Dreis v Axis Plumbing NSW Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dreis v Axis Plumbing NSW Group Pty Ltd [2024] NSWPIC 598
APPLICANT:	David Dreis
RESPONDENT:	Axis Plumbing NSW Group Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	25 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66; accepted injury to right shoulder on 4 June 2019 and consequential injury to left shoulder; alleged injury to cervical spine disputed; Held – the applicant sustained an aggravation of previously asymptomatic degenerative cervical spondylosis in the course of employment with the employment being the main contributing factor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an aggravation of his cervical spine disease as a result of the injury on 4 June 2019 pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. The Commission orders: 1. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows; Date of injury: 4 June 2019 Body systems/parts: right upper extremity (shoulder); left upper extremity (shoulder), and cervical spine. Method of assessment: whole person impairment. 2. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the Reply and attached documents, and the Application to Admit Late Documents dated 29 August 2024 and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant Mr David Dreis was employed by the respondent Axis Plumbing NSW Group Pty Ltd as a construction plumber.
At the time of his injury on 4 June 2019 he was working on a major building site in the Sydney central business district. While lying on the ground he attempted to remove a pump from a retention tank by pulling on a chain attached to the pump. He felt sudden pain in his right shoulder, the right side of his chest, the right side of his body and he alleges in his neck. He immediately reported the injury but persisted in working over the following months hoping the symptoms would subside.
Due to ongoing pain the applicant sought medical advice in December 2019 and an ultrasound of his right shoulder revealed a full thickness tear of the supraspinatus tendon and a partial thickness tear of the subscapularis tendon. After a period on light duties the applicant’s employment with the respondent was terminated in June 2020.
Following two unsuccessful right shoulder procedures the applicant continued to experience pain symptoms in his right shoulder and his neck and he developed a consequential left shoulder condition.
The respondent does not dispute the right and left shoulder injuries however notices under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) were issued on 11 May 2022, 22 July 2022 and 19 February 2024 disputing liability for the applicant’s neck injury/condition.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 3 July 2024 claiming lump sum compensation for his right and left shoulder injuries and his cervical spine injury.
The dispute was listed for conciliation conference and arbitration hearing for determination of whether the applicant sustained a cervical spine injury on 4 June 2019.

ISSUE FOR DETERMINATION

The parties agree that the issue that remains in dispute is whether the applicant sustained a cervical spine injury on 4 June 2019 pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing before the Commission in Sydney on 4 October 2024. Mr Luke Morgan appeared for the applicant instructed by Mr Soren Bakic of The Firm Law Group. Mr John Gaitanis appeared for the respondent instructed by Mr Malcolm Griffin of Bartier Perry Lawyers. Ms McCarthy was also present.
During conciliation the applicant’s Application to Admit Late Documents dated
29 August 2024 was admitted into evidence. It was agreed that following a determination of the cervical spine injury dispute the matter is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
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)    ARD and attached documents;
(b)    respondent’s Reply and attached documents, and
(c)    Application to Admit Late Documents (AALD) dated 29 August 2024 and attached documents.

Oral evidence

No application was made to call oral evidence or cross examine any witness.

