De Giusti v Chris De Giusti Painting Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	De Giusti v Chris De Giusti Painting Pty Ltd [2024] NSWPIC 464
APPLICANT:	Christopher Andrew De Giusti
RESPONDENT:	Chris De Giusti Painting Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	23 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for medical expenses; accepted claim for injury to left shoulder and consequential condition of right shoulder; respondent disputed that applicant had sustained consequential condition of cervical spine; Bouchmouni v Bakhos Matta t/as Western Red Services, Kumar v Royal Comfort Bedding Pty Ltd, Rootsey v Tiger Nominees Pty Ltd, Cadbury Schweppes Pty Ltd v Bates, Kooragang Cement Pty Ltd v Bates; Paric v John Holland (Constructions) Pty Ltd, Hancock v East Coast Timber Products Pty Ltd, Australian Securities & Investment Commission v John David Rich & Ors, Makita (Australia) Pty Ltd v Sprowles, Hevi Lift (PNG) Ltd v Etherington and Nguyen v Cosmopolitan Homes considered; Held – opinion of independent medical examiner qualified by applicant provided in a “fair climate”; applicant sustained consequential condition of his cervical spine as a result of injury to his left shoulder; award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Christopher Andrew De Giusti (Mr De Giusti), is employed by the respondent, Chris De Giusti Painting Pty Ltd, as a painter.
Mr De Giusti sustained an injury to his left shoulder on 8 October 2020. Mr De Giusti sustained a consequential condition of his right shoulder and claims to have sustained a consequential condition of his cervical spine as a result of the injury to his left shoulder.
On 17 January 2024, the respondent’s insurer, EML, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed that the applicant had sustained a consequential condition of his right shoulder.
By letter dated 20 May 2024, Mr De Guisti’s solicitors requested on his behalf that EML accept liability for a consequential condition of his cervical spine. This was considered by EML as a request for review of its decision on 17 January 2024.
On 3 June 2024, EML issued a review notice in which it advised that its decision to dispute liability for the applicant’s right shoulder condition was maintained.
On 13 June 2024, EML issued the applicant with a further notice pursuant to s 78 of the 1998 Act.
EML disputed that the applicant had sustained a consequential condition of his cervical spine.
The applicant lodged an Application to Resolve a Dispute (Application) on 17 June 2024.
The applicant claimed that on 8 October 2020, he sustained an aggravation or exacerbation of pre-existing degenerative change in his left shoulder when lifting an A-frame ladder.
The applicant further claimed to have suffered a consequential aggravation or exacerbation of pre-existing degenerative change injury to his right shoulder as a result of overuse of the right shoulder to compensate for the injured left shoulder.
The applicant further claimed to have suffered a consequential aggravation or exacerbation of pre-existing degenerative change injury to his cervical spine as a result of the altered posture and altered forces throughout the cervical spine caused by the altered and restricted use of the injured left and right shoulders.
The applicant claimed past medical expenses of $325 in respect of MRI of his right shoulder; and future medical expenses of $15,180, which included various expenses with respect to his right shoulder and cervical spine, and an assessment by an occupational therapist of his functional capacity and activities of daily living requirements.
The respondent lodged its Reply on 8 July 2024.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has sustained a consequential condition of his cervical spine that has resulted in the necessity for treatment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing by the MS Teams platform on
13 August 2024.
Mr Ty Hickey of counsel appeared for the applicant, instructed by Ms Watt. Mr Philip Perry of counsel, instructed by Ms Tippett, appeared for the respondent. The applicant was present, with his wife, Ms Giusti, as support person. Mr Massih of EML also attended. Mr Massih was excused after the conciliation phase but remained available to provide instructions had they been required.
Mr Perry advised that the respondent no longer disputed that the applicant had sustained a consequential condition of his right shoulder. It maintained its dispute that the applicant had sustained a consequential condition of his cervical spine, and therefore that any treatment for such condition was reasonably necessary.
The Application was amended without objection to claim a general order for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 6 August 2024 and attached documents, lodged by the applicant.

