El Badaoui v Halliday Engineering Pty Ltd
[2021] NSWPIC 219
•30 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | El Badaoui v Halliday Engineering Pty Ltd [2021] NSWPIC 219 |
| APPLICANT: | Marwan Khaled El Badaoui |
| RESPONDENT: | Halliday Engineering Pty Ltd |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 30 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for lump sum compensation for permanent impairment pursuant to section 66 of the 1987 Act; applicant had accepted physical injury to cervical spine and lumbar spine; whether pursuant to section 4(a) of the 1987 Act the applicant sustained injury to his left and right upper extremities (shoulders) in the course of his employment; Held – pursuant to section 4(a) of the 1987 Act the applicant sustained injury to his left and right upper extremities (shoulders) in the course of his employment; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment in relation to the applicant’s cervical spine, lumbar spine and left and right upper extremities (shoulders). |
| DETERMINATIONS MADE: | 1. Pursuant to section 4(a) of the Workers Compensation Act 1987 the applicant sustained injury to his left and right upper extremities (shoulders) in the course of his employment with the respondent on 29 April 2019. 2. The matter is remitted to the President for referral to a Medical Assessor (MA) for assessment as follows: Date of injury: 29 April 2019 Body parts: Cervical Spine, Lumbar Spine, Right and Left Upper Extremities (Shoulders) Method: Whole Person Impairment 3. The materials to be referred to the MA are to include: (a) Application to Resolve a Dispute and attached documents, and (b) Reply to Application to Resolve a Dispute and attached documents. 4. The matter be placed on the Medical Assessment Pending List. |
STATEMENT OF REASONS
BACKGROUND
Mr Marwan Khaled El Badaoui (the applicant) claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for permanent impairment from injury to his cervical spine, lumbar spine and right and left upper extremities sustained in the course of his employment with Halliday Engineering Pty Ltd (the respondent) on 29 April 2019.
The applicant made a claim for compensation by letter dated 7 July 2020.
By notice dated 21 August 2020, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent disputed the applicant’s entitlement to compensation for permanent impairment on the basis that it did not accept that the applicant sustained injury to either upper extremity in the course of employment. Whilst the respondent accepted liability for injury to the applicant’s cervical spine and lumbar spine, it disputed entitlement to compensation for permanent impairment on the basis that the impairment assessment for the cervical and lumbar spines combined was not greater than 10% Whole Person Impairment (WPI).
By notice dated 29 September 2020, issued pursuant to s 78 of the 1998 Act, the respondent maintained its position.
The applicant filed an Application to Resolve a Dispute (ARD) on 9 April 2021.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute in relation to the applicant’s claim for lump sum compensation pursuant to s 66(1) of the 1987 Act:
(a) whether there was injury to the applicant’s right upper extremity and left upper extremity which may give rise to liability for a claim for lump sum compensation under s 66(1) of the 1987 Act, and
(b) determination of WPI for injury to the applicant’s cervical spine, lumbar spine and (subject to determination in relation to liability) the applicant’s right upper extremity and left upper extremity.
PROCEDURE BEFORE THE COMMISSION
At a hearing on 27 May 2021, the applicant was represented by Mr Richard Petrie, Counsel, instructed by Ms Premilla Dulichan, Solicitor, of PK Simpson & Co. The respondent was represented by Mr Tony Baker, Counsel, instructed by Ms Jenny Mitchell, Solicitor, of Sparke Helmore Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply to ARD and attached documents.
Oral evidence
No oral evidence was given.
SUBMISSIONS
Oral submissions were made by both counsel.
Both counsel referred to various parts of the evidence.
Submissions of applicant’s counsel
The applicant’s counsel submitted that the Commission should be satisfied on the evidence that the applicant injured his shoulders as a result of his reported work injury on 29 April 2019. The applicant’s counsel submitted that the Commission should be persuaded by the applicant’s description of the work injury and the circumstances in which it occurred and also by the records of the applicant’s treating practitioners which evidence a mechanism for injury reported by the applicant and that the applicant complained of and was treated for shoulder injury relatively soon after the injury on 29 April 2019 consistent with that injury.
The applicant’s counsel submitted that the Commission should prefer the applicant’s medical evidence to that of the respondent. The Commission should not accept the opinion of Dr Smith for the reason that his opinion apparently changed without any sound basis for doing so.
Submissions of respondent’s counsel
The respondent’s counsel referred in detail to the evidence and submitted that the evidence overwhelmingly supports a finding that the applicant’s pain and other symptoms in his upper extremities developed in the period after the reported injury and were a consequence of aggravation of significant degenerative changes in his neck and spine rather than the reported injury.
The respondent’s counsel submitted that I should prefer the respondent’s medical evidence.
Submissions of applicant’s counsel in reply
In reply, the applicant’s counsel submitted that the MRI evidence demonstrated physical changes which were not apparently considered by Dr Tadros.
FINDINGS AND REASONS
It is clear from the ARD that the applicant is relying on an injury under s 4(a) of the 1987 Act, being an injury that occurred on 29 April 2019.
The critical question to be determined is whether there was injury under s 4(a) of the 1987 Act.
The ‘nature of the injury’ and the issue of causation are matters for the Commission to determine: Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335, Roche DP (the decision was overturned on appeal but not on this procedural point).
In order to determine whether the applicant has discharged his onus of proof and established that he injured both of his shoulders on 29 April 2019, it is necessary to consider the evidence and submissions pertaining to the following matters:
(a) mechanism of injury;
(b) treating medical evidence, and
(c) competing expert opinions.
