Hadiyan v Millennium Hi-Tech Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hadiyan v Millennium Hi-Tech Group Pty Ltd [2023] NSWPIC 619
APPLICANT:	Shariyar Hadiyan
RESPONDENT:	Millennium Hi-Tech Group Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	20 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation in respect of physical and primary psychological injuries arising from an assault; whether injury and/or consequential at bilateral shoulders; delay in reporting symptoms of more than two years; mechanism of injury unexplained; alternative explanation of symptoms found by respondent’s expert; Held – the applicant failed to discharge his onus of establishing injury or consequential condition to the shoulders; as accepted physical injuries did not exceed 10% whole person impairment threshold; only primary psychological injury to be referred to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent with respect to the allegation of injury to the left and right shoulders on 22 September 2019. 2. Award for the respondent with respect to the allegation of consequential conditions affecting the left and right shoulders as a result of the injury on 22 September 2019. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 22 September 2019 Body system Primary psychological injury Method: Whole Person Impairment 4. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments and the Reply and all attachments. 5. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in respect of the accepted injuries and/or conditions in accordance with s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Mr Shariyar Hadiyan (the applicant) was employed as a security guard by Millennium Hi-Tech Group Pty Ltd (the respondent).
On 22 September 2019, the applicant was in the course of his employment with the respondent when he was assaulted. The applicant claims to have suffered a primary psychological injury in that event as well as physical injuries.
Claims for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) were made in respect of the primary psychological injury and physical injuries.
In relation to the physical injuries, the applicant relied upon an assessment of 18% whole person impairment (WPI) of the cervical spine and bilateral shoulders made by Dr James Bodel. Dr Bodel assessed the applicant as having 7% WPI of the cervical spine and 6% WPI at each shoulder as a result of the injury.
The respondent disputed liability for any injury or consequential condition affecting the shoulders in dispute notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 17 May 2022 and, following internal review, on 5 June 2023.
As neither Dr Bodel, nor the respondent’s Independent Medical Examiner, had assessed the cervical spine at greater than 10% WPI, liability to pay lump sum compensation in respect of the physical injuries was also disputed.
The claim for lump sum compensation in respect of the primary psychological injury was disputed in a notice dated 29 May 2023 on the grounds that the applicant had not yet reached maximum medical improvement or did not have at least 15% WPI.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 18 August 2023. The applicant sought lump sum compensation in respect of his psychological and physical injuries as well as orders with respect to future general treatment expenses pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury and/or consequential condition to his left and right shoulders as a result of the injury on 22 September 2019, and
(b) the degree of permanent impairment resulting from injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission in Sydney for conciliation conference and arbitration hearing on 23 October 2023. The applicant was represented by Mr Lachlan Robison of counsel, instructed by Ms Linda Huynh. The respondent was represented by
Mr John Gaitanis of counsel, instructed by Ms Naomi Tancred. A representative from the insurer, Ms Mallard, was also present.
During the conciliation conference, the parties agreed that, as there was no liability dispute as to the occurrence of a primary psychological injury and only a dispute as to the assessment of impairment, the medical dispute in respect of the primary psychological injury was able to be referred to a Medical Assessor for assessment.
As the claim for lump sum compensation in respect of the physical injury did not reach the 11% threshold in s 66(1) of the 1987 Act without the assessment of the shoulders, it was agreed that the liability dispute in respect of the shoulders required determination before the physical injury could be referred to a Medical Assessor for assessment.
The parties agreed that the claim for s 60 expenses could be dealt with by way of a general order.
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 and all attachments.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 27 July 2022,
30 September 2022 and 20 June 2023.
In his first statement, which was prepared with the assistance of an investigator, the applicant described an injury to his nose and neck. The applicant said that in the incident on 22 September 2019 he was head-butted, which left his nose broken. The applicant did not realise he had any problem with his neck until one or two weeks later when he underwent an MRI.
The applicant said the incident occurred when a middle-aged man came into the shopping centre where he was working under the influence of drugs. The man became agitated when he was told he could not access an area which had been closed off. As the applicant was trying to calm the man down, the man head-butted the applicant. The applicant said:
“We did not try to touch him and we were trying to calm him down and he just head butt me and I bounced my head back maybe one metre, I did not fall but I was surprised, he did not have any body language to doing that and I realise my nose broken and I say my nose broken and he run away.”
Afterwards, the applicant was in shock. His nose was not bleeding but was broken. The applicant went to his general practitioner who examined his nose and said it was broken. The applicant was given some painkillers.
The applicant said.
“I did not go back to work after then, I go to my doctor the next day because I could not sleep, my face very sore and then my neck start hurting about one week later. I feel the pain in neck get worse and worse and worse and the strong pain killer to stop the pain. About one month later my nose start to heal but my neck still pain even now.”
The applicant underwent physiotherapy but was told his neck was permanently damaged. The applicant started to feel depressed, getting nightmares and a phobia of going outside.
The applicant went to Uganda for a few weeks to see his girlfriend in March 2020 but got stuck there for a year due to the COVID-19 pandemic. The applicant’s neck was treated with pain medication and injections whilst in Uganda.
The applicant described ongoing psychological and neck symptoms.
In his second statement, the applicant denied any previous major injury to his left or right shoulder.
The applicant said that as a result of the incident on 22 September 2019 he sustained a fractured nose and had pain in his cervical spine and both shoulders. The applicant stated:
“I experience chronic pain and stiffness in my left and my right shoulder. This pain is novel as I began to notice this pain following the assault. I cannot push, pull, lift or use my arms overhead as I could prior to the subject incident.”
The applicant described symptoms of pain in his biceps as well as pins and needles and numbness.
Following the incident, the applicant consulted his general practitioner, Dr Mohammed Abdallah, in respect of his nose injury and the neck and shoulder pain. The applicant was prescribed Duragesic and other pain medication. The applicant was treated with physiotherapy.
The applicant said he did not understand why liability for the left and right shoulder conditions had been declined when he had not struggled with such pain and disability prior to the incident. The applicant said he started feeling pain in both shoulders following the injury as he was subconsciously overusing his trapezius muscles and shoulders in order to compensate for the limited function and chronic pain was experiencing his neck.
The applicant’s third statement mainly addressed his psychological symptoms. The applicant again described ongoing left and right shoulder pain.