Oral evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Christopher Andrew De Giusti

Mr De Giusti’s statement is dated 29 April 2024. I have not referred to those parts of the statement that relate to the condition of his right shoulder, as that is no longer in dispute, or his lumbar spine, which forms no part of this dispute.
He is ambidextrous. While he is predominantly right-handed, he used both hands while painting. If he was using a brush or roller, he used each hand interchangeably. If he was using a spray gun or sanding, using a piece of paper, he used only his right hand. If he was sanding using a machine, he used each hand interchangeably.
At the age of 15, he had an injury to his left shoulder while playing “footy”. As a result, his left shoulder was prone to dislocation. It would dislocate when he was even just holding a paint tray.
On 8 October 2020, he lifted an A-frame aluminium trestle. He placed it on his shoulders with the apex behind his head, so as to distribute the weight as evenly as possible.
As soon as he picked up the trestle, he felt stabbing, tingling, pinching pain in the front of his left shoulder. He made it to where he needed to be and dropped the trestle.
He initially saw his GP (general practitioner) at The Lismore Clinic. He had some scans and an injection to the left shoulder, but his condition did not improve.
During this time, he was trying to finish the jobs he had taken to the best of his ability but had to subcontract the last of his jobs to another painter so it would get done.
He was referred to Dr John Mison in December 2020. Dr Mison recommended that he have an arthroscopy. He underwent this on 9 August 2021, the postponement being due to COVID-19.
Following the surgery, he continued to have intense pain in his left shoulder. He remained in a sling for the recommended period, and then started physiotherapy.
Dr Mison advised him to change physiotherapists. By the time he had found a different physiotherapist, the Lismore floods in February 2022 essentially shut down the area and most of its businesses for a long time.
He did not have consistent rehabilitation of his left shoulder post-surgery and “that has really contributed to a poor result overall.”
Dr Mison stated in August 2022 that he did not think he was a candidate for further left shoulder surgery.
During this time, he was experiencing increased tingling and numbness down the whole of his left arm, into his fingers. He was still experiencing this pain.
After his appointment with Dr Mison, he continued physiotherapy with Physio Plus. He saw numerous physiotherapists and exercise physiologists until he started seeing Wesley Khalil, osteopath. After these appointments, he experienced swelling and pain in the left side of his neck, between his ear and shoulder. The pain sometimes lasted for days after the appointment.
He was referred to Dr Anthony Sayce at Managing Pain. Dr Sayce placed him in a program where he was to be reviewed by Dr Sayce’s psychologist and physiotherapist. The insurer got the wrong understanding and told him they were cancelling his own local psychologist and physiotherapist.
It was later explained to him that Dr Sayce’s psychologist and physiotherapist were reviewing him in conjunction with Dr Sayce’s recommendations for pain management and not for treatment. That “stuffed up” his treatment and rehabilitation again.
He underwent radiofrequency ablation of the left suprascapular nerve on 23 August 2022. He did not have a good result. He was told it would take two to three weeks for him to be able to move his left shoulder again, but it took eight weeks.
He stopped seeing Dr Sayce at the end of 2022, as the travel to and from the Gold Coast, which was three hours one way, was too much. By this time, he was suffering terribly mentally due to the time, confusion and pain, and he just could not keep going.
He sought a second opinion from Dr David Stabler, who told him he was not a candidate for further surgery and needed to continue physiotherapy.
He was referred to a local pain clinic at Lismore Base Hospital, but two days prior to its commencement, the insurer advised that it was not going to approve it.
He was seeing Wesley Khalil, which had been the most consistent treatment he had had.
During this whole time, and to date, he woke in the morning and during the night to a numb, tingling arm, either his right or left, depending on how he lay.
Since his left shoulder injury and surgery, he had “done pretty much every task you can think of”, using only his right arm. That included picking up a grocery bag, holding the clothes basket, fishing, holding a rod, pushing a trolley, pegging clothes on the line, getting clothes out of the washer, using the lawnmower, doing the dishes, driving, toileting, showering, driving himself, cooking, meal preparation, wiping down a bench, and writing.
He did anything he would normally do with two hands with his right, only using his left hand to support, but not weight bear or extend his left arm at all “(because I can’t)”.
Prior to being provided with support for gardening, which had occurred in the last couple of months, he was spending four to five weeks every few weeks driving a zero-turn lawnmower with his right hand and arm only. This placed enormous stress on his right arm and neck.
Becoming the primary carer of his children meant he was responsible for loading and unloading his vehicle with scooters and bikes. This was done by manoeuvring them with his right arm, hip and back.
His neck had caused him trouble since his injury, and more since about May 2022. It had been stiff, sore and difficult to move. He was unable to turn his neck when driving. He had to turn his whole upper body, due to pain in his neck.
Dr Sayce’s physiotherapist recommended that he have an MRI of his cervical spine, which came back normal. He had continued to have pain in that area. All the physiotherapists and his osteopath had always worked on his neck during sessions because there was a link between that area and his shoulder/s.
Since his left shoulder injury, the pain meant he protected his left shoulder with every part of his body. With every task, he would compensate for his left side being too painful by placing pressure on his right side, neck, and trunk. This had left him with ongoing pain in his lower back as well.
Sleeping and trying to sleep had been on his right side and flat on his back, which caused his arm to constantly go dead and numb. It had also put pressure on his back and neck. This had caused and contributed to pain and tingling and a stiff, painful back and right shoulder that woke him during the night. When he woke, he was so sore he could barely dress himself.
The fact that he needed to sit or lie down constantly had put a lot of strain and pressure on his neck and back, because of the way he had to position himself so as not to hurt his left shoulder.