Mechanism of injury
The applicant’s evidence is that on 29 April 2019, he performed his work duties as a boilermaker and welder on a naval supply ship. He worked in a very confined area below deck and stood above head height on an “A” frame ladder as he welded brackets for a cable tray to the ceiling with an electric torch welder. With his left hand, he held the bracket that had to be welded, and pressed that against the ceiling. With his right hand, he held the welder which weighted 12 kgs and he also lifted the weight of an electric cable which trailed to the floor. Due to the narrow area where he was welding, he had to twist his body to reach the ceiling where he had to weld. As he was reaching up and twisting, he suffered extreme pain in his neck, shoulders and back. The pain made him start to feel dizzy, so he stopped work and descended from the ladder. He ceased work and reported the injury to his supervisor. He was driven to the depot and later went home. The following day, the applicant consulted his general practitioner, Dr Tadros.
The following day, on 30 April 2018, the applicant consulted Dr Tadros in relation to the injury. Dr Tadros’ handwritten clinical notes are partly illegible but appear to note that the applicant reported that he “was at work yesterday was trying to do a job. ‘High’… felt back pain…”. Dr Tadros’ clinical notes appear generally consistent with the applicant’s evidence in relation to the injury, but do not appear to contain any reference to the applicant experiencing shoulder pain.
Between 6 May 2019 and 30 October 2019, Dr Tadros signed a number of certificates of capacity which stated that the applicant had “back, neck right & left shoulder injuries”. In a certificate of capacity which appears to be dated 6 May 2019, Dr Tadros stated in response to a question of how is the injury related to work: “While working on 29/04/2019, Mr El Badaoui stretched his body to reach a high job and felt pain in the back and later in his neck and both shoulders”.
On 15 May 2019, the applicant’s physiotherapist noted that the applicant reported an acute twisting injury and described that he was “twisting and reaching to work on object above shoulder height, in rotating to get into this position” and “felt a sudden shooting pain from hips to neck and shoulders”.
I note that the injury to the applicant’s cervical spine and lumbar spine arising from the applicant’s work on 29 April 2019 is not in dispute. There is no challenge to the applicant’s evidence in relation to the general circumstances of his alleged work injury on 29 April 2019. The applicant’s evidence in relation to the mechanism of injury is generally consistent with his reports of the circumstances of the injury which were recorded by Dr Tadros, the physiotherapist, Dr Maniam, Dr Smith, Dr Stephenson, Dr Singh and Dr Soo.
On that basis, I accept that on 29 April 2019, the applicant was engaged in work welding a bracket to the ceiling below deck on a naval supply ship. He was working on a ladder in a confined space and was required to reach up and twist as he held the welding equipment and bracket and pressed them to the ceiling.
On the basis of the evidence, I conclude that the applicant’s work on 29 April 2019, which included working overhead in the manner described above, was a mechanism of injury which could cause injury to both of the applicant’s shoulders.
In order to determine whether that mechanism of injury did in fact cause injury to the applicant’s shoulders, it is necessary to consider the medical evidence in detail.
Treating medical evidence
As noted above, on 30 April 2019, the applicant consulted Dr Tadros in relation to the alleged injury on 29 April 2019. Dr Tadros’ handwritten clinical notes are partly illegible and difficult to read but appear to note that at the time of the alleged injury the applicant felt back pain. Dr Tadros’ clinical notes do not appear to contain any reference to the applicant experiencing shoulder pain. The respondent’s counsel submitted that Dr Tadros’ notes include the words “a long history of neck pain”, which is inconsistent with the applicant’s evidence that he had no significant history of pain or injury. Although Dr Tadros’ handwriting is somewhat difficult to decipher, I am prepared to accept the likelihood that the note included the words “a long history of neck pain”. However, I note that another copy of Dr Tadros’ notes of his consultation with the applicant on 30 April 2018 (at ARD page 178) also includes additional handwriting next to those words, which states “Misunderstanding He said he never had neck problems before”. The additional handwriting appears to be the same as the original handwriting and I assume it was also made by Dr Tadros although it is not clear when or the circumstances in which it was made.
As noted above, between 6 May 2019 and 30 October 2019, Dr Tadros signed a number of certificates of capacity which stated that the applicant had “back, neck right & left shoulder injuries”. In a certificate of capacity which appears to be dated 6 May 2019, Dr Tadros stated in response to a question of how is the injury related to work: “While working on 29/04/2019, Mr El Badaoui stretched his body to reach a high job and felt pain in the back and later in his neck and both shoulders”. Dr Tadros stated in response to request to detail any relevant pre-existing factors: “Previous back and neck pain but has been well for the past few years working full time as a welder”.
The applicant was referred for x-rays of his neck and the thoracic and lumbar spine which was undertaken on 2 May 2019. The relevant radiology report stated:
“XRAY CERVICAL SPINE
Normal lordotic curve is seen. All cervical vertebrae are normal. There is no fracture detected.
Degenerative changes are seen involving C4/5 and C5/6 levels showing reduced disc height, endplate sclerosis and osteophyte formation.
There is mild impingement detected in right neural foramina at C4/5 level. MRI cervical spine suggested.
There is no cervical rib. Atlanto axial articulation appears normal.XRAY THROACOLUMBAR SPINE
All thoracic and lumbar vertebrae appear normal and there is no fracture seen. Bone density appears normal.
All thoracic intervertebral discs are of normal hot. There is no disc height reduction seen. The pedicles are intact. The paraspinal areas are normal.
There are mild degenerative changes seen involving L5/S1 level showing reduced disc height and endplate sclerosis. There is facet joint arthropathy at L4/5 and ?5/S1 levels.