Applicant’s evidence

The applicant relies on two statements, the first signed on 1 July 2024.
At 16 years of age he started a plumbing apprenticeship working for Masters Plumbers which he completed in January 1993. He then worked for around 20 years as a fully qualified plumber primarily working on construction sites of high-rise buildings in metropolitan Sydney.
The applicant worked for the respondent as a full-time construction site plumber from 2015 and until his injury in June 2019 he worked 20 to 23 hours in overtime per week. His work for the respondent involved heavy manual activity.
On 4 June 2019 the applicant describes extricating a pump from a retention tank located at the base of the building at a large construction site in Sydney. The tank was approximately 5m deep and he estimates the pump weighed between 30kg and 40kg. Intending to lift the pump out of the retention tank, he lay flat on his stomach over an access grid and using his right hand pulled on a chain attached to the pump. He felt a sudden pain in his right shoulder and right side of his chest. He was unable to move his right shoulder and arm due to the intense pain. He stopped work and reported the injuries to his employer.
The applicant describes the treatment he has received from Dr Edward Lurie, general practitioner nominated by his employer, and Dr Dachuan Guo, general practitioner. Dr Guo referred him for an ultrasound on 18 December 2019 which showed the extent of the injuries to his right shoulder. The applicant continued to struggle to work and was placed on light duties in January 2020. He requested a return to pre-injury duties as he understood his employment would not continue otherwise.
Due to ongoing pain in his right shoulder and neck the applicant struggled to cope with the demands and perform his role with the respondent and his employment was terminated in June 2020.
Right shoulder arthroscopic rotator cuff repair and open biceps tenodesis surgery was carried out by Dr Allan Young on 9 December 2020 however there was no significant improvement.
Arthroscopic subacromial decompression and distal clavicle excision was carried out by
Dr Young on 8 December 2021. The applicant’s right shoulder symptoms improved slightly however he continued to suffer ongoing symptoms of pain, stiffness and discomfort to his right shoulder and cervical spine.
The applicant has had ongoing symptoms in his right shoulder and cervical spine from the date of the injury on 4 June 2019. The pain to his cervical spine has increased. He intermittently experiences pins and needles and numbness radiating down his right upper limb. Due to overcompensation of his right shoulder he suffered worsening pain symptoms in his left shoulder.
Right shoulder and neck pain after June 2019 has restricted the applicant’s daily life and activities, he has no capacity for work, he receives ongoing treatment from Dr Lim, general practitioner, and regularly uses anti-inflammatory tablets and analgesia.
In his further statement of 23 August 2024 the applicant describes the injury on 4 June 2019 to his right shoulder as traumatic. He was lying on his stomach leaning over the pit with his right arm at full stretch while straining his neck attempting to pull the pump out. He felt immediate pain in the area of his right shoulder, neck and down his arm. The pain in his neck and shoulder was constant however he thought it was all related to the right shoulder and one injury.
The primary focus of his treatment and his concern was in relation to his right shoulder surgery. The applicant was taking painkillers and this masked his cervical spine pain. He complained of neck pain including to Mr Chu, occupational therapist, in December 2020.
After the first right shoulder surgery the applicant was in a sling and did not move his neck in various directions due to pain. He complained of neck pain to his physiotherapist after both right shoulder surgeries although the focus was on treating the right shoulder.
As he did not feel he was getting appropriate treatment, especially after his left shoulder began to give him problems as well, he changed treatment to Dr Ben Dickson and Dr Eric Lim, general practitioners. He was referred to Dr Peter Khong, neurosurgeon, for investigation of his neck symptoms.
The applicant is currently on a disability pension and unable to engage in any form of employment. He has suffered psychologically and receives treatment from Dr Ereve, psychiatrist, and a psychologist.
On about 18 March 2023 the applicant was involved in a single motor vehicle accident but did not suffer any injury to his neck or shoulders.

Medical evidence

The applicant relies on the report of Dr Dias, occupational physician, of 24 February 2023. The doctor refers to a history of cervical spine symptoms since the 2019 injury, becoming increasingly pronounced in the last one to two years.