Medical evidence

Some of the medical evidence is irrelevant to the remaining matter in dispute, and therefore it is not necessary to refer to it in these reasons.

The Lismore Clinic

On 27 May 2021, Dr Adrian Johnson recorded that the applicant said he hurt his shoulder about one week before seeing him in October 2020. He felt his shoulder “pop” when shifting scaffolding. Dr Mison planned surgery.
On 13 July 2022, Dr Prushothman (Rishi) Narenthiran recorded that the applicant had left C8 radicular symptoms for the past eight months, worse since May. It was mainly paraesthesia, present most of the time now. The applicant was sent for MRI of his cervical spine.
On 1 September 2022, Dr Verity Griffiths recorded that the applicant’s pain had not improved with the ablation.
On 27 September 2022, Dr Griffiths recorded having requested MRI of the applicant’s neck – “pain radiating from neck into shoulder gradually worsening – pain over C7 region some numbness and tingling at times. MRI to investigate for disc pathology.”
On 13 January 2023, Dr Nay Htet recorded that the applicant was struggling with ongoing pain “(? CRPS)” (complex regional pain syndrome). The applicant said his shoulder, neck, and pectoral muscles could swell up if he was in pain. He could not do overhead jobs.
On 29 May 2023, Dr Griffiths recorded that the applicant had had a flare up of pain in his left shoulder, and his right shoulder had started to hurt. It was unclear if this was due to how he had been sleeping or moving to protect the left shoulder. He had tingling down to both hands.
Dr Griffiths “re-visited” the MRI report of the applicant’s cervical spine – “no concerning findings.”
On 25 July 2023, Dr Griffiths recorded that the applicant had left shoulder pain. If he did anything physical with his left arm, he tended to get a flare up of pain and had to rest for a few days. He had right shoulder bursitis. He was unable to do anything with his right arm.
On 23 August 2023, Dr Griffiths recorded that she was at a standstill with the applicant’s recovery.
On 8 November 2023, Dr Griffiths recorded that the applicant had had an ablation. He was still suffering from bilateral numbness in his hands when he woke at night. The ablation did not improve things.