There is mild scoliosis in lumbar vertebra with convexity to the right side.
the the pedicles are intact. The paraspinal areas are normal.”
The applicant attended Dr Tadros again on 2 May 2019. Dr Tadros’ clinical notes in respect of that attendance indicate that the applicant reported that he “still has neck and back pain”. Dr Tadros’ clinical notes are somewhat illegible but also apparently states right “shoulder” although in that context there also appears to be the word “cystic” amongst other words. It is not immediately clear from the notes what is the relevance of the reference to “shoulder” and it is not obvious that the applicant experienced pain in his shoulder at that time.
The applicant was referred for MRI of the low back and the thoracic spine which was undertaken on 28 May 2019.
Dr Tadros’ clinical notes refer to the applicant’s attendance on a date which is apparently 6 May 2019. The clinical note apparently states “Back pain radiates to left thigh down to left foot pain in the shoulders L > R”. This is the first clear independent record of the applicant reporting pain in his left and right shoulders.
The applicant again attended Dr Tadros during May 2019 on dates which included 6 and 13 May 2019, when Dr Tadros noted that the applicant’s pain was “still the same”.
Thereafter, Dr Tadros’ clinical notes regularly noted that the applicant reported pain in his left and right shoulders in addition to his neck and back pain. At times, the notes referred to “radiating” pain.
The applicant was referred to a physiotherapist for treatment.
On 15 May 2019, the applicant’s physiotherapist assessed that the applicant had restricted range of movement and pain in his cervical spine, thoracic spine and particularly in his lumbar spine. Further, the physiotherapist noted that the applicant’s shoulders were “restricted in all directions, pain limited, describes ache from neck to GHJ Extremely TOP across back and sh jt/upper arm (including light pressure)”. The physiotherapist report apparently noted that the applicant reported a previous injury in 2011 where he fell from a 3 m ladder and stated that the applicant did not want to divulge info regarding this incident however assures he did not acquire any lasting injuries.
On 17 May 2019, the applicant’s physiotherapist noted that the applicant reported poor sleep and pain affecting his neck, back and shoulders.
On 17 May 2019, Dr Tadros’ clinical notes stated “pain radiating to neck shoulders and down his back”.
On 23 May 2019, the applicant’s physiotherapist noted that the applicant reported an “acute twisting injury” about three weeks prior and that the applicant had a “shooting pain sensation starting at neck and reaching lower back and shoulders”.
Dr Tadros referred the applicant to Dr Maniam.
Dr Maniam’s clinical notes dated 23 May 2019, noted that the applicant reported that the applicant was injured at work whilst welding a bracket in a confined space and twisting his spine and at the time of the injury he felt a “surge of pain – th spine and shoulders”.
Dr Maniam’s clinical notes between 23 May 2019 and February 2020 reported that the applicant felt ongoing neck, spine and shoulder pain.
The applicant was referred for medical imaging of his cervical spine and lumbar spine which was undertaken on 28 May 2019. A medical imaging report noted in relation to MRI of the cervical spine “broad based disc prolapse at C4/5 level, along with bilateral facet joint arthropathy causing bilateral neural foraminal narrowing and compression upon both C5 nerve roots” and “broad based disc osteophyte complex at C5/6 level causing bilateral neural foraminal narrowing and compression upon the exiting C6 nerve roots”. Further, a medical imaging report noted in relation to MRI of the lumbar spine:
“There is preservation of vertebral body alignment and spinal curvature. The marrow returns normal signal. The spinal canal is capacious throughout. The thoracic cord outlines normally. There is a mild disc bulge at T9/10 slightly indenting the anterior aspect of the thecal sac without compressing the cord. There is also a mild disc bulge at T3/4, also slightly indenting the anterior aspect of the thecal sac without compressing the cord. The exit neural canals outline normally, no significant narrowing or impingement of the exiting nerve roots. The conus medullaris is normal and appropriately sited at the level of the T12/L1 disc.”
On 28 May 2019, the applicant’s physiotherapist noted that the applicant reported “extreme pain from head to toes”.
On 31 May 2019, Dr Tadros’ clinical notes stated “severe neck and back pain Neck pain radiates to both upper limbs Back pain radiates to both lower limbs”. There was no specific reference to shoulder pain at that time.
On 4 June 2019, the applicant’s physiotherapist noted that the applicant reported that:
“overall his pain symptoms have been gradually worsening. He reports a tight, pressure like pain starting at his lumbosacral spine up to his cervical spine. He reports this pain is constant… Intermittent tingling and numbness starting from neck down to hands (affecting all fingers)”.
The applicant was referred for MRI of the left shoulder and the right shoulder which was undertaken on 13 June 2019. The relevant report stated:
(a) In relation to the applicant’s right shoulder, the conclusion was:
(i)Moderate ACJ osteoarthropathy;
(ii)Lateral downsloping acromion impinging on the underlying supraspinatus tendon;
(iii)Mild subacromial/subdeltoid bursitis;
(iv)Moderate supraspinatus tendinopathy. And
(v)No rotator cuff tear.
(b) In relation to the applicant’s left shoulder, the conclusion was:
(i)Mild ACJ osteoarthropathy;
(ii)Lateral downsloping acromion impinging on the underlying supraspinatus tendon;
(iii)Moderate subacromial/subdeltoid bursitis, and
(iv)Moderate to high grade supraspinatus tendinopathy associated with a partial thickness intrasubstance tear measuring 6.7mm close to its attachment site.
On 14 June 2019, Dr Tadros’ clinical notes noted that the applicant had painful right and left shoulders in addition to neck pain, back pain.
On 18 June 2019, the applicant’s physiotherapist noted the results of the applicant’s MRI of his left and right shoulders and noted that the applicant was “still very sensitive to pressure”.
