Clark v Secretary, Department of Communities and Justice

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Clark v Secretary, Department of Communities and Justice [2022] NSWPIC 258
APPLICANT:	Darren Clark
RESPONDENT:	Secretary, Department of Communities and Justice
MEMBER:	Karen Garner
DATE OF DECISION:	30 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation for permanent impairment pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act); applicant had accepted injury to left shoulder and right shoulder; whether the applicant sustained injury to his neck and back pursuant to sections 4(a) and 4(b)(ii) of the 1987 Act; Held– applicant sustained injury to his lumbar spine arising out of his employment pursuant to section 4(a) of the 1987 Act; applicant sustained injury to his lumbar spine and cervical spine arising out of his employment pursuant to section 4(b)(ii) of the 1987; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment in relation to the applicant’s cervical spine, lumbar spine and left and right upper extremities (shoulders).
DETERMINATIONS MADE:	1. The applicant sustained injury to his lumbar spine arising out of his employment with the respondent pursuant to s 4(a) of the Workers Compensation Act 1987 and his employment was a substantial contributing factor pursuant to s 9A(1) of the Workers Compensation Act 1987. 2. The applicant sustained injury to his lumbar spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. 3. The applicant sustained injury to his cervical spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. 4. The matter is remitted to the President to be referred to a Medical Assessor for an assessment of whole person impairment of the lumbar spine, cervical spine, left upper extremity (shoulder) and right upper extremity (shoulder) resulting from injury deemed to have occurred on 13 May 2017.
ORDERS MADE:	5. The matter is remitted to the President to be referred to a Medical Assessor for assessment as follows: Date of injury: 13 May 2017 Body parts: Cervical spine Lumbar spine Left upper extremity (shoulder) Right upper extremity (shoulder) Method: Whole Person Impairment 6. The materials to be referred to the Medical Assessor are to include: (a) the Application to Resolve a Dispute and all attachments including the amended index of the attachments lodged by the applicant on 5 April 2022 and the further amended index of the attachments lodged by the applicant on 20 April 2022, and (b) the Reply and all attachments. 7. The matter to be placed on the Medical Assessment Pending List.

STATEMENT OF REASONS

BACKGROUND

Darren Clark (the applicant) is 57 years old and was employed by the Secretary, Department of Communities & Justice (the respondent) as a Senior Correctional Officer.
The applicant alleges that while working on 13 May 2017, he sustained injury to his neck, back, left shoulder and right shoulder when he was forcibly restraining and moving a female inmate who was lashing out and he was physically assaulted by the female inmate. In the alternative, the applicant alleges that the physical assault caused an exacerbation of
pre-existing degenerative changes to his neck and back. The applicant alleges that such exacerbation was further aggravated by the work station that he was required to sit at upon his return to work on light duties.
On 13 May 2017, an Incident/Injury Report Form recorded that the applicant sustained injury to his shoulder caused by physical assault when responding to an incident involving an inmate.
By letter dated 13 July 2020, the respondent stated that it intended to retire the applicant on medical grounds because had been absent from his substantive position since 14 May 2017 due to the injury and the applicant had ongoing incapacity for work.
The insurer accepted injury to the applicant’s left and right upper extremities.
On 14 January 2020 the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant was entitled to compensation for medical or related treatment in relation to injury to his cervical spine and lumbar spine because the medical or related treatment was not reasonably necessary as a result of an injury as required by ss 59 and 60 Workers Compensation Act 1987 (the 1987 Act). The insurer relied on a report of Dr Richard Powell which stated that he did not believe there was sufficient evidence to conclude that the applicant’s employment represents the main contributing factor in the development or aggravation of the degenerative disease processes involving the cervical and lumbar spine and there is no evidence that the applicant sustained an acute injury in those areas in the course of his employment.
On 9 August 2021, the applicant’s solicitor made a claim on the respondent’s insurer for permanent impairment compensation pursuant to s 66 of the 1987 Act for 27% whole person impairment being $70,450 and an uplift of 5% for injuries sustained to the applicant’s cervical and lumbar spine, totalling $73,972.50. The applicant’s solicitor attached a report of Dr Giblin dated 19 July 2021 which included an assessment of 7% whole person impairment in respect of the right upper extremity (shoulder), 11% whole person impairment in respect of the left upper extremity (shoulder), 5% whole person impairment in respect of the cervical spine, 5% whole person impairment with respect to the lumbar spine and 2% whole person impairment in respect of activities of daily living, giving a total of 27% whole person impairment.
On 20 August 2021, the respondent’s solicitor requested further and better particulars of the claim.
On 24 August 2021, the applicant’s solicitor provided further and better particulars of the claim.
On 16 February 2022, the respondent’s solicitor, on the basis of a report of
Dr Richard Powell which provided an assessment of a combined 20% whole person impairment relating to the left upper extremity and the right upper extremity, put an offer of $49,590 on the basis that there was to be an award to the respondent relating to claims for the lumbar and cervical spine.
By Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 14 March 2022, the applicant claims lump sum permanent impairment compensation (permanent impairment compensation) pursuant to s 66 of the 1987 Act for 27% whole person impairment totalling $73,972.50 in respect of the applicant’s right upper extremity (shoulder), left upper extremity (shoulder), cervical spine and lumbar spine. The Application stated that while working on 13 May 2017, the applicant sustained injury to his neck, back, left shoulder and right shoulder when he was forcibly restraining and moving a female inmate and he was physically assaulted by the female inmate. In the alternative, the applicant alleges that the physical assault caused an exacerbation of
pre-existing degenerative changes to his neck and back. The applicant alleges that such exacerbation was further aggravated by the work station that he was required to sit at upon his return to work on light duties. The Application stated that the insurer accepts injury to the left and right upper extremities.

ISSUES FOR DETERMINATION

The respondent accepts injury to the applicant’s left upper extremity (shoulder) and right upper extremity (shoulder).
The parties agree that the following issues remain in dispute in relation to the applicant’s claim for permanent impairment compensation pursuant to s 66(1) of the 1987 Act:
(a) whether the applicant sustained a back injury and a neck injury – ss 4(a) and 4(b)(ii) of the 1987 Act;
(b) whether the applicant’s employment was a substantial and/or the main contributing factor to his injury – ss 9A and/or 4(b)(ii) of the 1987 Act, and
(c) the degree of permanent impairment resulting from the injury.

PROCEDURE BEFORE THE COMMISSION

At a hearing on 27 April 2022, the applicant was represented by Mr Bill Nicholson, counsel, instructed by Mr Anthony McDonnell of McDonnell Schroder Lawyers. The respondent was represented by Mr Paul Barnes, counsel, instructed by Mr Darran Russell of Rankin Ellison Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application with attached documents, and
(b) Reply with attached documents.
In accordance with the instructions of the Commission, the applicant lodged an amended index to the attachments to the Application on 5 April 2022 and a further amended index (the further amended index) to the attachments to the Application on 20 April 2022.

Oral Evidence

No party applied to adduce oral evidence or cross-examine any witness.