Dr John Mison – orthopaedic surgeon

Dr Mison reported to Dr Johnson on 4 March 2021.
Dr Mison noted that the applicant had some issues with his left shoulder, including a tendency to instability. The applicant was also getting some symptoms that were probably a thoracic outlet syndrome issue, as in certain positions and at night he felt pain radiating down the back of his neck to the posterior aspect of the arm and into the little finger, associated with paraesthesia. He often woke with a dead arm. This was quite a complex presentation.
Dr Mison opined that there were “two things going on”, with some interrelationship. The first was that the applicant seemed to have anterior instability, probably with a component of capsular laxity. There was also a component of thoracic outlet syndrome, certainly contributed to by his occupation and posture.
The applicant was referred for MRI/arthrogram to assess his shoulder.
On 13 May 2021, Dr Mison reported that MRI showed a probable superior labral/SLAP (superior labrum from anterior to posterior) tear that was one of the applicant’s pain generators. There was also extension of labral tearing that was consistent with the pattern of recurrent subluxations.
Dr Mison recommended that the applicant undergo arthroscopic examination of his shoulder.
Dr Mison reported to EML on 23 July 2021.
This report addressed the injury to the applicant’s left shoulder on 8 October 2020 (although Dr Mison has incorrectly referred to the date of injury as 15 October 2020), and the proposed shoulder surgery.
The surgery was performed on 9 August 2021.
Dr Mison reported to Dr Johnson on 19 August 2021 that the applicant’s shoulder was “settling down well”.
Dr Mison reported on 30 September 2021 that pain relief had been an issue for the applicant, who was still taking Tramadol. Dr Mison suggested that the applicant needed to cease heavier pain killers, “as we are just going to get into an over sensitisation problem with continuing them further.”
Dr Mison reported on 21 October 2021 that the applicant was “going along quite well now”. He would continue with physiotherapy, but Dr Mison would ask the physiotherapist to “back off” on any strengthening for at least another six weeks, to allow the applicant to work on his range of motion.
On 7 December 2021, Dr Mison reported that the applicant’s recovery had “come to a bit of a standstill”. In the last few weeks, he had had increasing pain and functionally felt weaker.
Dr Mison noted there were certainly some issues with scapular control, which would drive the applicant’s symptoms along.
Dr Mison reported on 13 December 2021 that he had spoken to the applicant’s physiotherapist. The applicant’s shoulder movement had “picked up again” and was “heading in the right direction.”
On 14 January 2022, Dr Mison reported that the applicant’s shoulder was “going along reasonably well now.” The applicant was not quite ready to return to work.
On 22 February 2022, Dr Mison reported that the applicant felt he was at a standstill. Dr Mison would consider further MRI in a few months if he was not improving.
The applicant was “in limbo”. He was not able to return to work. Dr Mison had recommended a new physiotherapist.
Dr Mison reported on 11 August 2022 that the applicant had reached a standstill. He was not making further progress at physiotherapy.
Dr Mison thought it appropriate for the applicant to go through the management plan recommended by the pain specialist. Dr Mison would “bow out” for the time being.

Managing Pain - Dr Anthony Sayce – specialist pain medicine physician

Dr Sayce reported to Dr Griffiths on 22 June 2022.
Dr Sayce opined that the applicant’s history and physical evaluation suggested post-injury pain syndrome, with clinical evidence of sensitisation in the left arm. The applicant did not meet the diagnostic criteria for CRPS.
Dr Sayce reported on 13 September 2022 that the applicant was doing well. He still had some pain, which Dr Sayce hoped would improve in the next few weeks.
Dr Sayce had encouraged the applicant to engage in physical activity, physiotherapy, and rehabilitation. He was to review the applicant in three months.
On 19 September 2022, physiotherapist Ms Elizabeth Urquhart reported to Dr Sayce that the applicant had tenderness through the paraspinal muscle and periscapular muscles globally. The range of movement in his cervical spine was reduced in all planes and stiff.
The applicant had pain para-spinally on the left side of the neck with left cervical spine and left cervical spine rotation. Ms Urquhart recorded that his posture was slumped in sitting and standing, with rounded shoulders and scapulae protected.

Ms Urquhart recommended that the applicant have a cervical spine MRI to rule out cervical spine involvement in his upper limb pain.
On 13 December 2022, Dr Sayce reported that the applicant was implementing safe and effective techniques to remain functional and participate in rehabilitation.
The applicant said that recent examinations of his neck were normal, but his shoulder scan suggested bursitis and two torn rotator cuff tendons.
Dr Sayce had no plans to follow up with the applicant at that time.

