for which lump sum compensation is claimed, however no submissions were made on the relevant date of incapacity.
Incapacity as a result of the injuries to the left knee, lower back, cervical spine and both shoulders caused by the nature of the work performed by the applicant appears to have commenced on 1 April 2022 when suitable duties were withdrawn and he ceased work.[36]
[36] ARD page 47, 112, Reply page 75, Ellis v Dontarna Pty Ltd [2024] NSWPIC 513 at [22].
I find the deemed date of injury in this case to be 1 April 2022.

The applicant’s entitlement to medical expenses

As I have found the applicant has sustained the injuries referred to above, a general order will be made for payment of reasonably necessary medical or related expenses arising from the injuries.

SUMMARY

The Commission is able to determine the claim made by the applicant for lump sum compensation on 25 January 2023 pursuant to s 289(3) of the 1998 Act.
The applicant has sustained injuries to his cervical spine and both shoulders pursuant to s 4(b)(ii) of the 1987 Act.
The injuries to the applicant’s left knee, lumbar spine, cervical spine and both shoulders arise from the same incident and are to be assessed together for permanent impairment pursuant to s 322(3) of the 1998 Act.
This matter is to be remitted to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment of the above injuries with deemed date of injury
1 April 2022.
The applicant is entitled to payment of reasonably necessary medical or related expenses as a result of the injuries pursuant to s 60 of the 1987 Act.

[2025] NSWPIC 148

11 April 2025