Applicant’s statement

The applicant provided a statement in writing.
The applicant stated that he commenced working with the respondent as a corrections officer in 1988. The applicant stated that during his employment prior to 13 May 2017, he suffered employment related injuries to his left wrist over 15 years ago and to his left ankle in around 2013-2014. He recalls that he had episodes of back pain in 2016 and he attended his general practitioner regarding back pain prior to 13 May 2017. It is possible that the applicant had right shoulder problems prior to 13 May 2017 but he can’t recall. He had no serious neck pain prior to 13 May 2017.
The applicant stated that on 13 May 2017, he was working at a correctional centre in the gate area. When he heard yelling and screaming coming from the visitor’s area he went to the visitor’s area and saw staff holding and carrying a female inmate towards the gate area. The applicant saw a small female correctional officer holding one of the female inmate’s legs and two male correctional officers were carrying the inmate by the arms. The inmate’s unrestrained leg was kicking out. The applicant took over from the female correctional officer and secured both of the inmate’s legs. The applicant and the two male correctional officers moved the inmate to the segregation area. During that process, the inmate was not cooperating and was thrashing and trying to break free.
The applicant stated that he and the two male correctional officers put the inmate face down on a bed with her head to the wall. They then restrained the inmate by holding her by the shoulder and arm. The inmate’s legs were unrestrained. When the inmate promised to calm down, the applicant and the two male correctional officers slightly let the inmate up. However, the inmate immediately became aggressive and assaulted them and they had to restrain her again.
The applicant stated that he and one other correctional officer again tried to calm the inmate and she promised to remain calm. The other correctional officer moved to stand in the doorway. The applicant slowly released the inmate. She stayed on the bed and the applicant moved to the doorway with his back towards her.
The applicant stated that he suddenly felt a very heavy impact to the right side of his lower back and his neck was whiplashed. He moved to the door, locked the inmate in her cell and returned to work.
The applicant stated that Dr Powell’s report dated 25 January 2019 does not record an accurate history of the incident. The applicant stated that, during the incident for about 4 to 5 minutes, he was subjected to aggressive thrashing by the inmate who was quite large and aggressive. The applicant stated that, while he was in awkward positions, his whole body was subjected to quite large amounts of force including his neck, back and shoulders.
The applicant stated that the following day he felt pain in his left shoulder and he attended his general practitioner. The applicant has been unable to return to his duties apart from a couple of months in 2018.
The applicant stated that his left shoulder continued to deteriorate. He underwent three surgical procedures to his left shoulder performed by Dr Khatib and Dr Gupta on 3 July 2017, 18 December 2017 and on 15 September 2018.
The applicant stated that he noticed pain and tenderness in his right shoulder following the third operation. The applicant stated that, because of the injury, operations and immobility of his left shoulder for extended periods, he had to overuse his right shoulder.
The applicant stated that approximately 14 months after the incident on 13 May 2017, following the second operation, he noticed pain in his lower back and neck. The pain increased from the time that he returned to desk-work after the second operation. The lower back pain was worse than the neck pain. The applicant believes his neck pain was aggravated by an unsuitable computer monitor and him having to bend his neck in order to see the computer monitor. The applicant believes his back pain was aggravated by an unsuitable chair which gave little back support and had a backrest which could not be adjusted.
The applicant stated that he told his general practitioner about his back and neck pain and the awkward bodily positions at his desk workstation. The applicant’s general practitioner referred him for an MRI scan of his shoulder and told him that he may require surgery at a later date but should otherwise continue with conservative management.
The applicant stated that after the third operation on 15 September 2018, he gradually needed less medication for his shoulder. The applicant believed that the shoulder pain medication had masked his back and neck pain. His back and neck pain continued with his back pain worse than his neck pain.
The applicant stated that his left shoulder has dropped and pulls on the left side of his neck. It is a permanent tightness. He initially thought his neck pain was referred pain from the left shoulder but his doctors have told him it was a combination of the assault, his shoulders and work station.
The insurer has paid for physiotherapy for his neck in 2019 and cortico-steroid injection to his neck in 2020.

Incident/Injury Reports

An Incident/Injury Report Form dated 13 May 2017 recorded that the applicant sustained injury to his shoulder caused by physical assault when responding to an incident involving an inmate. It stated the description of the injury as,
“Force used on an inmate after a visit, inmate had to be forcibly moved and kicked and punched at staff. I held the inmate by the legs while being moved. After placing the inmate in a secure cell she then attacked me from behind.”
An Incident Details Form dated 19 June 2019 recorded that an incident occurred at the correctional centre on 13 May 2017 which involved violence, assault of staff and use of force. It stated:
“Staff responded to screaming coming from the visiting section... [The inmate] had entered the search room and picked up a plastic chair and threw it against the wall, kicked the wall and smashed the window in the room. Responding staff entered the room and attempted to restrained [the inmate]. The inmate continued to struggle. [The inmate] was then restrained, picked up and carried and secured in the OBS cell. Whilst staff where [sic] exiting the cell, [the inmate] push/punched SCO Clark in the lower back area.
NSW Police contacted re the assault of staff. General Manager contacted and inmate placed on Segregated Direction...
No video recording of the area. Spontaneous incident.
...
... Officers used force to ... an inmate from visits who was screaming and throwing chair and kicking. When officers were securing the inmate in OBS cell, inmate punched SCO Clark in the back. Inmate placed on segregation... .”

Letter from respondent to applicant

By letter dated 13 July 2020, the respondent stated that it intended to retire the applicant on medical grounds because had been absent from his substantive position since 14 May 2017 due to the injury and the applicant had ongoing incapacity for work.

Letter of claim and offer

By letter dated 9 August 2021, the applicant’s solicitor served notice of a claim on the respondent’s insurer for permanent impairment compensation pursuant to s 66 of the
1987 Act for 27% whole person impairment being $70,450 and an uplift of 5% for injuries sustained to the applicant’s cervical and lumbar spine, totalling $73,972.50. The letter attached a report of Dr Peter Giblin dated 19 July 2021.
By letter dated 20 August 2021, the respondent’s solicitor requested further and better particulars of the claim.
By letter dated 24 August 2021, the applicant’s solicitor provided further and better particulars of the claim.
By letter dated 16 February 2022, the respondent’s solicitor, on the basis of a report of
Dr Richard Powell which provided an assessment of a combined 20% whole person impairment relating to the left upper extremity and the right upper extremity, put an offer of $49,590 on the basis that there was to be an award to the respondent relating to claims for the lumbar and cervical spine. The letter attached a report of Dr Richard Powell.

Ergonomic Assessment Report

An Ergonomic Assessment Report dated 8 August 2018 assessed the applicant’s workstation and work environment following his shoulder rotator cuff surgery in June 2017 and AC joint surgery in December 2017. It stated that the applicant’s desk chair offered little lumbar support and that the top portion of the backrest was too reclined back, and could not be adjusted so as to encourage neutral spinal postures. It stated that the height of the applicant’s computer monitor was too low, resulting in increased forward flexion of the applicant’s neck, which pertained to increased thoracic kyphosis and protracted shoulders. It noted that adjustments could not be made to the applicant’s computer monitor. The report recommended that the applicant be given: a new chair which provided appropriate back rest support and reclining position and was a suitable height and depth; a sit/stand desk so that he could take standing breaks, and his computer monitor raised with appropriate mouse and keyboard positioning, to allow for neutral spinal/ neck postures.

Treating medical evidence

Dr Yasser Khatib, orthopaedic surgeon

In a report dated 20 June 2017, Dr Khatib noted that he examined the applicant and reviewed an MRI scan. Dr Khatib recorded that the applicant reported injuring his left shoulder on 13 May 2017 in an altercation where he had to restrain a violent inmate and that the applicant had been been off duties since the date of injury. The applicant reported increasing pain in his left shoulder and some right shoulder symptoms. Dr Khatib diagnosed a left shoulder intra substance tear of the left subscapularis. He noted that the applicant would need surgical intervention for repair of the rotator cuff tear.
In subsequent reports, Dr Khatib reported that on 3 July 2017 he performed left shoulder arthroscopy, biceps tenotomy, acromioplasty, bursectomy and rotator cuff repair.