In relation to the cervical spine, Dr Dias diagnoses a persistent aggravation of previously asymptomatic degenerative cervical spondylosis, secondary to an acute musculoligamentous strain. The employment with the respondent is the main contributing factor.
In a supplementary report of 6 April 2023 Dr Dias assesses the applicant’s whole person impairment of the neck and both shoulders as totalling 16%.
Medical records and reports relating to the investigation and treatment of the applicant’s right shoulder injury are attached to the ARD, including the reports of Dr Young between
13 October 2020 and 17 December 2021. The applicant’s right shoulder injury is not in dispute.
The Home & Activities of Daily Living Assessment Report of Mr Herman Chu dated
31 December 2020 includes the comment that the applicant’s right shoulder symptoms are aggravated by neck rotation and flexion/extension.
Mr Samuel Liney, physiotherapist, treated the applicant’s right shoulder from March 2021. On 9 June 2021 Mr Liney reports treatment has been focused on increasing strength and range of motion of the right shoulder as well as decreasing shoulder and neck pain. The applicant also reports he has started getting pain in his neck and sometimes some headaches.
Dr Eric Lim, general practitioner, provides a medico legal report dated 8 February 2022. This includes the diagnosis of cervical spine strain and a history of neck and right shoulder injuries after the applicant lifted a pump from an underwater tank. Symptomatology includes neck pain and a referral is made for an MRI cervical spine. The doctor states that work was the main contributing factor for the injury including the neck injury.
An MRI of the cervical spine was carried out on 21 February 2022. The report comments that there are multiple levels of minor neural exit foraminal narrowing greatest at the right C5/6 level and left C6/7 level with possible associated exiting nerve root irritation, with a possible underlying fracture line.
On 9 March 2022 Dr Peter Khong, neurosurgeon, diagnoses neck pain due to musculoligamentous strain and exacerbation of pre-existing degenerative changes. The doctor’s view is that this is partially from the original accident but also due to altered postures related to the applicant’s shoulder surgery.
The applicant is referred for a CT cervical spine and the report of 4 April 2022 concludes there are degenerative changes, greatest at the left C4/5 facet joint, with no evidence of nerve impingement and no instability.
A whole body bone scan on 4 April 2022 shows active arthritis primarily at the left C4/5 facet joint.
On 6 May 2022 Dr Khong recommends ongoing non-operative management with physiotherapy for the applicant’s neck.
Mr Jordan Baker, physiotherapist, makes Allied health recovery requests between
20 May 2022 and 8 November 2022 that note the applicant has difficulty with parking the car and reversing (due to repetitive turning motion) and difficulty with turning his head and reversing.
Mr Baker’s initial physiotherapy report of 23 May 2022 notes the referral is for treatment of right shoulder pain and that the applicant reports current neck pain.
Mr Baker’s report of 22 February 2023 refers to the applicant continuing to be limited by ongoing high levels of pain in the shoulder and neck.
Dr David Lieu, treating orthopaedic surgeon, reports on 10 June 2022 that the applicant has significant persisting pain in his right shoulder and makes a referral for a progress MRI arthrogram to determine future management. In his report to the insurer of 24 June 2022
Dr Lieu notes he had not seen any cervical spine imaging to date and it was not discussed or presented in the initial consultation.
Dr Peter Young, psychiatrist, provides a report to the insurer on 13 October 2022. The reports of Dr Ereve, psychiatrist, date from 23 March 2023 to 12 October 2023.
Medical records of Dr Lurie of the George Street Medical Centre include the assessment by Mr Michael Duong, exercise physiologist, on 20 September 2021 of the applicant’s cervical range of motion. On 2 November 2021 Mr Duong notes treatment will continue to improve mobility in his neck and shoulder.
Dr Lurie’s Certificates of Capacity refer to right rotator cuff repair and triceps tenodesis and depression. Between 10 November 2021 and 4 February 2022 Dr Lurie includes the diagnosis of revision repair of rotator cuff tear.
Workers Doctors medical records include records from 8 February 2022 with the diagnoses of cervical spine strain as well as the right shoulder injury and major depressive disorder.
Records of Mr Liney of Physiofit are attached to the AALD. On 7 June 2021 the applicant complains of neck pain and headaches,[1] on 19 July 2021 the applicant reports he still gets pain in his neck and back, and on 6 September 2021 Mr Liney records that the applicant reports “he is not a doctor so he has no idea and just does what he is told”.[2]
[1] AALD page 11.
[2] AALD page 6.