On 27 June 2019, the applicant’s physiotherapist noted that the applicant was treated with prone release of shoulder girdles and was still very sensitive to pressure.
On 1 July 2019, Dr Tadros’ clinical notes stated “shoulder pain”. There was no apparent reference to “radiating” pain.
On 9 July 2019, the applicant’s physiotherapist noted that the applicant reported increased stiffness in his neck and shoulders bilaterally.
On 11 July 2019, the applicant’s physiotherapist noted that the applicant reported “shooting pain from his neck down bilateral arms reaching his fingers, worse on the (R) side” which was occurring more frequently.
On 18 July 2019, the applicant’s physiotherapist noted that on 26 July 2019, the applicant was scheduled to have a cyst removed from his right shoulder, which had been scheduled to occur prior to the work injury.
On 23 July 2019, the applicant’s physiotherapist noted that the applicant had “Paraesthesia in bilateral UL, numbness in both hands”.
On 26 July 2019, the applicant had a cyst removed from his right shoulder, as arranged prior to the work injury on 29 April 2019.
On 6 August 2019, the applicant’s physiotherapist noted that the applicant had remedial treatment for pain management which focused on his lumbar fascia, middle back, upper back and neck but avoided his right shoulder due to his recent surgical procedure.
On 14 August 2019, Dr Tadros’ clinical notes stated “back pain still the same neck pain painful shoulder pain interferes with his sleep”. There was no apparent reference to “radiating” pain.
On 1 September 2019, Dr Tadros’ clinical notes stated “pain neck, both shoulders, both upper limbs…”. There was no apparent reference to “radiating” pain.
On 4 October 2019, Dr Tadros’ clinical notes stated “pain both upper limb”. There was no apparent reference to “radiating” pain.
On 25 October 2019, Dr Maniam completed a request for treatment being subacromial/subdeltoid bursectomy, acromioplasty, excision ACJ and repair supraspinatus tendon. He noted the results of the MRI of the left and right shoulders and that the applicant was diagnosed with “ACJ osteoarthritis, downsloping acromion, impingement, moderate subacromial/subdeltoid bursitis + High grade Supraspinatus tendinopathy + tear “. He stated that the reason for the request was because the applicant had not improved with conservative treatment.
The applicant was then referred to Dr Stephenson, Orthopaedic Surgeon.
Dr Stephenson examined the applicant on 2 December 2019 and he prepared a report dated 9 December 2019. Dr Stephenson noted that the history of the applicant’s injuries was that he was that the applicant:
“was up a ladder welding in a small confined space when the injury occurred with the development of neck and back pain and bilateral shoulder pain. In addition, he felt dizzy. He said he came slowly down the ladder. He said he did not fall. It was contrary to the history given by Dr Maniam above”.
Dr Stephenson assessed that the applicant had pain mainly in his neck, low back and right shoulder with measurable restriction in movement in both shoulders. The applicant had uniform range of motion in the thoracic spine but asymmetrical loss of range of motion in the cervical and lumbar spine. There was no objective findings of radiculopathy at the cervical and lumbar spine and upper and lower extremities. Dr Stephenson assessed 5% impairment of the cervical spine, 5% impairment of the lumbar spine, 7% impairment of the right upper extremity (shoulder) and 7% impairment of the left upper extremity (shoulder), giving a total WPI of 22%.
On 23 December 2019, Dr Tadros’ clinical notes stated “pain R & L shoulders”. There was no apparent reference to “radiating” pain.
On 14 February 2020, Dr Tadros’ clinical notes stated “back pain Pain R + L shoulders keeps dropping things”. There was no apparent reference to “radiating” pain.
On 2 April 2020, Dr Tadros’ clinical notes stated “ongoing pain neck pain radiating to both shoulders”.
Dr Stephenson examined the applicant again on 22 June 2020 and he prepared a report dated 29 June 2020. Dr Stephenson noted similar findings on examination to that contained in his previous report. He considered the MRI studies of the applicant’s shoulders. Dr Stephenson concluded that in the applicant’s right shoulder there was a small intrasubstance tear measuring 6.7mm close to the attachment site and he supported the proposed shoulder surgery. Dr Stephenson opined that the applicant’s employment was the cause of the condition. Dr Stephenson assessed 5% impairment of the cervical spine, 5% impairment of the lumbar spine, 7% impairment of the right upper extremity and 7% impairment of the left upper extremity, giving a total WPI of 22%.
On 5 November 2020, Dr Singh, Orthopaedic and Spine Surgeon, prepared a report based on his examination of the applicant. Dr Singh noted that the applicant’s reported history of the injury was that in April 2019 he was working in a narrow space, installing and welding brackets on to the roof of a ship when he suddenly felt very nauseated with significant neck and low back pain. Dr Singh noted that the applicant reported pain which “goes from his neck down to his shoulders” and that his balance and ability to walk was affected. Dr Singh observed on examination that the applicant appeared to be in significant pain with difficulty walking, seriously limited neck range of motion and flexion of the applicant’s neck caused shooting symptoms down his back. Dr Singh noted that neurological examination was positive for weakness of the applicant’s triceps and finger extensors and that reflexes were depressed in the upper limbs and low limbs. He noted that inverted supinator reflex was present bilaterally with decreased sensation in bilateral C5 dermatome. Dr Singh considered the applicant’s shoulder MRIs. Dr Singh opined that the applicant’s employment was the main contributing factor to his condition, especially with overhead activity, looking up with extension of the neck and repetitive movements and heavy lifting. Dr Singh opined that the applicant has myeloradiculopathy, significant central stenosis at C4/5 and C5/6 with possibly some cord signal change. He noted that the applicant had significant foraminal stenosis at C4/5. In the circumstances, he considered that the applicant undergo decompression of the spinal cord with stabilisation and insertion of a prosthesis in the cervical spine. Notably, Dr Singh did not refer to any specific shoulder injury.