Dr Bisham Singh, orthopaedic and spine surgeon

In a report dated 28 June 2019, Dr Singh stated that the applicant:
“has neck and lower back pain following a work related injury two years ago. In his job as a Correctional Officer, he had to intervene in a fight and was assaulted. Initially he was thought to have a rotator cuff injury, however this has been treated in 2017 with reconstructive surgery.
His shoulders continue to be stiff and painful however his main problem now is lower back pain with radiation to the right back of the thing going up to the knee as well as mid lumbar pain and pain in the base of the neck and the interscapular area. Imaging and clinical examination do suggest that the pain in the base of the neck is likely arising from the disc bulging and foraminal stenosis at C7-T1.
He also has an acute disc injury at L1-2 which is likely responsible for his mid lumbar pain. He has disc bulging and signal changes at the penultimate motion segment of the lumbar spine and this is likely responsible for his symptoms of lower back pain radiating to the right leg.
...
[The applicant] has a disc injury at L4-5 giving rise to back and right leg sciatica. He also has a disc injury at L1-2. His neck pain is secondary to C7-T1 disc bulging. His diagnosis is consistent with his presenting complaints, symptoms and are more likely than not related to the injury reported to me.”

Dr Singh stated that the applicant “had no symptoms prior to the injury, and I do not believe that this injury has caused an aggravation of a pre-existing condition. His scans do reveal spondylolysis at S1, however this motion segment is asymptomatic”.
Dr Singh stated that he believed that the applicant’s employment as a correctional officer is a substantial contributing factor to the injury. He stated that the described mechanism of injury by “the restraint and subsequent assault” is commensurate with the applicant’s presenting pathology. Dr Singh said that he was unaware of any non-work related factors affecting the applicant’s current pathology.
Dr Singh noted that the applicant originally sustained an injury to the left shoulder. He stated that:
“While it is true that symptoms from shoulder injury and neck injury frequently overlap, it is more likely than not that his shoulder injury, being acute, masked his symptoms of the injury sustained to the rest of the spine. The spine injury has subsequently evolved to reach the current status.”
In a report dated 12 December 2019, Dr Singh stated that he did not believe that the applicant had any work capacity. Dr Singh stated that the applicant has disc bulging and foraminal stenosis at C7/T1, L5S1 disc bulging and minor disc bulging at L1/2. Dr Singh stated that he “Do not believe with [sic] the diagnosis of lumbar spondylosis by Dr Powell”.
Dr Singh stated that the applicant:
“does have a underlying pars defect at S1 which is lumbarised However he does not have any symptoms are [sic] arising from this motion segment Therefore it is unlikely that degenerative disease process has resulted in this condition It is mor likely than not that the work injury has aggravated and resulted in the disc bulging in his lumbar spine, and his neck.”

Associate Professor Raj Sundaraj, specialist pain medicine physician

In a report dated 12 December 2019, Associate Professor Sundaraj stated that the applicant had been troubled with early degenerate changes to the entire spine and there was ossification and foramen narrowing. He stated that he considered it,
“likely that the work related injury not only caused problem to his left shoulder with a rotator cuff muscle tear that resulted in 3 left shoulder surgeries, it may have also flared up the asymptomatic cervical and lumbar spine problem.”
In a report dated 23 January 2020, Associate Professor Sundaraj stated that a SPECT scan showed several areas of increased inflammation, specifically at the C6/7 cervical spine, right AC joint, and lumbar spine in a couple of facet joints, inclusive of the S1 joint.
In a report dated 5 March 2020, Associate Professor Sundaraj noted that the applicant was troubled with muscle spasm alongside the left side of the head and neck and upper back including proximal arm.
In a report dated 7 May 2020, Associate Professor Sundaraj noted that the applicant continued to be troubled by muscle spasm in the cervical spine, with the left side worse than the right. The applicant also had associated headache and radiating pain to the shoulder girdle and interscapular region.
In a report dated 11 June 2020, Associate Professor Sundaraj stated that the applicant continued to be troubled with significant pain around the left side of neck with radiation towards the left shoulder, there is evidence of sub-deltoid bursitis and post-operative rotator cuff repair. He noted that the applicant had associated muscle spasm not only to the left shoulder but radiating towards the left side of the neck with associated headache and weakness to the left upper limb is evident.
In a report dated 23 July 2020, Associate Professor Sundaraj noted that the applicant continues to be troubled with ongoing pain not only in the left shoulder but in the right shoulder as well. He noted that the applicant also had pain in the cervical spine with radiation towards the entire neck and associated daily constant headaches. The applicant also had lower back pain. Associate Professor Sundaraj stated that:
“As a consequence of all the above, the following would be his current medical condition from my point of view;
oLeft shoulder rotator cuff injury inclusive of sub-deltoid bursitis. He has had three previous surgeries to this site.
oRight shoulder pain including the arm. More than likely this is due to favouring the left upper limb and as a consequence has developed a problem in the opposite limb.
oCervical spondylosis, facet joint increased inflammatory markers and foraminal stenosis causing left upper limb neuropathic pain.
oLow back pain. More than likely this is of a facet joint mechanical problem inclusive of soft tissue muscular ligamentous protective pain.
oThe nuclear bone scan indicates increased inflammatory markers at a number of sites in the spine, and shoulder region. You should have copies of these in your file. Please kindly refer to this.
oSome degree of reactive clinical depression, maladaptive coping, poor sleep hygiene and more than likely some degree of adjustment disorder.
From what I could observe in this man, l believe that he was already troubled with a pre-existing degenerate changes in the cervical and lumbar spine and perhaps a number of other joints as well. These were asymptomatic and more than likely the assault (work-related injury) that occurred on the 13th May 2017 would have stirred and brought on the symptoms from these asymptomatic sites. I believe the cervical spine problem is part and parcel of the work-related injury and it is for this reason he is troubled with severe neck pain and associated constant headaches.”
In a report dated 19 August 2020, Associate Professor Sundaraj stated that the applicant was “not only... trouble with head and neck and left shoulder, he states that his low back problem has become progressively worse...” and the applicant required a low back bilateral L5/S1 facet joint and a lumbar epidural.
In a report dated 21 October 2020, Associate Professor Sundaraj stated that he had recently performed a left C6/7 and C7/T1 facet joint steroid therapy including cervical epidural steroid, with some improvement. The applicant’s most troubling problem at that time was his lower back, specifically lower lumbar facet joints including S1 joint inflammation.
Associate Professor Sundaraj stated that, according to the applicant, that had arisen as a consequence of the accepted work injury.
In a report dated 7 December 2020, Associate Professor Sundaraj stated that the applicant had significant pain in his lower back with radiation to left lower limb. In addition, the applicant was troubled with the recurrence of pain in the head and neck and also to upper limbs. Associate Professor Sundaraj stated that:
“To my reading of the entire case, all these regions are part and parcel of the work-related injury he sustained as reported on the 13^th May 2017. As I had mentioned in my previous correspondence, the shoulder and cervical spine took precedence initially and his lower back injury faded into obscurity up until recently. Admittedly there are degenerate changes in the entire spine which includes cervical and lumbar region as well...
I urge you to review his file and accept the entire problem (cervical spine, shoulders and lower back) as one entity. Behind this background, there will be age related degenerate process but according to the narrative of this gentleman, these were asymptomatic prior to injury.”
In a report dated 11 March 2021, Associate Professor Sundaraj stated that the applicant was troubled with: pain around his left shoulder with radiating pain towards the lower left limb; pain at the base of his neck and associated headache, and low back pain.
Associate Professor Sundaraj stated that those “are all interrelated problems”.
In a report dated 21 July 2021, Associate Professor Sundaraj stated that the applicant continues to be trouble by pain in his neck and lower back.