Respondent’s evidence

The respondent relies on the report of Dr Anil Nair, consultant orthopaedic surgeon, dated
30 June 2022. The applicant presented for assessment of his cervical spine and right shoulder and the doctor notes current symptoms of pain in the right shoulder.
Dr Nair finds clinical and radiological evidence of cervical spondylosis for which employment was not a substantial contributing factor. He opines that “it is hard to envisage how a cervical spine condition would have eventuated”.[3]
[3] Reply page 13.
The doctor finds no evidence of an aggravation of cervical spine disease based on the mechanism described. The stiffness in the cervical spine is not significant and the range of motion would be similar to that in an age-matched cross-section of peers. He was not convinced that symptoms stem from the cervical spine as most of his pain is in the right shoulder region.
In his supplementary report of 3 August 2022 Dr Nair considers the applicant’s bone scan report and comments that the cervical spine condition is degenerative in nature and his opinion is unchanged.
In a further supplementary report of 24 January 2024 Dr Nair re-assesses the applicant and confirms he has clinical and radiological evidence of cervical spondylosis. The medical imaging findings point to this being a degenerative condition and he believes this is not an employment-related condition. Dr Nair provides an assessment of 11% whole person impairment of the right and left shoulders.
Dr Bruce, consultant orthopaedic surgeon, reports to the insurer on 8 October 2020 in relation to the applicant’s right shoulder injury.
The medical records of Dr Lurie dating from 28 September 2005 are attached to the Reply. They include a record made on 21 January 2020 of the incident on 4 June 2019 with the main symptom recorded as pain in the right shoulder.
On 21 July 2020 Dr Lurie notes the applicant had been made redundant and wants to re-open his case, with main symptoms recorded of continual pain and weakness of shoulder.
Investigations and treatment by Dr Young include that the applicant came out of a sling on
8 February 2021 following the first right shoulder surgery. The applicant is prescribed medication for symptoms of depression on 31 March 2021.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are summarised below.

Broadly the applicant submits that the applicant’s circumstances are often seen in this jurisdiction. The applicant was engaged in heavy employment all his life, suffers a frank episode of injury where there is a complaint made at the time of a broad area of pain in and around the right shoulder, investigations are directed by the general practitioner initially, a referral is made to an orthopaedic surgeon, the orthopaedic surgeon looks at the applicant’s right shoulder and operates on the supraspinatus tendon, the applicant does not get much of an outcome from that and goes back to the surgeon.
The surgeon then operates on the shoulder again with little in the way of improvement in the applicant’s overall condition, and it is then attention is taken away from the shoulder to look at whether there is an alternative cause of complaint. Pathology is found in the cervical spine which explains the nature of the applicant’s complaint.
The totality of the evidence shows that in the incident on 4 June 2019 there are essentially two pathological consequences. There was the injury specifically to the right shoulder resulting in a tear of the supraspinatus tendon and there is also an aggravation of a pre-existing spondylitis in the cervical spine, supported by the nature of the injury and the opinion of Dr Dias.
Based on the medical history and the doctors’ opinions the nature of the applicant’s complaint was not confined to the right shoulder. Throughout his reporting to the physiotherapist, to doctors and to independent medical examiners (IMEs) the applicant described a more global sensation in and about his scapular region and also pain radiating down the arm, which has remained the case since the time of the accident.
He had no problems with his right and left shoulders or his neck before the workplace injury. He has been working in heavy physical employment up until the time he was injured without complaint of a cervical problem and it has all been downhill since the injury.
Turning to the IME reports, the history taken by Dr Bruce in his report of October 2020 is that on the date of the incident the applicant felt immediate pain over the entire right shoulder, chest and right upper limb that was so severe he dropped the pump which was eventually removed by two young workers. The applicant describes persistent pain in the deltoid region of the shoulder aggravated by trying to elevate his arm overhead or lifting and carrying weights.