In a further report dated 16 December 2020 based on his review of the MRI studies, Dr Stephenson stated that the pathology in the applicant’s left and right shoulders was different. He stated that the pathology in the applicant’s left shoulder predominantly involved moderate AC joint osteoarthropathy and impingement on supraspinatus tendon and mild subacromial subdeltoid bursitis. The pathology in the applicant’s right shoulder also involved moderate AC joint arthropathy and bilateral downsloping acromion with the additional component of moderate-to-high grade supraspinatus tendinopathy associated with partial thickness intrasubstance tear measuring 6.7mm close to the attachment site. Dr Stephenson opined that the pathology was “pre-existing and aggravated by the work injury”.
In a further report dated 8 April 2021, Dr Stephenson noted that, after having regard to the activities of daily living component, he assessed 5% impairment of the cervical spine, 7% impairment of the lumbar spine, 7% impairment of the right upper extremity and 7% impairment of the left upper extremity, giving a total WPI of 23%.
Competing medical evidence
The respondent relies on some medical evidence which is contained in the applicant’s material and referred to above. In addition, the respondent relies on the following medical evidence.
On 24 October 2019, Dr Anthony Smith, Orthopaedic Surgeon conducted an independent medical examination and he then prepared a report dated 4 November 2019. Dr Smith noted that the reported history of the applicant’s injury was that on 29 April 2019, he was working on a ladder in a confined space performing overhead work and looking upwards, welding a steel bracket to the ceiling of a naval ship, when he experienced nausea and had pain in his neck, running down to his low back and into both shoulders and later headaches. Dr Smith noted on examination that:
“He has a normal cervical lordosis. Neck movements are less than 10° in any direction and he grimaces with all neck movement to and fro. He has a normal thoracic control and a normal respiratory excursion. Actively shoulder extension is 40° bilaterally and flexion is 90° bilaterally. Internal rotation is 60° bilaterally and external rotation is 50° bilaterally. Adduction is 90° bilaterally. He has no sensory abnormality in either upper limb. There is a global power loss in all movements of both upper limbs, which extends from the small muscles of the hand, through two and including shoulder elevation bilaterally and neck rotation to the right and left. The weakness is quite gross and unphysiological. He will not allow any increase in shoulder movement with passive examination. He has a normal lumbar lordosis. He can reach to the low thighs only and resumes the erect position slowly. Lumbar extension is 5°. Lateral flexion and rotation to the right and left is 10 degrees. Straight leg raising is only 15° bilaterally. He rolls and sits up to a position equivalent to 90° of straight leg raising. There is a loss of sensation in both lower limbs. There is no other neurological abnormality in either lower limb.”
In his report dated 4 November 2019, Dr Smith stated that the applicant had “a somewhat histrionic presentation, for reasons that are unclear”. Significantly, Dr Smith opined that the weakness that the applicant exhibited in his upper and lower limbs, the restriction of shoulder movement and the loss of sensation was “manufactured”. Dr Smith diagnosed “aggravation to his rather severe and extensive cervical degenerative disease, which was previously asymptomatic, in the work incident of 29 April 2019” . Dr Smith stated that was “the only pathology that could produce all the symptoms he describes”. Dr Smith opined that “all the symptoms are disseminating from his cervical spine” and that the applicant had not been appropriately treated since the time of the injury on 29 April 2019 which may have caused a degree of anxiety. Dr Smith considered that the applicant’s employment was not a substantial contributing factor to his spinal degenerative disease in the neck, thoracic or lumbosacral spine, AC joint osteoarthritis, bilateral rotator cuff disease and bilateral bursitis, which he believed to be asymptomatic. Dr Smith considered that the applicant’s employment was a substantial contributing factor to the initial exacerbation/aggravation to his previously asymptomatic cervical degenerative disease, which had not yet been treated. Dr Smith opined that:
“It is more likely than not that there are actually no symptoms present now that a result of the incident of 29 April 2019. They probably resolved in and of themselves, after one or two weeks, or two months at the most. He is likely to be exacerbating this condition from time to time with various activities on his part. This could lead him to believe he has a continuous problem”.
In a further report dated 11 December 2019, Dr Smith confirmed his opinion that the applicant sustained an aggravation to his degenerative cervical spine in the work incident 29 April 2019. Significantly, Dr Smith stated that “Considering the injury mechanism the way he described it to me, there is in my opinion, no likelihood that he could have sustained an injury to either shoulder”. Further, Dr Smith restated his opinion that the applicant’s demonstrated bilateral restriction in movement of both shoulders was “highly unphysiological and most likely manufactured, as was his weakness in both upper limbs, which included shoulder elevation and neck rotation to the right and left”. Dr Smith stated that:
“Those movements are performed by the trapezius muscles and the sternomastoid muscles respectively. Those muscles are supplied by the 11th cranial nerve, which exits the skull directly via its own foramen, located just behind the ear on each side. It then penetrates and supplies the overlying sternomastoid and crosses the anterior neck to enter and supply the trapezius. Those nerves and those muscles could not have been affected in the work accident of 29 April 2019”.