Medical file/notes – Emu medical centre

Clinical records of the Emu medical centre general practice relevantly noted the following:
(a)    On 3 September 2016, the applicant attended regarding an acute flare up of longstanding backpain. The applicant had spasm of the paraspinal muscles. A CT scan of the lumbar spine was requested and the applicant was referred to physiotherapy;
(b)    On 4 October 2016, the applicant attended regarding the results of the CT scan of the lumbar spine;
(c)    On 5 October, the applicant attended for back pain;
(d)    On 10 October 2016, the applicant attended for back pain and reported that he couldn’t go to work over the weekend due to a heavy lifting issue;
(e)    On 13 May 2017, the applicant attended for left shoulder pain and injury. He reported an incident at the correctional centre where he was attacked as he was removing an inmate;
(f)    On 17 July 2017, the applicant attended for post-operative left shoulder wound care;
(g)    On 16 November 2017, the applicant attended for his shoulder injury and had undertaken a shoulder MRI scan;
(h)    On 1 December 2017, the applicant attended regarding his shoulder injury. It was noted that he would require an operation to the left shoulder “AJ joint”;
(i)    On 15 November 2017, the applicant attended regarding his shoulder injury, he was due to have an operation in the coming days;
(j)    On 2 January 2018, the applicant attended for post-operative left shoulder injury wound care;
(k)    On 17 January 2018, the applicant attended in relation to his shoulder injury and reported ongoing pain and restricted movement;
(l)    On 2 February 2018, the respondent reported that he was still having problems with his left shoulder despite two operations by Dr Khatib. The applicant wanted to obtain a second opinion;
(m)     On 19 February 2018, the applicant attended regarding his shoulder injury and advised he was seeking a second opinion;
(n)    On 20 March 2018, the applicant attended regarding his shoulder injury, he was seeing an orthopaedic surgeon and had an intrarticular injection scheduled the following week;
(o)    On 17 April 2018, the applicant still had no work capacity regarding his left shoulder despite undertaking physiotherapy. There were “no new complaints”;
(p)    On 19 July 2018, the applicant reported left shoulder pain and that he had also started to have lower back pain;
(q)    On 15 August 2018, the applicant reported worse pain due to bad posture at work (improper desk and chair);
(r)    On 29 August 2018, the applicant required further left shoulder surgery;
(s)    On 28 September 2018, the applicant underwent further left shoulder surgery performed by Dr Gupta on 15 September 2018;
(t)    On 26 October 2018, the applicant attended for post-operative left shoulder review;
(u)    On 23 November 2018, the applicant attended for post-operative left shoulder review;
(v)    On 5 November 2018, the applicant attended for post-operative left shoulder review;
(w)   On 3 January 2019, the applicant reported chronic shoulder pain and limitation of movement;
(x)    On 16 January 2019, the applicant reported left shoulder soreness and a sensation of pins and needles in his left hand;
(y)    On 27 February 2019, the applicant still had restricted movement in his left shoulder;
(z)    On 28 February 2019, the applicant reported pain at his neck and upper to middle back had gradually become worse and he could not sleep from the pain. He also reported right shoulder pain. The applicant reported that he had been compensating with extra back and right shoulder movements sometimes at weird positions or posture to carry out daily functioning. On examination, the general practitioner noted tenderness on paravertebral regions of the cervical and thoracic spine, movements painful and mildly restricted. An MRI scan of the cervical and thoracic spine was requested;
(aa)    On 13 March 2019, the applicant had been quite unwell with increasing right shoulder and back pain. A right shoulder MRI scan showed multiple tendon tear, tendinosis, tenosynovitis and bursitis;
(bb)    On 21 March 2019, the applicant reported ongoing shoulder and back pain. The results of a cervical spine MRI and thoracic spine MRI showed possible acute disc protrusion at L 1/2 level;
(cc)     On 29 April 2019, the applicant reported continuing neck pain which was giving him headache;
(dd)    On 13 May 2019, the applicant attended for back pain;
(ee)    On 30 May 2019, Dr Gupta said that he could do nothing further for the applicant’s shoulders and he was advised to see a spinal surgeon. The applicant’s lower back was still quite painful and he could not walk long distances;
(ff)    13 November 2019, the applicant had attended a pain specialist regarding severe pain;
(gg)    8 January 2020, the patient still experienced a lot of pain in his neck, back and shoulders. The applicant’s shoulder movement was very restricted. The applicant needed to put his left arm in a sling sometimes to relieve the pressure for his neck and he was unable to sleep due to the pain;
(hh)    On 5 February 2020, the applicant still had a lot of pain in his neck, back and shoulders. He had been reviewed by a pain specialist;
(ii)    On 4 March 2020, the applicant still had a lot of pain in his neck, back and shoulders;
(jj)    On 31 March 2020, the applicant sought renewal of a WorkCover certificate. He described that “a prisoner kicked him in the shoulder and back” at work at the correctional centre almost three years ago requiring him to have three injuries to his left shoulder, attend a neurosurgeon Dr Sing regarding spinal injury and attend pain specialist Associate Professor Sundaraj for pain management;
(kk)     On 28 April 2020, the applicant attending regarding left shoulder injury and back pain;
(ll)    On 26 May 2020, the applicant reported pain at his left shoulder which radiated to the left side of his neck;
(mm) On 17 June 2020, the applicant reported pain in the neck, pain which radiated to both shoulders and pain in the lower back;
(nn)    On 21 July 2020, the applicant was awaiting approval of CT guided cortisone injection to both sides of neck and left shoulder. The applicant also had pain at his right shoulder and back;
(oo)    On 21 July 2020, the applicant had chronic left shoulder pain;
(pp)    On 18 August 2020, the applicant had chronic pain and was waiting for approval for cortisone injection to left shoulder and neck;
(qq)    On 15 September 2020, the applicant still had pain in the neck and both shoulders which radiated to the left upper limb. He also had pain in the lower back. He was awaiting approval for left spine facet joint injection and epidural injection. The applicant reported that he believed that the inmate had kicked/punched him at the time of incident;
(rr)   On 12 October 2020, the applicant had received cortisone injection to his neck and left shoulder which provided some pain relief. It was recommended that the applicant have cortisone injection to his lower back;
(ss)     On 9 November 2020, the applicant’s left shoulder pain had improved but his lower back pain had increased. The applicant was awaiting approval for cortisone injection to his lower back;
(tt)    On 11 November 2020, the applicant had attended pain specialist
Associate Professor Sundaraj and was told to do an MRI lower back;
(uu)    On 7 December 2020, the applicant was still having left shoulder pain, neck pain and back pain. He was also getting right shoulder pain, possibly because of compensatory overload. The applicant had a restricted range of movement of his back and neck;
(vv)     On 5 January 2021, the applicant had continuing pain of the left shoulder, neck and back. His right shoulder was also getting worse. He had restricted movement of his lower back;
(ww) On 19 January 2021, the applicant had depression and anxiety related to his multiple injuries related to work;
(xx)     On 3 February 2020, the applicant had left shoulder pain, right shoulder pain, back pain and neck pain, and
(yy)     On 31 March 2021, the applicant had persisting back pain, neck pain and bilateral shoulder pain.

Imaging reports

A report dated 31 May 2017 in relation to MRI of the left shoulder noted: complex tear involving the anterior supraspinatus tendon; high grade articular sided partial thickness intrasubstance tear involving the inferior half of the subscapularis tendon; degenerative wear involving the superior labrum with some paralabral cysts seen at the posterosuperior labrum; reactive subacromial bursitis and mild degenerative change involving the AC joint.
A report dated 14 March 2019 in relation to MRI of the cervical and thoracic spine noted: in the cervical spine, there was mild spondylotic disease, being relatively more severe at C6/7, causing moderately severe foraminal stenosis bilaterally and symmetrically; in the thoracic spine, there was features suggestive of Scheuermann’s disease (chronic common ailment in the active age group), acute disc protrusion as L1/2 that may be contributory to symptoms and age and there was no acute disc disease in the entire thoracic spine.
A report dated 1 May 2019 in relation to MRI of the lumbar spine noted: transitional lumbosacral anatomy: with lumbarisation of S1; bilateral S1 parts interarticularis defects without spondylolisthesis; shallow disc bulge at L1/2; without a focal disc protrusion or spinal canal stenosis; Modic type 1 endplate changes at L1/2; L5/S1 4mm central disc protrusion; without significant spinal canal stenosis or obvious neural impingement.