Dr Nair takes a perfunctory history. The doctor accepts longstanding chronic degenerative change with a bone scan recommended but says there is no evidence of an aggravation based on the mechanism described, which may be as a result of the limited history the doctor has recorded.
He then says there is almost certainly pre-existing cervical spine degeneration but he is not convinced the symptoms are stemming from the cervical spine however as most of the pain is in the right shoulder region.
Dr Nair does observe however that there was no evidence of exaggeration, inconsistency, malingering or embellishment on the part of the applicant.
In his supplementary report of 24 January 2024 Dr Nair says;
“[m]y opinion remains the same as that articulated in the earlier reports. The findings on medical imaging of the cervical spine point to a degenerative condition. It is also my point of view that the symptoms in the trapezial region and right upper extremity are nascent from the shoulders in particular the right shoulder.”[4]
[4] Reply page 22.
Dr Nair accepts there are complaints and symptomatology external to the shoulder, but he is of the view that they are not related to the neck but rather stemming from the shoulder itself.
There are the treating opinions of Dr Lim and Dr Khong with the focus of treatment moving from the shoulder to the neck, but from an IME point of view there is the opinion of Dr Dias.
Dr Dias provided a comprehensive report. The doctor details all the clinical material that he had available and recorded a detailed history of the type of work the applicant was doing.
The worker’s description of how this injury happened is reported and Dr Dias then describes what follows; the persistent symptomatology following the surgeries and the identification of the cervical spine issue and the treatment that followed that.
The doctor’s conclusion relative to causation is;
“[a]s a result of the subject accident, Mr Dreis has sustained a persistent aggravation of previously asymptomatic degenerative changes in his cervical spine region (degenerative cervical spondylosis), an aggravation which has persisted through to the present day and is likely to persist on an indefinite basis into the foreseeable future.”[5]
[5] ARD page 18.
The Vocational Assessment Report of 24 September 2020 under the heading ‘Injury History’ includes a very consistent description of the injury, that the applicant could not lift anything afterwards and the pain was “tight when moving”, which he rated as “pretty bad like seven out of 10”.[6]
[6] ARD page 43.
Those complaints are confirmed further in the report, for example he has difficulty twisting back to look and difficulty sleeping because of the pain being there all night, and that is in the middle of 2020.
The Allied health recovery request dated 9 June 2021 of Mr Liney after the first surgery includes complaints in the neck and headaches and also problems with the scapular retraction. The aim of the treatment being provided is to decrease pain levels of the right shoulder and cervical spine.
For 12 months following the injury the applicant is struggling on with work and did not get much in the way of treatment. He is terminated from employment and he starts seeing doctors.
In middle to late 2020 they focus on the shoulder and there are complaints of radiating pain early in July and August to October of 2020. There is then the unsuccessful surgeries and the focus turns to the cervical spine by the end of 2021 and into 2022. There is nothing unusual about this.
There are specific references to the neck and the applicant is not a diagnostician. He relies on medical practitioners to provide insight and recommendations on treatment.
The only contrary voice in the material before the Commission is that of Dr Nair and even his opinion the applicant says is qualified in the way in which he expresses it.
The worker has worked in hard physical employment all his life, there is no evidence of any neck problems prior to the injury and there are problems with his neck now, supported by
Dr Nair and Dr Bruce. There is no reason the applicant would not be accepted rather than to accept as suggested that this has been created out of nothing and there is nothing wrong with the applicant’s cervical spine.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are summarised below.
The respondent submits there is a dearth of evidence in relation to injury to the cervical spine in the contemporaneous notes. There is to be some value based on contemporaneous evidence and that is found in decisions such as Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 (Onassis) and Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 (Watson).
Post litigation some emphasis is placed on a body system or part that has been enlivened by an independent medical examination or by a treating doctor where hitherto there was no evidence of any injury to that body part.
The contemporaneous evidence shows little to no reflection of complaint to the cervical spine.
The respondent submits the contemporaneous evidence should be preferred as opposed to comments that are made by practitioners post litigation.
The applicant’s submission that there are widespread complaints about pain or symptoms in or about the right shoulder area that might not be related to the right shoulder does not equate to an injury to the cervical spine.
This throws doubt on the competency of a practitioner to identify an injury to the cervical spine and that is speculative. That is what the respondent says globally about the danger of the submissions made by the applicant.
The respondent refers to the pre-Dr Lim narrative and the post-Dr Lim narrative that commences on 8 February 2022. The respondent’s submission is that the progenitor of the complaint of injury to the cervical spine is through the auspices of Dr Lim.
The physiotherapy report of Mr Liney of 9 June 2021 dismantles the post-litigation narrative of the applicant, that is, as at 9 June 2021 Mr Liney says the applicant also reports he has started getting pain in his neck and sometimes some headaches.
That contrasts with the applicant’s evidence that from the time of the injury in June 2019 he had sharp pains and problems with his neck.
The comment of Dr Bruce in October 2020 about radiating pain is not in the cervical spine but radiating pain down the arm.
The clinical notes show Dr Lurie has been the applicant’s treating general practitioner from 2005 to 4 February 2022. Dr Lim comes into the equation with his report dated
8 February 2022. For reasons not explained, the applicant shifted from Dr Lurie who he was seeing for over 15 years to Dr Lim.
Dr Lim reports the applicant “initially presented on Tuesday, 8 February 2022, following Neck/R) Shoulder injury(ies), sustained on Tuesday, 4 June 2019”.[7] Under ‘History of Injury’ it is recorded neck and right shoulder injuries after he lifted up a pump from an underwater tank and this is in the setting of years of physical work.
[7] ARD page 100.
Dr Lim has either assumed or imported into the history that the applicant has suffered a neck injury on 4 June 2019.
The applicant does not say in his statement how Dr Lim got involved but litigation has already commenced because the letter is addressed to the applicant’s solicitor. He sees fit to leave his general practitioner of many, many years to go and see Dr Lim.