In a report dated 14 August 2020, based on his independent examination of the applicant on 13 August 2020, Dr Smith noted that the applicant continued to report pain in his neck, all around both shoulders and between the shoulders, thoracic spine, low back pain and pain equally in both buttocks running down the legs to his feet. Dr Smith noted that, on examination, the applicant demonstrated a normal cervical lordosis and lumbar lordosis. The applicant demonstrated restriction in movement of his neck, shoulders, arms, back and legs, limited by pain. Neck movements were one-tenth of the expected range in all directions, being limited by pain. Actively shoulder extension was 20° bilaterally. Flexion was 80° bilaterally. Internal rotation was 70°. There was no external rotation achievable. Abduction was 90° bilaterally. Dr Smith noted that the applicant would not allow an increase in the range of motion of the shoulders with regard to abduction on either side. There was no scapulothoracic movement. Dr Smith noted that there was no wasting in either upper limb. There was a partial loss of sensation, involving the entire surface of both upper limbs. There was a gross weakness in all movements of both upper limbs, including pinch and grip, wrist, elbow and bilateral shoulder movements and shoulder elevation and weak neck rotation to the right and left.
In that report, Dr Smith opined that if the applicant had a genuine restriction in the range of movement of either shoulder because of impingement, consequent to rotator cuff disease, then there would have been early scapulothoracic movement and a considerable increase in any abduction he exhibited. However, he noted that the applicant did not allow scapulothoracic movement and demonstrated more power resisting abduction than he did when abduction was formally examined testing power of abduction only. Dr Smith again opined that the applicant was embellishing his condition and manufacturing physical signs when, objectively, there was “nothing wrong with him”. Dr Smith noted that radiologically the applicant had degenerative changes in his neck and lower back, which one would expect him to have but there was no objective evidence of post-traumatic lesion of his neck and low back. Dr Smith opined that possibly the applicant did have symptoms from his spinal degenerative disease from time to time but there was no objective evidence from an orthopaedic point of view, that he was unfit to work as a boilermaker/welder. Dr Smith opined that the nerves and muscles relevant to the applicant’s demonstrated gross weakness in the applicant’s shoulder elevation bilaterally and neck rotation to the right and left, would not have been affected by an aggravation to his neck arthritis, which could have occurred on 29 April 2019. Dr Smith opined that any impairment to the applicant’s lumbosacral spine and neck was consequent to his degenerative disease in his neck and low back and not to the incident at work on 29 April 2019. In his opinion, there was no work-related impairment. Dr Smith noted that assessment relied on the veracity of the patient’s history and reported symptoms, which he questioned on the basis of the applicant’s apparent preparedness to manufacture physical signs.
On 9 October 2019, Dr Tadros prepared a report. He noted that on 30 April 2019, the applicant consulted him and reported that the previous day he injured his neck and back at work when he was working on a ladder in a confined space, welding brackets that were high and he had to stretch and twist his body. Dr Tadros noted that the applicant reported that as he twisted his body, he “felt pain down his spine from his neck to his lower back” which progressively got worse. Dr Tadros noted the applicant’s medical history, which relevantly included left subacromial bursitis (November 2011), chest wall injury following a fall at work from approximately 2-3 metres height (January 2004), back sprain (March 2005), right shoulder tendinitis (May 2010) and painful right and left shoulders improved with conservative treatment (November 2010). He noted that examination of the applicant on 30 April 2019 revealed tenderness of the upper cervical spine, restricted neck movement, spasm of the paraspinal collar muscles, tenderness of the lumbar spine with maximum localization of stresses at the L4 and L5 levels and their relevant spaces, tenderness at the dorsal lumbar junction and some limitation in leg movement. He noted that despite conservative treatment, the applicant continued to complain of painful stiffness of his back and neck. Dr Tadros stated that the applicants pain “radiates to the left eye down to his left foot” and his “neck pain radiates to both shoulders and both upper limbs”. Dr Tadros opined that the applicant sustained the injuries causally related to his work injury on 29 April 2019, which relevantly included:
(a) musculo ligamentous sprains of the lumbosacral spine and cervical spine with implication of the discs at one or more levels which rendered a pre-existing degenerative process symptomatic with persistence of symptoms, and
(b) right and left shoulder pain “most likely radiating from his neck”.
Dr Tadros opined that the applicant’s degenerative changes were asymptomatic (as he has been doing his job for 8 years without any complaints) but were rendered symptomatic by the injury on 29 April 2019, although there was no aggravation involved.
In a report dated 10 August 2020, based on examination of the applicant that day, Dr Soo, Orthopaedic Surgeon, noted the applicant’s reported history of injury and that he “first noted pain to his right and left shoulders” when he was performing welding work up a ladder in a confined space on a Navy ship on 29 April 2019. He noted that the applicant reported that he had been unable to return back to work due to continued pain to his neck and both shoulders. Dr Soo noted that the applicant denied any relevant previous history of pain or injury and that he was a right-hand dominant man who was otherwise fit and healthy. Dr Soo noted that the applicant complained of constant burning pain extending from his lower back up to his neck with numbness extending down his shoulders to his fingers. His neck pain is excruciating and constant, and his right shoulder pain was worse than the left. The applicant complained of pain to the top and back of the right shoulder being a “burning type pain that radiates down the back of the shoulder to the triceps and down to his fingers”, worsened with elevation of the arm above shoulder height and reaching behind him. Dr Soo noted that the applicant had marked limitation in movement of the neck, trapezius and shoulders due to pain. Dr Soo opined that the applicant’s pain was not related to pathology evidence by MRIs of some degenerative changes to the applicant’s rotator cuff and AC joint (with a partial tear of the supraspinatus on the right shoulder). Dr Soo opined that the applicant’s pain was nerve related and was likely coming from his neck. Dr Soo opined that the applicant may even be experiencing signs of Chronic Regional Pain Syndrome to both his upper limbs. Dr Soo stated that he did not feel that the changes on MRI to the applicant’s shoulders were clinically relevant. He recommended that the applicant did not have shoulder surgery (which he believed would be counterproductive) but instead get a nerve conduction study and saw a spine specialist for opinion about the changes on MRI scan to his cervical spine.