Independent medical evidence

Dr Peter Giblin, orthopaedic surgeon

Dr Peter Giblin provided an independent medical opinion at the request of the applicant.
In a report dated 19 July 2021, Dr Giblin noted that the applicant described sustaining two injuries on 13 May 2017: one when he was kicked in the back by an inmate; and the other, when he was holding the legs of an inmate to move to a secure area and her kicking and thrashing damaged his left shoulder, causing him to feel acute pain. Dr Giblin noted that the applicant experienced ongoing left shoulder pain and underwent left shoulder surgery to repair his rotator cuff on 13 July 2017, left shoulder surgery to excise the left acromioclavicular joint 8 December 2017 and further surgery to repair his rotator cuff on 15 September 2018. The applicant never returned to work thereafter. Dr Giblin noted that the applicant’s right shoulder became painful about 14 months after the index injury and following the third shoulder operation. At about that time, the applicant also developed soreness and stiffness in his neck. The applicant had extensive physiotherapy on his neck in 2019 and a steroid injection for his neck in 2020. He has had no new injuries.
Dr Giblin noted previous history which included general practitioner records indicative of some occasional backache through 2014 and a fall at home in December 2016 when the applicant landed on his buttocks and developed low back pain but was treated conservatively and made a fair recovery with no time off work.
Dr Giblin noted that the applicant complained that both his shoulders were stiff and sore and his upper extremities had lost their strength and function. The applicant experienced low back pain with intermittent sharp shooting pains and pins and needles going down his left leg into his foot and ankle. As a result of the symptoms, the applicant slept poorly and was unable to undertake recreational activities which he previously enjoyed.
Dr Giblin examined the applicant and reviewed x-rays and investigations.
Dr Giblin stated a provisional diagnosis of a soft tissue injury to the applicant’s left shoulder and low back as a result of the injury on 13 May 2017. Dr Giblin stated a diagnosis of a secondary or compensatory injury affecting his right shoulder and cervical spine.
Dr Giblin stated that the applicant’s condition was stable having reached maximum medical improvement. The applicant’s prognosis guarded. He stated that the applicant’s symptoms will persist, his injuries will deteriorate and future surgical considerations will become part of his clinical management. Future surgical considerations would include, but not be limited to, a left shoulder replacement operation. Dr Giblin stated that the applicant was permanently unfit to use his upper extremities for heavy repetitious pushing, pulling, lifting or twisting, load bearing, operating heavy vibrating machinery, impact activities or recurrent use at or above shoulder height. Further, the applicant was unfit to load his low back with heavy repetitive bending, lifting and twisting or prolonged periods of uninterrupted sitting or standing.

Referring to the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (AMA 5), Dr Giblin assessed the applicant as having 7% whole person impairment in relation to his right upper extremity (shoulder), 11% whole person impairment in relation to his left upper extremity (shoulder), 5% whole person impairment in relation to his cervical spine injury, 5% whole person impairment in relation to his lumbar spine injury with a further 2% whole person impairment in terms of activities of daily living. On that basis, Dr Giblin assessed a total 27% whole person impairment.