Physio Plus – physiotherapist

On 12 July 2022, physiotherapist Mr Matthew Lean reported to Dr Narenthiran.
The applicant had been seen for left shoulder rotator cuff repair rehabilitation and what appeared to be left C8 radicular symptoms since the end of May 2022.
Early in 2022, the applicant started getting C8 radicular pains in his left chest, triceps, elbow, lateral forearm, and hand, with some associated sensory changes. This was his main issue and was limiting his shoulder rehabilitation.
Mr Lean recommended cervical MRI to help confirm the diagnosis and guide the applicant’s management.

Matthew Parrish - physiotherapist

Mr Parrish reported to Dr Griffiths on 29 November 2022.
The applicant complained of moderate symptoms of a dull ache, with sharp stabbing pain down the (left) arm, and into the pectoral region, and cervical region.

Dr David Stabler – orthopaedic surgeon

Dr Stabler reported to Dr Griffiths on 20 January 2023.
Dr Stabler diagnosed the applicant with a virtual full thickness tear of the left rotator cuff; labral tear; repair of the left rotator cuff (still essentially intact); and nuisance pain in the left shoulder.
Dr Stabler opined that, regrettably, the applicant just had a great deal of nuisance pain. He had explained to the applicant that this was not warning pain, and it did not mean he should avoid exercise.
The applicant’s physiotherapy needed to be “cranked up”, and he should exercise through the pain.
As there was no indication for further surgery, Dr Stabler discharged the applicant from his care.

Evolve Allied Healthcare

On 22 May 2023, the applicant completed an intake form in which he stated that his reason for making an osteopathy appointment was “chronic shoulder/neck pain physiotherapy not helping”.
Mr Khalil recorded on 9 June 2023 that when the applicant’s shoulder was getting better, his neck would get worse. Once his neck was getting better, his shoulder got worse, creating a cycle of neck and shoulder being better or worse, dependent of the other.
Mr Khalil noted that “Traps (trapezius) are over contributing to GH (glenohumeral) movement causing increased stress to the neck, leading to strain, pain and tightness in the neck.”

Dr Glenn Davies – orthopaedic surgeon

Dr Davies was qualified by the respondent and reported on 29 August 2023.
Dr Davies recorded a consistent history of the injury and treatment.
Dr Davies noted that the applicant had made a claim for a right shoulder injury, which he put down to use or overcompensation from the left shoulder injury. Dr Davies opined that there was no evidence to support favouring as a reasonable cause for developing symptoms in the contralateral shoulder.
The applicant reported “a constellation of symptoms”. He had numbness and tingling in his whole left arm, and this also occurred in his right arm. When he woke, both arms felt dead. He had pain in both shoulders. He also had pain in the pectoralis region, biceps area, clavicle, base of the neck, and scapular spine.
Dr Davies recorded normal cervical range of motion and normal power, sensation, and reflexes in both upper limbs.
Dr Davies diagnosed partial thickness tear of the rotator cuff and associated SLAP tear. This had been surgically treated. The applicant had developed chronic pain, which had been treated by the pain clinic.
Dr Davies opined that the applicant reported a variety of atypical symptoms, not consistent with rotator cuff tear and post-surgery. There appeared to be a degree of non-organic symptoms contributing to the applicant’s presentation.
Follow up imaging showed the rotator cuff repair had been successful. However, the applicant reported ongoing pain that was inconsistent with rotator cuff pathology.
The applicant reported symptoms in his right shoulder, which Dr Davies was unable to relate to his left shoulder injury, or any work related event.

Dr Kelly Macgroarty – orthopaedic surgeon

Dr Macgroarty reported to Dr Griffiths on 10 April 2024.
Dr Macgroarty recorded a consistent history of the injury and treatment. The applicant had chronic pain that impacted his ability to work overhead or undertake heavy lifting above shoulder height.
Dr Macgroarty understood that the applicant’s neck had been investigated a couple of years ago, with a normal MRI.
On examination, the applicant had a full range of movement of his cervical spine, but with Spurling’s tests to the left side, there was some discomfort radiating into the left upper limb.
Dr Macgroarty had explained to the applicant that he was likely to have ongoing symptoms in both shoulders. With his ongoing neck complaint, there may be a role to consider repeat MRI of the cervical spine, with referral to a neurosurgeon if any pathology was identified.