Discussion
I note the applicant’s evidence that he did not have any relevant pre-existing injury and that was reported by a number of medical experts. However, I accept that is inconsistent with the evidence of Dr Tadros (contained in his report dated 9 October 2019) that prior to the work incident on 29 April 2019, the applicant did have a number of pre-existing injuries. These relevantly included left subacromial bursitis (November 2011), chest wall injury following a fall at work from approximately 2-3 metres height (January 2004), back sprain (March 2005), right shoulder tendinitis (May 2010) and painful right and left shoulders improved with conservative treatment (November 2010). I note the physiotherapist’s notes that the applicant apparently minimised the effects of the fall at work in January 2004. This causes some concern in relation to the veracity of the applicant’s evidence and the soundness of medical evidence to the extent that may have been relevant to consideration of the injuries the subject of this dispute and I have considered and weighed this factor in the context of the whole of the evidence.
I do not accept Dr Smith’s opinion that the applicant manufactured his symptoms. Considering the whole of the evidence, and notwithstanding evidence that the applicant denied and minimised his pre-existing injuries, I accept that the applicant experienced shoulder pain and symptoms as a result of the work incident on 29 April 2019. The symptoms reported by the applicant were reported by the various medical experts with reasonable consistency and were supported by medical examinations and opinion with the exception of Dr Smith.
I note that there is inconsistent evidence as to whether the applicant experienced shoulder pain at the time of the work incident on 29 April 2019. It is the applicant’s evidence that he did experience shoulder pain at that time. In his report in August 2020, Dr Soo stated that the applicant first noted shoulder pain at the time of the work incident. However, there is little independent contemporaneous evidence to that effect. Dr Tadros’ notes of 30 April 2019 and 2 May 2019 only record that the applicant reported neck and back pain. In his report dated 9 October 2019, Dr Tadros stated that on 30 April 2019, the applicant reported that he “injured his neck and back at work” and “as he twisted he felt pain down his spine from his neck to his lower back”. In comparison, the physiotherapist’s notes dated 15 May 2019 record that the applicant then reported that at the time of the work incident he experienced “shooting pain from hips to neck to shoulders”. However, there is other evidence which indicates that the applicant’s shoulder pain increased over time after the work incident on 29 April 2019. It appears that Dr Tadros first clearly recorded in his notes that the applicant reported shoulder pain on or about 6 May 2019, with the pain in his left shoulder apparently being greater than the pain in his left shoulder. In any event, it is clear from Dr Tadros’ certificates of capacity that the applicant reported shoulder injury in addition to neck and back injury at least from 13 May 2019 and he continued to report shoulder pain thereafter. On 4 June 2019, the physiotherapist reported that the applicant’s pain symptoms had been gradually worsening. There is consistent evidence from the applicant’s treating practitioners that the applicant thereafter regularly reported pain which included shoulder pain. However, there is some evidence that the right shoulder pain was subsequently the worst, as noted by Dr Soo. I note that at the time of the work incident on 29 April 2019, the applicant was twisting his body and reaching upwards with his arms, holding heavy items and pressing them upwards against the ceiling. At that time, the applicant’s shoulders would have been extended upwards as they supported the weight of the equipment whilst also pressing them to the ceiling. Considering the evidence, I find on balance that at the time of the work incident on 29 April 2019 the applicant experienced shooting pain between in his neck, back and shoulders. Whilst the applicant’s neck and back injury was initially of primary concern, his shoulder pain increased by 6 September 2019 and all pain symptoms increased further and continued over time.
I note that on numerous occasions the applicant’s shoulder pain, reported over time, was of the nature that it “radiated” or emanated from another part of the body, most frequently the neck but sometimes the lower back. On 17 May 2019, Dr Tadros described the pain as “radiating to neck shoulders and down his back”. On 31 May 2019, 11 July 2019 and 9 October 2019 Dr Tadros described it as neck pain radiating to both upper limbs. On 9 October 2019, Dr Tadros opined that the applicant’s right and left shoulder pain was most likely radiating from his neck. On 11 July 2019 and other occasions, the applicant’s physiotherapist also described “shooting” or “radiating” pain, as did other medical experts from time to time. However, on other numerous occasions Dr Tadros did not describe the applicant’s shoulder pain as “radiating”. On that basis, I find that the applicant’s shoulder pain included shooting pain which radiated from other parts of his body, mostly down from his neck.
I note that there is evidence that the applicant experienced restricted range of movement in his shoulders, at the earliest recorded by Dr Tadros in about 6 May 2019 and by the applicant’s physiotherapist on 15 May 2019. On 9 July 2019, the applicant’s physiotherapist reported increased stiffness in the applicant’s neck and shoulders bilaterally. This is consistent with other medical evidence which noted ongoing restriction of movement in the applicant’s shoulders. On 24 October 2019, Dr Smith noted that the applicant had restricted movement and global loss of power in his neck and upper limbs which he considered to be “quite gross and unphysiological”. Dr Smith opined that the applicant’s weakness, restriction of shoulder movement and loss of sensation was “manufactured”. However, on 9 December 2019, Dr Stephenson assessed that the applicant had measurable restriction in movement in both shoulders. On balance, I accept that from early May 2019 the applicant experienced restricted range of movement in his shoulders which continued over time.