Dr Richard Powell, orthopaedic surgeon

Dr Richard Powell provided an independent medical opinion at the request of the respondent.
In a report dated 25 July 2019, Dr Powell noted that the applicant said that he sustained an injury in a workplace incident on 13 May 2017 when he was carrying the legs of a female inmate as he was attempting to transfer her to her cell with the assistance of three of his colleagues. Dr Powell noted that the applicant was not aware of any symptoms at the time but awoke the next day with left shoulder pain which prompted him to attend his general practitioner who referred him to Dr Khatib, orthopaedic surgeon. An MRI scan identified a rotator cuff tear on a background of rotator cuff tendinopathy and in association with subacromial bursitis and AC joint degeneration. The applicant underwent left shoulder surgery in the nature of left shoulder arthroscopy, subacromial decompression, rotator cuff repair and biceps tenotomy. Several months later the applicant underwent further surgery in the nature of excision of the AC joint. Symptoms persisted and a repeat MRI scan identified recurrent rotator cuff pathology and a labral tear. In September 2018, further surgery was performed in the nature of a revision rotator cuff repair.
Dr Powell noted that the applicant developed right shoulder symptoms during rehabilitation from the left shoulder surgery. An MRI scan in March 2019 identified partial thickness tears of supraspinatus and subscapularis, and some medial subluxation of the long head of biceps. Conservative management was recommended.
Dr Powell noted that the applicant also developed cervical spine symptoms whilst undertaking an exercise physiology program following the first surgery. An MRI scan of the cervical spine in March 2019 identified multilevel changes of cervical spondylosis maximal at C6/7.
Dr Powell noted that an MRI scan of the lumbar spine in May 2019 identified some minor disc pathology at L5/S1. Dr Sing recommended conservative management.
Dr Powell noted that the applicant remained symptomatic in relation to his shoulders, neck and back.
Dr Powell stated that the applicant denied any prior injuries of the shoulders or cervical spine. He sustained lumbar spine injury in a non-work related fall some five years earlier but investigations were reportedly normal.
On examination, Dr Powell noted that there was no suggestion of overreaction or exaggeration. Dr Powell noted restricted movement and some tenderness of the head and neck. There was some tenderness and restricted movement, particularly of the left shoulder. There was some tenderness and restricted movement of the lumbosacral spine.
Dr Powell noted that: MRI left shoulder dated 31 May 2017 showed complex partial thickness tears of supraspinatus and infraspinatus with underlying rotator cuff tendinopathy, subacromial bursitis and AC joint degeneration; MRI left shoulder dated 16 November 2017 showed rotator cuff repair was intact with subacromial bursitis and a biceps tenotomy; MRI right shoulder dated 1 March 2019 showed low grade partial thickness tear of supraspinatus and subscapularis with subluxation of the long head of biceps; MRI cervical spine dated 14 March 2019 showed multilevel changes of cervical spondylosis maximal at C6/7 without focal disc protrusion or neural compromise; MRI thoracic spine dated 14 March 2019 showed evidence of Scheuermann’s disease although no acute abnormalities, and MRI lumbar spine dated 1 May 2019 showed minor disc pathology at L1/2 and L5/S1 without neural compromise.
In relation to the applicant’s left shoulder, Dr Powell diagnosed complex partial thickness tears of the supraspinatus and subscapularis, treated by conservative management and then surgically treated by Dr Khatib with left shoulder arthroscopy, subacromial decompression, biceps tenotomy and rotator cuff repair. Several months later it was treated with an open excision of the AC joint. Left shoulder symptoms persisted and Dr Gupta undertook a repeat arthroscopy in September 2018. The left shoulder remains a source of ongoing symptoms with persisting pain, stiffness and restriction in range of motion. Dr Powell noted that the applicant developed pain in the left shoulder “after assisting an inmate back to their cell on 13 May 2017”. Dr Powell noted that liability had been accepted for the left shoulder presumably on the basis that the incident that occurred on 13 May 2017 resulted in aggravation of pre-existing degenerative pathology involving the rotator cuff.
Dr Powell stated that the applicant was suffering right shoulder pain reflecting some underlying rotator cuff tendinopathy and partial thickness tears which had been conservatively managed under the care of Dr Gupta. Dr Powell noted that the applicant was also suffering cervical spondylosis managed conservatively under the care of Dr Singh.
Dr Powell further noted that the applicant suffered lumbar spondylosis with minor disc pathology at L1/2 and L5/S1 also managed conservatively by Dr Singh. Dr Powell stated that there was no history of any specific incident involving the right shoulder, cervical spine or lumbar spine. Dr Powell stated that symptoms in those areas appear to have developed “in an insidious fashion without a specific precipitating event”.
Dr Powell stated that in his opinion the applicant was not fit to return to his pre-injury duties.
Dr Powell stated that in his opinion the applicant’s incapacity is multifactorial. Dr Powell stated that in his opinion the applicant’s incapacity that relates to his shoulders is the result of injuries sustained in the course of his employment. Dr Powell stated that he does not believe the degenerative disease process involving the cervical spine and lumbar spine are the result of injuries sustained in the course of employment on 13 May 2017. Dr Powell said that they represent pre-existing degenerative disease processes. Dr Powell said that he did not believe there is a direct relationship between the degenerative disease processes involving the cervical and lumbar spine and the workplace incident on 13 May 2017. He stated that the current symptoms and resulting incapacity from the cervical and lumbar spine conditions reflect the natural history of the underlying degenerative disease processes involving these areas.
Dr Powell did not believe there is sufficient evidence to conclude that the applicant’s employment and the incident on 13 May 2017 represents the main contributing factor in the development or aggravation of the pre-existing degenerative disease processes involving the cervical and lumbar regions.
Dr Powell stated the applicant had reached a state of maximum medical improvement in relation to his left shoulder condition. Having regard to the AMA 5, Dr Powell assessed 13% whole person impairment with a one-tenth deduction for the pre-existing pathology, giving a total 12% whole person impairment. He assessed 0% whole person impairment in respect of scarring because it was consistent with the expected outcome of the surgical procedure undertaken without any complicating features.
In a report dated 26 November 2020, Dr Powell noted that the applicant remains symptomatic in relation to the left shoulder, right shoulder, cervical spine and lumbar spine.
Dr Powell noted the history of the incident on 13 May 2017 as described in his previous report. Dr Powell noted that there was no history of any prior injuries involving the cervical spine or shoulders although the applicant did have a previous history involving the lower back following a non-work related fall. Dr Powell noted that, since his previous report, the applicant had been medically retired, had not worked in any capacity since his last assessment and was currently certified unfit for work.
Dr Powell stated that the diagnoses remain unchanged and that they were consistent with the history provided. Dr Powell restated that the applicant’s bilateral shoulder symptoms and associated functional restrictions could be reasonably attributed to the work injury on 13 May 2017. Dr Powell did not believe that the applicant’s symptoms and functional restrictions relating to the cervical spine and lumbar spine are the result of injury sustained in the course of employment. Dr Powell restated that he did not believe there was sufficient evidence to conclude that the applicant’s employment was the main contributing factor in the development or aggravation of the degenerative disease process involving the cervical and lumbar spine. He stated that there,
“is no evidence that the applicant sustained an acute injury to these areas in the course of his employment. His symptoms developed in an insidious fashion without any specific precipitating incident. His ongoing symptoms and associated functional restrictions are consistent with the natural history of the underlying disease process.”
Dr Powell stated that in his opinion, the applicant had reached a state of maximum medical improvement in relation to the left shoulder. Having regard to the AMA 5, Dr Powell assessed 11% whole person impairment with a one-tenth deduction for the pre-existing pathology, and 0% whole person impairment for scarring, giving a total 10% whole person impairment.
In a report dated 9 February 2022, Dr Powell noted that the applicant remained symptomatic.
Dr Powell stated that his diagnoses remained unchanged. Dr Powell stated that he agreed with the opinion of Dr Peter Giblin in relation to the diagnoses involving the cervical spine, lumbar spine, and right and left shoulders and that, overall, clinical findings were fairly similar.
Dr Powell noted that liability was accepted in relation to the left shoulder. He stated that the workplace incident on 13 May 2017 resulted in permanent aggravation of a pre-existing degenerative disease process involving the left shoulder.
Dr Powell stated that the right shoulder condition was aggravation of an underlying degenerative disease process which was consequential to the accepted left shoulder injury.
Dr Powell noted that he and Dr Giblin provided differing opinions in relation to the liability for the cervical spine and the lumbar spine. Dr Powell stated that the cervical spine symptoms developed during an exercise physiology program during rehabilitation of the applicant’s left shoulder and an MRI scan in March 2019 identified multilevel changes of cervical spondylosis. Dr Powell stated that the lumbar spine symptoms developed in 2019 “without any specific precipitating incident” and an MRI scan in March 2019 identified some minor spondylitic changes at L5/S1. Dr Powell stated that in his opinion, the cervical spondylosis and lumbar spondylosis represent constitutional degenerative disease processes which are pre-existing and longstanding. Dr Powell stated that he did not believe there is no evidence that the specific workplace incident or its sequalae has resulted in either the development or permanent aggravation of the disease processes involving the cervical spine or the lumbar spine.
Dr Powell stated that in his opinion the applicant had reached a state of maximum medical improvement. Applying the AMA 5, Dr Powell assessed 14% whole person impairment in respect of the left shoulder and 7% whole person impairment in respect of the right shoulder, giving 20% whole person impairment.

SUBMISSIONS

Applicant’s submissions

The applicant’s counsel, Mr Nicholson, submits that:
(a)    whilst there is no recording of the applicant having suffered neck or back injury in the frank incident on 13 May 2017, the evidence does demonstrate that was a significant event, which caused the accepted left shoulder injury;
(b)    although the incident report in respect of the incident on 13 May 2017 does not record that the applicant was kicked in the back, other evidence demonstrates that the applicant was subjected to both a combination of movement and force as he handled the thrashing and kicking inmate and also a kick or punch to his back;
(c)    no evidence demonstrates any other significant injury to the applicant’s neck or back;
(d)    whilst the applicant did admit back injury as a result of a fall in 2016, there is no evidence that was a significant injury;
(e)    in the absence of such evidence, it can be concluded that the applicant’s back injury was due to the frank incident on 13 May 2017;
(f)    evidence demonstrates that bad posture caused by the applicant’s work chair and computer monitor position contributed to escalation of his back and neck symptoms;
(g)    the applicant is a credible witness and his evidence should be accepted;
(h)    the applicant’s medical evidence should be preferred, and
(i)    particular weight should be given to the evidence of Dr Singh which is supportive of a nexus between the applicant’s ongoing neck and back symptoms problems as a result of the 2017 frank incident.

Respondent’s submissions

The respondent’s counsel, Mr Barnes, submits that:
(a)    the incident report in relation to the incident on 13 May 2017 only referred to shoulder injury and did not record the applicant being kicked or punched. The applicant did not report neck or back complaints at the time of the incident on 13 May 2017;
(b)    the evidence indicates that the applicant had a previous back injury from a significant fall at home in 2016 and a CT scan was undertaken. Dr Giblin failed to review the CAT scan and to take proper account of that prior history;
(c)    little weight should be given to the evidence of Dr Giblin because: Dr Giblin did not consider the full history; Dr Giblin did not give sufficient weight to CT scans of the lumbar spine which showed multiple changes due to a degenerative condition; Dr Giblin’s report dealt only with the frank injury and did not deal with disease; Dr Giblin’s only gave a “provisional diagnosis”, and Dr Giblin did not provide sufficient explanation for his opinion regarding causation;
(d)    little weight should be given to the evidence of Associate Professor Sundaraj because: he did not rely on a correct history as the applicant did not report back pain at the time of the injury, and Associate Professor Sundaraj did not address disease;
(e)    there is evidence that the applicant had significant changes in his lumbosacral spine well before the incident on 13 May 2017, and
(f)    Dr Powell’s evidence is that the applicant’s neck and back problems are a longstanding degenerative condition and are not causally linked to the frank incident on 13 May 2017.

Applicant’s submissions in reply

In reply, Mr Nicholson submits that:
(a) evidence of the applicant’s general practitioner indicates that the applicant suffered injury to his back on 13 May 2017.

FINDINGS AND REASONS

Did the applicant sustain a back injury and/or a neck injury? – ss 4(a), 4(b)(ii) and 9A of the 1987 Act

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
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, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
In AV v AW,[1] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[1] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[2] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The 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. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[3]
[2] [1964] HCA 34; 110 CLR 626.
[3] Semlitch, 640.

Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[4]
[4] Semlitch, at 635.
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[5] (Kooragang), where Kirby J stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[6]
[5] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[6] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463] – [464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[7] raised some concerns about the commonsense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common sense approach still has place in the application of the legislation to the present case.
[7] [2016] HCA 43, [42].
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[8] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[8] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
It is accepted that, arising out of the workplace incident on 13 May 2017, the applicant sustained a frank injury to his left shoulder and a consequential condition involving his right shoulder.
What requires determination is whether the applicant has also sustained injury to his neck and back pursuant to s 4(a), or the aggravation, acceleration, exacerbation or deterioration of a disease pursuant to s 4(b)(ii), arising out of the incident on 13 May 2017 or the work station where the applicant was required to sit.
The applicant’s own evidence is that prior to 13 May 2017: he had episodes of back pain in 2016 and attended his general practitioner in that regard; he had no serious neck pain, and he may have had right shoulder problems but can’t recall. He states that at 13 May 2017, he was fully fit performing full duties.
The general practitioner’s clinical records confirm that the applicant reported back pain in September and October 2016 which was treated conservatively. There is no indication of ongoing back symptoms between that time and when the applicant reported back and neck symptoms in July 2018.
The applicant’s own evidence is that on 13 May 2017 he forcibly restrained and carried a large female inmate who was aggressively thrashing and trying to break free. The applicant stated that, whilst he was in awkward positions, for about 4 to 5 minutes he was subjected to large amounts of force to his neck, back and shoulders. The applicant also described being assaulted by the inmate by a heavy impact to the right side of his lower back causing whiplash to his neck. The applicant stated that the following day he felt pain in his left shoulder and attended his general practitioner. He was unable to return to his duties apart from a period of light duties for a period in 2018. The applicant’s left shoulder pain continued to deteriorate and he underwent three surgical procedures on 3 July 2017, 18 December 2017 and 15 September 2018.
The applicant’s description of the incident on 13 May 2017 is largely corroborated by the Incident/Injury Report Form and the Incident Details Form, which evidence that the applicant had to forcibly restrain and carry an inmate who was struggling and aggressively resisting and that the applicant was “attacked” from behind and “punched” in his lower back. However, I do note some inconsistency with a certificate dated 31 March 2020 which records that the applicant described that “a prisoner kicked him in the shoulder and back”. Further, neither the Incident/Injury Report Form nor the Incident Details Form refer to neck whiplash.
The general practitioner’s clinical records indicate that on 13 May 2017 the applicant reported left shoulder pain and injury arising from an incident at the correctional centre where he was attacked removing an inmate, however there is no reference on that date to neck or back injury or symptoms. The clinical notes record the applicant’s numerous subsequent attendances in relation to ongoing left shoulder pain, investigations and left shoulder surgeries in July 2017, December 2017 and September 2018. The clinical notes indicate that the applicant reported right shoulder pain from February 2019. The clinical notes also indicate that the applicant reported lower back pain in July 2018, worsening of lower back pain due to bad posture at his work station in August 2018, pain in his neck and worsened pain in his back in February 2019 from compensating, increasing back pain in March 2019, numerous attendances for continuing back and neck pain thereafter and treatment by cortisone injection to his neck in October 2020.
An MRI of the applicant’s left shoulder on 31 May 2017 noted complex tear involving the anterior supraspinatus tendon, high grade articular sided partial thickness intrasubstance tear involving the inferior half of the subscapularis tendon, degenerative wear involving the superior labrum with some paralabral cysts seen at the posterosuperior labrum, reactive subacromial bursitis and mild degenerative change involving the AC joint.
On 20 June 2017, Dr Khatib diagnosed a left shoulder intra substance tear of the left subscapularis. On 3 July 2017, Dr Khatib performed left shoulder arthroscopy, biceps tenotomy, acromioplasty, bursectomy and rotator cuff repair.
On 18 December 2017, the applicant underwent a second left shoulder surgery.
On 15 September 2018, he underwent a third left shoulder surgery.
The applicant’s own evidence is that, following the third operation, he developed symptoms in his right shoulder due to overuse while his left shoulder was injured and immobilised.
The applicant’s own evidence is that in 2018 he developed increasing neck and back pain which was further aggravated by being subjected to awkward bodily positions at his desk workstation due to inadequate chair support and an unsuitable computer monitor during the period of light duties in 2018. The applicant stated that he told his general practitioner who referred him for a shoulder MRI scan and recommended conservative management. The applicant stated that he believed that his back and neck pain had previously been masked by pain medication. The applicant initially thought his back and neck pain was referred pain from his left shoulder but his doctors told him it was a combination of the assault, his shoulder injury and the work station. The applicant stated that the insurer paid for treatment to his neck in 2019 and 2020.
The Ergonomic Assessment Report corroborates the applicant’s evidence that his chair support and computer monitor provided inadequate back support and caused unnatural lumbar and neck postures.
An MRI of the applicant’s cervical and thoracic spine dated 14 March 2019 noted in the cervical spine, mild spondylotic disease causing moderately severe foraminal stenosis bilaterally and symmetrically. In the thoracic spine, there was features suggestive of Scheuermann’s disease and acute disc protrusion at L1/2 however there was no acute disc disease in the entire thoracic spine.
An MRI of the applicant’s lumbar spine dated 1 May 2019 noted transitional lumbosacral anatomy, with lumbarisation of S1, bilateral S1 parts interarticularis defects without spondylolisthesis, shallow disc bulge at L1/2, without a focal disc protrusion or spinal canal stenosis, Modic type 1 endplate changes at L1/2, L5/S1 4mm central disc protrusion without significant spinal canal stenosis or obvious neural impingement.
On 28 June 2019, Dr Singh reported that the applicant’s neck pain was likely arising from disc bulging and foraminal stenosis at C7-T1 and that the applicant’s lumbar pain was likely arising from a disc injury at L5-S1 and at L1-2. It appears that Dr Singh believed that the injury on 13 May 2017 directly caused those conditions rather than causing an aggravation of a pre-existing condition. Dr Singh stated that the applicant had no symptoms prior to the injury. Dr Singh noted that scans did reveal spondylolysis at S1, however he further noted that motion segment was asymptomatic. Dr Singh believed that the applicant’s employment as a correctional officer is a substantial contributing factor to the injury. He stated that the described mechanism of injury by “the restraint and subsequent assault” is commensurate with the applicant’s presenting pathology. Dr Singh said that he was unaware of any non-work related factors affecting the applicant’s current pathology. Dr Singh considered it likely that the applicant’s acute shoulder injury had initially masked his symptoms of the injury sustained to the rest of the spine.
On 12 December 2019, Dr Singh confirmed his diagnosis of disc bulging and foraminal stenosis at C7-T1, L5-S1 disc bulging and minor disc bulging at L1-2. Dr Singh expressly disagreed with Dr Powell’s diagnosis of lumbar spondylosis. Dr Singh accepted that the applicant does have an underlying pars defect at S1 which is lumbarised, however he noted that the applicant does not have any symptoms arising from this motion segment. On that basis, Dr Singh considered it was unlikely that degenerative disease process has resulted in this condition. Dr Singh state that it is more likely than not that the work injury on 13 May 2017 “aggravated and resulted in the disc bulging in the applicant’s lumbar spine, and his neck”.
On 12 December 2019, Associate Professor Sundaraj reported that the applicant had early degenerate changes to the entire spine with ossification and foramen narrowing. On 23 January 2020, Associate Professor Sundaraj observed that a SPECT scan showed several areas of increased inflammation, specifically at the C6/7 cervical spine, right AC joint, and lumbar spine in a couple of facet joints, inclusive of the S1 joint.
From March 2020 until July 2021, Associate Professor Sundaraj consistently noted that the applicant continued to be troubled by muscle spasm in the cervical spine with radiation towards the neck and associated headache and lower back pain which became progressively worse. Associate Professor Sundaraj considered that they were “all interrelated problems”.
On 23 July 2020, Associate Professor Sundaraj diagnosed left shoulder rotator cuff injury inclusive of sub-deltoid bursitis, cervical spondylosis with facet joint increased inflammatory markers and foraminal stenosis and lumbar facet joint mechanical problem inclusive of soft tissue muscular ligamentous protective pain. Associate Professor Sundaraj considered it likely that the work related injury on 13 May 2017 not only caused a left shoulder rotator cuff muscle tear, but it also flared up pre-existing asymptomatic cervical and lumbar spine pre-existing degenerate changes. On 21 October 2020, Associate Professor Sundaraj reported that he had recently performed a left C6/7 and C7/T1 facet joint steroid therapy including cervical epidural steroid, with some improvement. However the applicant had continued problems with his lower lumbar facet joints including S1 joint inflammation.
On 7 December 2020, Associate Professor Sundaraj reiterated his previous opinion that the applicant’s cervical spine, lower back and shoulder problems were all part of the injury sustained on 13 May 2017. He noted that the applicant had pre-existing asymptomatic degenerative changes to his entire spine. He stated that following the injury on 13 May 2017, the shoulder and cervical spine symptoms initially took precedence and the lower back symptoms became more recently apparent.
It is apparent from the treating medical evidence that the applicant did develop cervical and lumbar symptoms and pathology at least from early 2019.
The treating medical evidence does suggest that the cervical and lumbar pathology revealed in the MRIs in March and May 2019 is consistent with the injury on 13 May 2017.
Dr Singh’s opinion, although somewhat ambiguous, appears to be that the injury on 13 May 2017 aggravated and resulted in the disc bulging in the applicant’s lumbar and cervical spine. I do note that Dr Singh inaccurately recorded the incident on 13 May 2017 as being that the applicant “intervened in a fight and was assaulted” (report dated 28 June 2019).
Associate Professor Sundaraj believed that the 13 May 2017 “flared up” previously asymptomatic degenerative changes to the applicant’s spine. Associate Professor Sundaraj explained the precedence of the acute shoulder and neck symptoms leading to delay in presentation of lower back symptoms. This is not inconsistent with the applicant’s evidence that those symptoms became more apparent once his shoulder surgeries were completed and his shoulder pain medication reduced.
Neither the reports of Dr Singh nor of Associated Professor Sundaraj specifically address the applicant’s evidence in relation to his workstation aggravating his symptoms or pathology.
The medicolegal evidence is somewhat problematic on both sides.
Dr Giblin stated a provisional diagnosis of a soft tissue injury to the applicant’s lower back as a result of the injury on 13 May 2017. Dr Giblin stated a diagnosis of a secondary or compensatory injury affecting the cervical spine. Although Dr Giblin’s opinion was expressed as a “provisional diagnosis” no qualifications, provisions or further investigations were stated.
I accept that Dr Giblin’s report dealt with the frank injury and did not address disease in the context of the various CT scans which showed multiple spinal changes due to a degenerative condition including before the incident on 13 May 2017.
Dr Powell’s opinion is that there is no direct relationship between the degenerative disease processes involving the cervical and lumbar spine and the workplace incident on 13 May 2017. He stated that the current symptoms and resulting incapacity from the cervical and lumbar spine conditions reflect the natural history of the underlying degenerative disease processes involving these areas. Dr Powell did not believe there is sufficient evidence to conclude that the applicant’s employment and the incident on 13 May 2017 represents the main contributing factor in the development or aggravation of the pre-existing degenerative disease processes involving the cervical and lumbar regions.
I accept the applicant’s evidence that Dr Powell did not record an accurate history of the incident on 13 May 2017. Dr Powell’s description of the incident does not indicate the extent of the forces to which the applicant was subjected whilst restraining and carrying the inmate, in the nature of a large inmate aggressively resisting by thrashing and kicking. Further, Dr Powell did not refer to the applicant being subjected to a heavy impact on his lower back. Having regard to the evidence as a whole, I consider that such information is very relevant to determination of the cause of the applicant’s symptomatology and pathology.
Significantly, Dr Powell appears to have been influenced in his opinion by his stated belief that there was no history of any specific incident involving the right shoulder, cervical spine or lumbar spine. Dr Powell stated that those symptoms appear to have developed “in an insidious fashion without a specific precipitating event”. Dr Powell did not take full or any account of or address the significance and bearing of the full physical impact on the applicant of the incident on 13 May 2017.
In contrast, Dr Giblin appears to have more fully considered the nature of the physical impacts in the incident on the applicant on 13 May 2017. Dr Giblin noted that the applicant described sustaining two injuries on 13 May 2017: one when he was kicked in the back by an inmate; and the other, when he was holding the legs of an inmate to move to a secure area and her kicking and thrashing damaged his left shoulder, causing him to feel acute pain.
I accept that the evidence is somewhat inconsistent and unclear whether the applicant was hit or kicked in the back, but nevertheless I accept that the applicant sustained a forceful and significant impact of that nature on his lower back.
Dr Powell did not refer to the applicant’s back injury in 2016. Dr Giblin did note the applicant’s previous history which included general practitioner records indicative of some occasional backache through 2014 and a fall at home in December 2016 when the applicant landed on his buttocks and developed low back pain but was treated conservatively and made a fair recovery with no time off work.
In that regard I accept that there is no evidence that the applicant sustained a significant injury in 2014 nor 2016 because it appears that the applicant’s back pain was treated conservatively, there is no evidence of medical follow up or treatment of that back injury after October 2016 and, further, there is no evidence that the applicant complained of back pain between that time and the incident on 13 May 2017. I accept the applicant’s evidence that he was fully fit performing full duties at the time of the incident on 13 May 2017.
I note that there is no other evidence that the applicant had neck and back symptoms prior to the incident on 13 May 2017.
There is no evidence of any other factor causative factor of the development and increase in the applicant’s lumbar and cervical symptomology.