Dr Andrew Porteous – occupational physician

Dr Porteous was qualified by the applicant and reported on 13 May 2024.
Dr Porteous listed the documents with which he had been provided. They included the applicant’s statement and the medical records and reports attached to the Application, as well as Dr Davies’ report and the dispute notice.
Dr Porteous recorded a consistent history of the injury and the applicant’s treatment and investigations. He noted that in about mid-2022 Mr De Giusti started to get right shoulder pain, with favouring the left, and lumbar back pain, both of which continued.
“With his ongoing neck pain”, the applicant had a scan of his cervical spine on 12 October 2022. It was reported to show no significant abnormalities.
The applicant complained of chronic left and right shoulder pain, with regular 10/10 pain, and travelling down to the elbow. He had tingling and pins and needles in the hands at times. He had chronic lumbar back pain.
The applicant’s solicitors advised Dr Porteous that they were instructed by the applicant that he was suffering from a consequential injury to his cervical spine. They asked whether Dr Porteous considered that the applicant’s cervical spine condition had been caused or aggravated by his left shoulder condition.
Dr Porteous opined that, with the altered and restricted use of his left shoulder, and developing a consequential right shoulder condition, with the altered posture and altered forces throughout his cervical spine, the applicant had a consequential injury in the cervical spine, with aggravation or exacerbation of pre-existing degenerative change. This resulted in symptomatic radiculopathy, as a result of the left shoulder injury.
Dr Porteous opined that the above was known to occur, and given the timeline, on the balance of probability it was more likely than not that the above was the reason and the cause of the applicant’s cervical ongoing pain and radicular symptoms.
Dr Porteous could not clarify a plausible reason to associate the applicant’s lumbar back condition with his left shoulder injury and could not conclude that it was consequential.

SUBMISSIONS

Counsels’ submissions have been recorded. I will summarise their main points.

Applicant

The applicant submitted that he had a relatively significant shoulder injury, with a relatively complex treatment regime, which was subject to delays. MRI of his left shoulder showed significant pathology.
The applicant referred to the evidence of Dr Mison and his physiotherapists.
The applicant submitted that cervical radicular symptoms emerged in about May 2022 on the background of a deteriorating shoulder with significant symptoms.
The applicant submitted that before we get to the medico-legal material, there was a very clear chronological sequence of events.
The applicant relied on the decisions in Bouchmouni v Bakhos Matta t/as Western Red Services[1]; Kumar v Royal Comfort Bedding Pty Ltd[2]; Rootsey v Tiger Nominees Pty Ltd[3]; and Cadbury Schweppes Pty Ltd v Davis[4] with respect to consequential conditions. He referred to Kooragang Cement Pty Ltd v Bates.[5] He submitted that a summation of the approach to be taken is to be found in Watson’s Culcairn Hotel Pty Ltd v Dwyer.[6]
[1] [2013] NSWWCCPD 4.
[2] [2012] NSWWCCPD 8.
[3] (2002) 23 NSWCCR 725.
[4] [2011] NSWWCCPD 4.
[5] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[6] [2016] NSWWCCPD 5.
The applicant submitted that there is little to be drawn from the report of Dr Davies, other than that the history recorded was consistent with the evidence on which the applicant relied.
The applicant relied on the evidence of Dr Porteous, submitting that there was no medical evidence to traverse his opinion as to the claim with respect to the condition of his neck. There was an emergence of symptoms from at least May 2022, and the symptoms and requirement for treatment continued. There was no other explanation for the requirement for treatment.
The applicant submitted that, on the totality of the evidence, and consistent with the authorities, I would find that he had a secondary condition of his cervical spine and make a general order for medical expenses.
In reply to the respondent, the applicant submitted that the respondent’s position was to seek to attack Dr Porteous’s opinion. The respondent had no evidence with which to deal with the applicant’s evidence.
The applicant submitted that Dr Porteous provided a medical basis for, and clear explanation of, his opinion. There was a “fair climate” for his opinion.[7] The applicant also relied on Australian Securities & Investment Commission v John David Rich & Ors.[8]
[7] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 (Paric); Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 (Hancock).
[8] [2005] NSWCA 152 (Rich).
The applicant submitted that Dr Porteous’s opinion alone met the requirement as outlined in Hancock and Rich. This medical expert had explained how he had formed his opinion. It is not a mere ipse dixit. The respondent could not engage but said the report technically did not comply.
The applicant cited the decisions in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[9] and State of New South Wales v Abdul[10] with respect to a claim for consequential conditions.
[9] [2016] NSWWCCPD 23.
[10] [2018] NSWWCCPD 41.
The applicant referred to the decision in Nguyen v Cosmopolitan Homes[11]. He submitted there were numerous contemporaneous records associated with the emergence of cervical symptoms.
[11] [2008] NSWCA 246 (Nguyen).