From 2005 onwards Dr Lurie takes very specific histories.
The history noted on 28 September 2005 is “[s]tepped across open floor tiles. Tiles slipped forward stretching legs yesterday afternoon. Today feels pain in the leg left leg (sic) over the left thigh”.[8] Dr Lurie is capable of taking specific notes and obviously cognisant of what the applicant tells him. There are many instances where Dr Lurie has been quite specific in terms of the history he has taken from the applicant over a number of years.
[8] Reply page 33.
On 21 January 2020 Dr Lurie records “working as a plumber for axis plumbing Lifting a pump with a chain was lying down on 4/6/2019 Felt pain in rt shoulder and rt ribs felt something snap was unable to use shoulder for the rest of the day Did nothing at the time thought woukd [sic] get batter [sic].”[9]
[9] Reply page 35.
On 3 February 2020 the applicant says to Dr Lurie he “wants to close case and return to normal duties says his symptoms have settled”.[10]
[10] Reply page 35.
On 21 July 2020 Dr Lurie notes the applicant has been made redundant by the employer and told there was no work, and he wants to re-open his case related to the shoulder injury.
There is a real dispute on the cervical spine injury because the applicant has never reported the injury to his cervical spine, and it has never been taken as a history by any practitioners.
Until the applicant stopped seeing Dr Lurie there is nothing about the cervical spine.
The clinical records of Physiofit treatment commence in March 2021. The reason for the visit is recorded as physio for recovery from shoulder surgery. In all of the notes taken by Mr Liney, physiotherapist, through to 20 December 2021 there is nothing about the neck.
The only plausible inference or explanation is that is what has been reported to the physiotherapist and he is treating the right shoulder and not the neck itself.
The WorkCover certificate of 21 January 2020 is for a right shoulder complaint. Another certificate refers to the repair of the rotator cuff tear.
Dr Lurie’s report to icare of 28 July 2020 includes that the applicant’s main symptoms are pain with all ranges of motion of the shoulder and weakness of the shoulder. Dr Lurie’s reports go to 1 September 2021 and say nothing at all about the neck.
In relation to the vocational assessment report, clearly the motivation is to understand his injury and look at feasible or suitable employment and the only condition that is recorded is the right shoulder injury.
In Dr Young’s reports from 13 October 2020 to 4 June 2021 there is nothing about the neck.
Mr Liney’s report of 22 March 2021 to Dr Lurie is all about the right shoulder.
The respondent’s submission is that the evidence after February 2022 should not be accepted. All the contemporaneous records show nothing to do with the neck.
Little weight should be given to Dr Lim’s opinion as he has not taken into account the evidence before 2022.
On 8 February 2022 Dr Lim writes to the applicant’s solicitor and icare and says the injuries are to the right shoulder and the neck.
Thereafter machinations occur including on 21 February 2022 the MRI of the cervical spine. There are no MRIs of the cervical spine before that date in the evidence.
Dr Khong is introduced into the proceedings by Dr Lim.
Dr Khong provides a report of 9 March 2022 and the history obtained is “felt immediate pain in the right chest and right arm due to neck and shoulder pain”.[11] Again there is an acceptance that there has been a neck complaint despite the fact that there has been nothing up until that point other than Mr Liney’s note in June 2021 that he started feeling some neck pain.
[11] ARD page 108.
The respondent submits that Dr Khong’s reports should not be accepted.
In his first statement the applicant says;
“I recall that the pump was heavier than I expected when I attempted to pull the chain attached to the pump, and I felt a sudden pain in my right shoulder and right side of my chest. At this time, I was unable to move my right shoulder and arm due to the intensity of the pain.”[12]
[12] ARD page 3.
The respondent submits that there is no mention of neck there. Then the applicant says “I did not have any pre-existing pain or injury to my right or left shoulder and cervical spine prior to my injury on 4 June 2019.”[13]
[13] ARD page 3.
The applicant says he “continued to experience ongoing symptoms of pain in my right shoulder and neck, for several months. I recall that I had hoped these symptoms would subside and that I was worried I may lose my job..”[14]
[14] ARD page 3.
At the same time he is seeing Dr Lurie and Dr Young and nothing is said about the neck. The applicant’s submission is that the focus is on the right shoulder and the neck is ignored, but it is not a plausible explanation in this case as he has opportunities to talk about his neck.
The applicant says after he had the second right shoulder surgery he continued to suffer ongoing symptoms of pain, stiffness and discomfort to his right shoulder and cervical spine, the pain to his cervical spine has increased and he experiences pins and needles and numbness radiating down his right upper limb on an intermittent basis. There is no evidence this is as a result of a frank injury.
In the further statement provided by the applicant he says the injury on 4 June 2019, which he calls traumatic, occurred when he was lying over the pit with his right arm at full stretch while straining his neck attempting to pull the pump out, that the pain was immediate and intense in the cervical spine, and that the pain in the neck and shoulder was always constant. This is implausible in the respondent’s submission.
In an attempt to explain why there have been no complaints he says he was taking painkillers to alleviate his pain and symptoms which masked his cervical spine pain. The respondent’s submission is that is fanciful and implausible, and an attempt to explain why there are no complaints of the cervical spine symptoms.
The only plausible explanation that remains is that the applicant suffered a right shoulder injury and some consequential condition to the left shoulder injury and there has been no injury at all to the cervical spine.
Dr Nair provides the most plausible explanation. He says the applicant sustained a right shoulder partial thickness supraspinatus tear and bursitis, and he had clinical and radiological evidence of cervical spondylosis.
The doctor did not consider employment was related to the cervical spine condition and he says it is hard to envisage how a cervical spine condition would have been created. The MRI findings of 2022 that Dr Lim organised did suggest long standing chronic degenerative changes. He goes on to say there was pre-existing cervical spine degeneration.
This is an attribution of cervical spondylosis to an injury. The applicant is now aged 51 and cervical spondylosis is not rare in middle aged men.
All of the evidence suggests there has been no injury to the neck. The only plausible explanation is the applicant has had pre-existing degenerative changes to the neck and he has had an injury to the right shoulder. That is all he has ever complained about, and that is the only injury together with the consequential condition to the left shoulder that can be found.