The Court of Appeal in Nguyen v Cosmopolitan Homes[9] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[9] [2008] NSWC 246.
This is not a case where the evidence is clear cut. The medicolegal evidence is also somewhat problematic.
Having carefully considered the evidence as a whole and for the reasons given above, I am however satisfied on the balance of probabilities that the applicant developed lumbar and cervical symptomatology in early 2019 arising out of his employment, in particular the incident on 13 May 2017. I am satisfied that the applicant sustained injury to his lumbar spine arising out of his employment with the respondent pursuant to s 4(a) of the 1987 Act and his employment was a substantial contributing factor pursuant to s 9A(1) of the 1987 Act. Further, I am satisfied that the applicant sustained injury to his lumbar spine and cervical spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
Having made this finding, it is appropriate for me to remit the matter to the President to be referred to a Medical Assessor for an assessment of whole person impairment of the lumbar spine, cervical spine, left upper extremity (shoulder) and right upper extremity (shoulder) resulting from the injury deemed to have occurred on 13 May 2017.
All of the materials admitted in the proceedings will be included in the referral.

SUMMARY

The applicant sustained injury to his lumbar spine arising out of his employment with the respondent pursuant to s 4(a) of the 1987 Act and his employment was a substantial contributing factor pursuant to s 9A(1) of the 1987 Act.
The applicant sustained injury to his lumbar spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
The applicant sustained injury to his cervical spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
The matter is remitted to the President to be referred to a Medical Assessor for an assessment of whole person impairment of the lumbar spine, cervical spine, left upper extremity (shoulder) and right upper extremity (shoulder) resulting from injury deemed to have occurred on 13 May 2017.

[2022] NSWPIC 258

30 May 2022