Respondent

The respondent submitted that there was “quite a big onus” on the applicant. Kooragang was “in play”, but it was a not just a case involving chronology. It was accepted that there was an emergence of clinical symptoms from May 2022 in the cervical spine. It was another thing to demonstrate a causal link. There was a need for proper expert evidence, which was lacking.
The respondent submitted that we start with Awad v Department of Ageing, Disability and Home Care,[12]and the cases discussed therein.
[12] [2008] NSWWCCPD 49 (Awad).
The respondent submitted that its reason for no longer contesting that the applicant had sustained a consequential condition of his right shoulder was that Dr Porteous had the qualifications to provide that evidence, and his evidence satisfied Makita (Australia) Pty Ltd v Sprowles.[13] The respondent compared that evidence with the absence of evidence regarding the applicant’s cervical spine.
[13] [2001] NSWCA 305 (Makita).
The respondent submitted that Dr Porteous’s answer to the question asked of him regarding the consequential condition of the applicant’s cervical spine was “opaque to say the least.” Makita requires that it must be established that the facts on which the opinion is based form a proper basis for the opinion.
The respondent referred to the applicant’s statement, in which it submitted there was nothing about altered posture. The applicant said he had pain in the neck, but not that it had anything to do with pain in the left shoulder. There was nothing in the history recorded by Dr Porteous or in his examination about a change in posture, let alone how it would cause injury. Something was needed to provide a causal link between the left shoulder injury and the change of posture, if it was there.
The respondent submitted that Dr Porteous referred to altered forces throughout the applicant’s cervical spine but asked “where is it the result of the injury to the shoulder causing the altered forces?” We do not know what they were. There was zero assistance in establishing a causal link.
The respondent submitted I would find that the applicant injured his left shoulder, he overused his right arm and overuse led to the condition in his right shoulder and the need for treatment. The applicant had not discharged his onus of establishing that injury to the left shoulder had caused any condition in his neck.
The respondent finally submitted that there should be an award for the respondent in respect of the claim that the applicant had sustained a consequential condition of his neck.