FINDINGS AND REASONS

Did the applicant sustain a cervical spine injury on 4 June 2019

It is not in dispute that the applicant sustained a right shoulder injury on 4 June 2019 and developed a consequential left shoulder injury. The issue in dispute is whether he also sustained an injury to his cervical spine.
Section 4(b)(ii) of the 1987 Act defines ‘injury’ as including a ‘disease injury’ meaning the aggravation, acceleration, exacerbation or deterioration of an existing disease 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.
‘Disease’ is a word of very wide import and includes any form of illness.[15] There is no dispute on the evidence that the applicant has an existing disease being degenerative cervical spondylosis.
[15] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
The applicant bears the onus of proving on the balance of probabilities that his cervical spine disease was aggravated in the course of his employment on 4 June 2019 and that the employment was the main contributing factor to the aggravation.
If those components are demonstrated on the evidence, the applicant will have established that he has suffered a ‘disease injury’ and is entitled to workers compensation benefits for that injury.[16]
[16] Taylor v J & D Stephens Pty Ltd [2018] NSWCA 287.
On the basis of all of the evidence I am of the view that the applicant did sustain an injury to his cervical spine on 4 June 2019 being an aggravation of cervical spondylosis, and the employment was the main contributing factor to the aggravation, for the following reasons.
The aggravation of a disease occurs where the symptoms and restrictions emanating from it increase and become more serious to the applicant.[17]
[17] Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 at [17].
The respondent submits that at 51 years of age it would not be rare as a middle-aged man for the applicant to have cervical spondylosis. There is no evidence before the Commission that the applicant’s cervical spine disease was symptomatic prior to the injury on
4 June 2019. The nature of the work he was carrying out on the date of the injury support this, as was submitted.
The applicant’s statement evidence is that he felt a sudden pain in his right shoulder and right side of his chest on that day and he was unable to move his shoulder or right arm. He experienced ongoing pain in his right shoulder and neck following the injury with an increase in pain to his cervical spine.
The applicant’s supplementary statement describes the mechanism of the injury as including that his right arm was at full stretch and he was straining his neck when attempting to pull the pump out of the retention tank.
His evidence is that he continued to suffer ongoing symptoms of pain, stiffness and discomfort to his right shoulder and cervical spine from the date of injury in June 2019 and the pain in his cervical spine has increased.
The history of the applicant’s cervical spine injury in his statement evidence is consistent with the history he provides to Dr Dias, Dr Lim and Dr Khong.
I accept the applicant’s submission that his complaints were not confined to the right shoulder. His statement evidence is that from the date of the injury he has had ongoing symptoms of pain to his cervical spine that have increased, and pins and needles and numbness radiating down his right upper limb on an intermittent basis.
Dr Bruce reports on 8 October 2020 that the applicant experienced immediate pain over his entire right shoulder, chest and right upper limb, and he has pain in the right deltoid region radiating down to the upper right arm. Dr Nair refers to pain in the trapezial pain.
The respondent submits that complaints of widespread pain not confined to the shoulder do not equate to finding an injury to the cervical spine however, and I accept that submission in general.
The respondent’s submission is that there is a dearth of evidence in relation to injury to the cervical spine in the contemporaneous notes, and in particular prior to 8 February 2022 when the applicant first consults Dr Lim.
There are no medical records available of a general practitioner the applicant consulted at the time of the injury in June 2019 referred to in his statement evidence. There are no records before the Commission of Dr Guo, although the right shoulder ultrasound report of 17 December 2019 that is in evidence is addressed to him.
Dr Lurie records no cervical spine symptoms on 21 January 2020 when the applicant consults him six months after the injury. The respondent submits that Dr Lurie takes specific notes of the applicant’s 2005 work related injuries, and while the doctor takes notes on
21 January 2020 in relation to the June 2019 injury he does not record cervical spine symptoms.
I agree with the applicant’s submission that caution should be exercised when relying on clinical records of busy doctors, particularly in circumstances where their concern is with the treatment or impact of a frank injury.[18]
[18] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35], NSW Police Force v Winter [2011] NSWCA 330 at [73].