I note that there is evidence that the applicant also had paraesthesia in bilateral upper extremities, such as reported by the applicant’s physiotherapist initially on 4 June 2019 and 23 July 2019. That is supported by other medical evidence including Dr Singh, with the exception of Dr Smith who questioned the veracity of the applicant’s reported symptoms. On balance, I find that over time the applicant also had sensory symptoms in his bilateral upper extremities.
I accept on the basis of the radiology reports dated 2 May 2019, which is consistent with the medical evidence generally and not in dispute, that the applicant then had degenerative changes particularly of his cervical spine involving reduced disc height, endplate sclerosis and ostephyte formation at C4/5 and C5/6 levels and mild impingement in right neural foramina at C4/5 level. The applicant also had mild degenerative changes in his lumbar spine involving reduced disc height and endplate sclerosis at the L5/S1 level.
I also accept on the basis of the MRI reports dated 13 June 2019, which is consistent with the medical evidence generally and not in dispute, that the applicant’s right shoulder had moderate ACJ osteoarthropathy, lateral downsloping acromion impinging on the underlying supraspinatus tendon, mild subacromial/subdeltoid bursitis and moderate supraspinatus tendinopathy. The applicant’s left shoulder had mild ACJ osteoarthropathy, lateral downsloping acromion impinging on the underlying supraspinatus tendon, moderate subacromial/subdeltoid bursitis and moderate to high grade supraspinatus tendinopathy associated with a partial thickness intrasubstance tear measuring 6.7 mm close to its attachment site. That was the basis for Dr Maniam’s request for treatment on 25 October 2019.
In relation to the reason for the applicant’s shoulder symptoms:
(a) Dr Singh noted that the applicant had significant central stenosis at C4/5 and C5/6 with possibly some signal cord change. He opined that the employment was the main contributing factor to his shoulder symptoms;
(b) Dr Stephenson opined that the applicant’s shoulder symptoms were a result of the pathology identified by the MRIs. He opined that the pathology was pre-existing and aggravated by the work injury;
(c) Dr Tadros opined that as a result of the work incident on 29 April 2019, the applicant suffered musculo ligamentous sprains of the lumbosacral spine and cervical spine with implication of the discs at one or more levels which rendered a pre-existing degenerative process symptomatic with persistence of symptoms, but with no aggravation involved. Dr Tadros opined that the applicant’s bilateral shoulder pain was most likely radiating from his neck;
(d) Dr Soo opined that the applicant’s shoulder symptoms were not related to the pathology identified by the MRIs. He opined that the applicant’s symptoms were likely nerve related and coming from the applicant’s neck. He also opined that the applicant may be experiencing Chronic Regional Pain Syndrome,
(e) Dr Smith opined that the applicant “manufactured” his symptoms and that there was no likelihood that the applicant sustained shoulder injury as a result of the work incident on 29 April 2019. For the reasons set out above, I do not accept Dr Smith’s opinion that the applicant “manufactured” his symptoms. With some apparent inconsistency to his findings in relation to symptoms, Dr Smith also opined that the applicant’s symptoms were caused by aggravation to his rather severe and extensive cervical degenerative disease, which was previously asymptomatic in the work incident of 29 April 2019. I assume that Dr Smith’s opinion in relation to cause of symptoms is made on the basis of an assumption that the symptoms reported did in fact exist.
In Rail Services Australia v Dimovski [2004] NSWCA 267 at 68 the New South Wales Court of Appeal stated:
“If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease…”
This means that if there was an injury to the shoulders on 29 April 2019, it can involve an aggravation of an underlying degenerative condition and still fall within the definition of injury in s 4(a) of the 1987 Act.
The fact that there may be degenerative changes in the applicant’s shoulders does not exclude an injury to the applicant’s shoulders. Further, that the applicant experienced referred pain from his neck or back injury does not exclude a finding that he also suffered an injury to both shoulders.
I do not accept the opinions of Dr Tadros and Dr Soo in relation to the explanation for the applicant’s shoulder symptoms. I accept that the applicant may have had referred pain from his neck or back injury however I do not consider that this explains the whole of his shoulder symptoms and does not take sufficient account of the shoulder pathology identified by the MRIs.
Considering the evidence as a whole, I prefer the opinion of Dr Stephenson. The pathology identified to the applicant’s shoulders by the MRIs is not in dispute. I consider that Dr Stephenson provides a reasoned explanation of the applicant’s shoulder symptoms in the context of the applicant’s shoulder pathology identified by the MRIs. As stated above, I do not accept Dr Smith’s opinion that the applicant manufactured his symptoms. I find that Dr Smith’s opinion that the applicant has manufactured his symptoms has coloured his opinion and so he has not adequately considered whether the work the applicant performed on 29 April 2019 did aggravate the underlying degenerative condition in his shoulders. For these reasons, I prefer the opinion of Dr Stephenson to that of Dr Smith because Dr Stephenson has provided a more thorough analysis of the mechanism of injury.
For the above reasons, I consider that the whole of the evidence best supports a finding on the balance of probabilities that the applicant’s shoulder symptoms were related to the particular shoulder pathology disclosed by the MRIs, which was pre-existing and was aggravated as a result of the work incident on 29 April 2019.
On that basis, I am satisfied that it is appropriate to order that, pursuant to s 4(a) of the 1987 Act, the applicant sustained injury to his left and right upper extremities (shoulders) in the course of his employment with the respondent on 29 April 2019. The matter is to be remitted to the President for referral to a Medical Assessor for assessment of permanent impairment in relation to the applicant’s cervical spine, lumbar spine and left and right upper extremities (shoulders).
0
2
0