SUMMARY

In order to establish that he has sustained a consequential condition of his cervical spine, the applicant does not have to satisfy the requirements of ss 4 or 9A of the 1987 Act.
The applicant has referred to numerous decisions that confirm he need only establish on the balance of probabilities that the condition of his cervical spine resulted from the accepted injury to his left shoulder.
Both parties referred to the decision in Kooragang, in which Kirby P referred to the “commonsense evaluation” of the causal chain.
The applicant relied not only on the report of independent medical examiner Dr Porteous, but also on his own evidence, and that of his treating practitioners.
The respondent did not have evidence from an independent medical examiner that addressed the applicant’s claim to have sustained a consequential condition of his cervical spine. However, it was critical of Dr Porteous’s evidence, and submitted that it did not meet the requirements of Makita. The applicant, of course, bears the onus.
The respondent referred to the discussion of the case law by Deputy President Roche in Awad.
Roche DP said (at [33]-[35]):
“…assuming that Drs Mahony and Huynh did provide the opinions suggested by the Arbitrator, the Arbitrator felt that neither doctor explained the mechanism by which Mr Awad’s work substantially contributed to his injury and, on the application of the principles in South Western Sydney Area Health Service v Edmonds[14] , the mere expression of opinion by a doctor is not itself sufficient to find for a worker. This conclusion is consistent with the principles discussed by the Court of Appeal in Edmonds and discloses no error.
The weight to be attached to a bare conclusion expressed by an expert was considered by the Court of Appeal in Makita…and in Hevi Lift (PNG) Ltd v Etherington.[15] In Makita, Heydon JA (as he then was) referred to and applied the principles set out in Davie v the Lord Provost, Magistrates and Councillors of the City of Edinburgh[16] at 39-40 where Lord President Cooper said:
‘…the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
Heydon JA added at [85] that:
‘…so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’ and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.’”
[14] [2007] NSWCA 16; (2007) 4 DDCR 421.
[15] [2005] NSWCA 42 (Hevi Lift).
[16] (1953) SC 34.
In Hevi Lift, McColl JA said (at [84]):
“It has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it…”
The applicant maintained that there was a “fair climate” for the opinion. The reference to a “fair climate” is a reference to the decision in Paric.
The history recorded by an expert does not have to correspond with complete precision to the proposition on which the opinion is based. It is a question of whether the hypothetical material put to the witness represents a “fair climate” for the opinions they expressed.
Beazley JA (as her Excellency then was) (Giles and Tobias JJA agreeing) said in Hancock (at [82]) there could be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. However, even in evidence-based jurisdictions, “that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report.”
Her Honour added (at [83]) that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight.”
What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (at [85]).
Spigelman CJ (Giles and Ipp JJA agreeing) said in Rich (at [170]):
“An expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated.”
Experts are able to use their general experience and knowledge as experts, even though it is not stated in their reports.
I have noted above the documents reviewed by Dr Porteous, and the history recorded by him. He also examined Mr De Giusti.
The applicant has given evidence that since the injury, he had protected his left shoulder “with every part of his body”, placing pressure on parts of his body that included his neck. His sleeping posture, and the necessity to sit or lie down constantly, had also placed pressure on his back and neck. The applicant’s ongoing problems with his left shoulder are well-documented.
Dr Narenthiran recorded symptoms in the applicant’s cervical spine in July 2022, present for eight months, worse since May 2022.
Ms Urquhart recorded symptoms in the applicant’s neck and recommended a cervical spine MRI.
The applicant complained to Mr Parrish and Mr Khalil of neck pain, and Mr Khalil opined as to why increased stress was being placed on his neck.
Dr Porteous is an occupational physician. He is in my view entitled to draw on his “entire body of experience”, and his report must be read with the other evidence.
Dr Porteous was asked whether the condition of the applicant’s cervical spine was caused or aggravated by his left shoulder condition. He referred to the “altered posture and altered forces” in the applicant’s cervical spine. This is consistent with the applicant’s evidence of protecting his left shoulder, “placing pressure” on his neck.

Dr Porteous opined that the consequential condition of the applicant’s cervical spine was known to occur (and he was entitled to draw on his experience in this regard) and considered the timeline in coming to his opinion.
I accept the evidence of Dr Porteous. In my view, there was a “fair climate” for the expression of his opinion.
In Kooragang, the Court of Appeal held that the issue of causation must be determined in each case on its own facts. What is required is a “commonsense evaluation” of the causal chain, determined on the basis of the evidence, including expert opinions. The question to be asked is “whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
In Nguyen, the Court of Appeal (McDougall J; McColl JA and Bell JA agreeing), said (at [55]):
“The position may be summarised as follows:
(1)A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
Having considered the evidence as to the “causal chain”, I am satisfied on the balance of probabilities that the applicant has sustained a consequential condition of his cervical spine as a result of the injury to his left shoulder on 8 October 2020; and I therefore make that determination.
The applicant sought a general order for medical expenses pursuant to s 60 of the 1987 Act. Those expenses will of course include those that are reasonably necessary as a result of the consequential condition of his cervical spine.
The order is set out in the Certificate of Determination.

[2024] NSWPIC 464

23 August 2024