Dr Lurie’s Certificates of Capacity and the reports of Dr Young and Dr Lieu include no record of cervical spine symptoms. The respondent submits the applicant had the opportunity to report his cervical spine symptoms but did not do so.
An explanation for the scarcity of contemporaneous records of cervical spine symptoms is provided in the applicant’s statement evidence.
He refers to immediate and intense pain in his cervical spine, trapezius on 4 June 2019 that would travel up into his head and cause headaches and also down into his arms, and which he thought was all related to the shoulder and one injury.
A primary focus was on treatment of his right shoulder including surgery, and painkillers masked his cervical pain.
There is medical evidence of a focus on treatment of the right shoulder injury from 2020 until after the second shoulder surgery in December 2021.
Dr Lurie records on 21 January 2020 that the applicant’s “main symptom is pain rt shoulder,”[19] and on 21 July 2020 that his main symptoms are “continual pain and weakness of shoulder”.[20]
[19] Reply page 35.
[20] Reply page 35.
The applicant was referred by Dr Lurie to Dr Young, a shoulder specialist, “regarding his right shoulder problem”.[21] The applicant then had two unsuccessful surgeries to his right shoulder.
[21] ARD page 63.
Mr Liney notes the reason for the applicant’s initial visit on 17 March 2021 is “[p]hysio to recover from shoulder surgery”.[22]
[22] AALD page 16.
With regard to medication, there is evidence of the applicant’s daily reliance on opiate and codeine-based pain medication, and on medications prescribed for a psychological condition.
The applicant’s explanation for a scarcity of recorded complaints of cervical spine symptoms during this period is in my view plausible.
I do not accept the respondent’s submission that there are no contemporaneous notes of cervical spine symptoms prior to 8 February 2022.
Mr Chu records symptoms of pain and stiffness of the anterior and posterior aspect of the right shoulder and the anterior aspect of right biceps on 31 December 2020, aggravated by neck rotation and flexion/extension.[23]
[23] ARD page 69.
Mr Liney reports on 9 June 2021 that treatment has been focused on increasing strength and range of motion of the right shoulder as well as decreasing shoulder and neck pain, and that the applicant also reports he has started getting pain in his neck and sometimes some headaches.[24]
[24] ARD page 88.
Mr Liney’s records on 7 June 2021 note that the applicant complains of neck pain and headaches,[25] and on 19 July 2021 the applicant reports he still gets pain in his neck and back.[26]
[25] AALD page 11.
[26] AALD page 9.
On 20 September 2021 Mr Michael Duong, exercise physiologist, includes the right shoulder and the neck as injured areas, with the neck having ongoing aches and trapezius tightness bilaterally, and stiffness during general range of motion. He measures the range of motion of the cervical spine and both shoulders.[27] The aim of treatment is to achieve full shoulder and neck range of motion.
[27] ARD page 184.
On 2 November 2021 Mr Duong measures the applicant’s cervical range of motion, again listing the neck as an injured area, and says treatment “will continue to improve the mobility in his neck and shoulder”.[28]
[28] ARD page 191.
I agree with the respondent’s submission that caution must be exercised in preferring a present recollection of an event to a contemporary record as discussed in Onassis.[29]
[29] Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at [431].
I am of the view that in the circumstances of this case there are some contemporaneous records that support the applicant’s statement evidence regarding his cervical spine symptoms.
The respondent’s submission is that particularly where disputes or litigation intervene there may be increased fallibility with the passage of time as observed in Watson.[30] In my view the time between the injury and the applicant’s statement evidence does not detract from his evidence which finds support in other evidence before the Commission referred to above.
[30] Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315.
I note Dr Nair reports the applicant was forthright with no evidence of exaggeration, inconsistency, malingering or embellishment.[31] Dr Bruce describes the applicant as a straightforward historian with no appearance of exaggeration of symptoms or signs.[32]
[31] Reply page 15.
[32] Reply page 28.
I accept the applicant’s statement evidence that he has experienced cervical spine pain since the injury on 4 June 2019.
The respondent submits emphasis may be placed post litigation on a body system or part that has been enlivened by an independent or treating doctor.
I have not accepted the respondent’s submission that the applicant did not report the cervical spine injury at all before he consulted Dr Lim in February 2022 as discussed above.
Dr Lim is not in my view the progenitor of the complaint of injury to the cervical spine, and he has not assumed or imported into the history that the applicant suffered a neck injury on
4 June 2019, noting the complaints made by the applicant of cervical spine symptoms referred to above.
A submission is made by the respondent that there is no explanation of the reason for the applicant changing general practitioners from Dr Lurie to Dr Lim, which I also do not accept.
The applicant’s statement evidence is that he was directed by the respondent’s site safety officer to the George Street Medical Centre and Dr Lurie.
The applicant’s statement evidence is that Dr Lurie was not his general practitioner prior to 2019, although records show he consulted Dr Lurie in 2005 for separate work-related incidents while on a different construction site in the city. He did not consult Dr Lurie between 2005 and 2020, he had regular doctors at Hammondville Medical Centre prior to 2019 and he consulted Dr Guo at Ashfield in December 2019.
The applicant’s statement evidence is that after the second surgery he did not feel he was getting appropriate treatment, especially after the left shoulder began to give him problems as well, and this is the reason he changed general practitioners.
The submission made by the applicant that once the second right shoulder surgery in December 2021 failed to alleviate the applicant’s pain symptoms attention was drawn to investigating the neck is consistent with the evidence.
The treating medical evidence from February 2022 supports a finding that the applicant sustained a cervical spine injury as a result of the incident on 4 June 2019.
Dr Lim diagnoses cervical spine strain from the injury in 2019 and says the employment was the main contributing factor. Dr Lim refers the applicant for an MRI and then to Dr Khong.
Dr Khong arranges for a cervical spine CT scan to be carried out which finds degenerative changes, and the doctor arranges a whole body scan.
I accept Dr Khong’s opinion that the applicant felt neck and shoulder pain as a result of the injury in 2019, consistent with the applicant’s statement evidence which I have accepted.
Dr Dias’ opinion is that as a result of the incident on 4 June 2019 the applicant has sustained a persistent aggravation of previously asymptomatic degenerative changes in his cervical spine region.
Dr Nair opines that it is hard to envisage how the neck injury would have eventuated and that there was no evidence of an aggravation of the cervical spine condition based on the mechanism described.
I agree with the submission made by the applicant that the history taken by Dr Nair in 2022 is brief. Dr Nair does not appear to have had the benefit of a more detailed description of the mechanism of injury and I do not accept his opinion on this issue.
Dr Nair is not convinced that the applicant’s cervical symptoms stem from the cervical spine as most pain is in the right shoulder region. He refers to pain and symptoms in the trapezial region and right upper extremity as being nascent from the shoulders, in particular the right shoulder.
I prefer the opinion of Dr Dias who reviews extensive documents, takes a detailed history of the applicant’s injury, carries out an examination of the cervical spine and forms the view that the applicant sustained a cervical spine injury as a result of the injury on 4 June 2019.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain.[33] A commonsense evaluation of the causal chain in this case results in a finding that the applicant aggravated his cervical spine disease on 4 June 2019 while lying flat on the ground attempting to lift a pump out of a retention tank.
[33] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
I am persuaded on the basis of the whole of the evidence that on the balance of probabilities the applicant sustained a cervical spine injury as a result of the incident on 4 June 2019, noting there is no evidence of an acceptable alternative cause.[34]

SUMMARY
[34] Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55] and [63].

The applicant sustained an aggravation of his cervical spine disease as a result of the injury on 4 June 2019 pursuant to s 4(b)(ii) of the 1987 Act.
The matter is to be remitted to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment of whole person impairment of the right upper extremity (shoulder), the left upper extremity (shoulder) and the cervical spine.

[2024] NSWPIC 598

25 October 2024