Treating evidence

Clinical records from the Berowra Family Medical Practice are in evidence.
These show the prescription of Duragesic for chronic hand pain both before and after the work injury.
Following the work injury there are reports of facial and neck symptoms as well as psychological symptoms at regular consultations with no reference to symptoms in the shoulder region until 1 November 2021 when there was a reference to “bilateral cervical and trapezius muscle” pain.
“Bilateral paracervical tenderness” was noted again on 12 January 2022 and
22 February 2022.
On 28 June 2022, general practitioner Dr Brenda Steedman noted:
“Noticed left shoulder pain and lower chest pain a few days ago after an argument with his father overnight. Mothers family have a h/o heart disease although she is very fit and healthy at 82yo.”
On 23 August 2022, another general practitioner, Dr Antoon noted:
“1. ongoing general paracervical muscle pain
left worse than right
rotation left 10 degrees, right 40 degrees
can only watch movie only for 20 min, feels like poking senstion left lower cervical/medial trapezius muscle
awakes from sleep startled if neck gets in incorrect position scared in shopping centre, usually needs friend to partner with him
2. left trapezius pain and left shoulder pain ? referred from cervical spine
3. ongoing anxiety/ depression PTSD
Examination:
bilateral paracervical tenderness
left trap tenderness
restricted neck rotation
left shoulder pain but non tender, full ROM”
The applicant was referred for an MRI of the cervical spine and left shoulder.
Dr John Antoon, prepared a report for the applicant’s solicitors on 14 September 2022 stating:
“Mr Hadiyan has suffered both left and right Soft Tissue Injury of Trapezius Muscles and Shoulders. This is a work related injury that was not sustained immediately, but had a slowly increasing progressive onset as a secondary complication of neck injury.
The mechanism of pathology of bilateral Soft Tissue Injury of Trapezius Muscles and Shoulders is a direct delayed consequence of neck injury with subconscious over use of trapezius muscles and shoulders to compensate for limited function and chronic pain associated with the cervical injury.”
An MRI of the left shoulder was performed on 19 December 2022 and reported to show mild subacromial bursitis and mildly active acromioclavicular joint arthropathy.
At a consultation on 24 January 2023, it was noted:
“Right shoulder pain – seeing Dr in Castle hill for ?biopsy.”
On 7 February 2023, Dr Steedman recorded:
“Lawyers told him he needs MRI of right shoulder as well – given referral.”
An MRI of the right shoulder performed on 23 February 2023 showed low grade supraspinatus tendinosis without a significant tear; mild subacromial bursitis and a tear of the superior labrum extending anteriorly.
On 21 March 2023, Dr Steedman recorded:
“upset as “had a productive useful life and all gone”
concurrent increased right shoulder pain, feels is masked by opioids”

Dr Bodel

Dr Bodel prepared medicolegal reports for the applicant on 19 October 2021,
30 September 2022, 10 January 2023 and 12 April 2023.
In his first report, Dr Bodel noted that the applicant had been examined by telehealth.
Dr Bodel took a history of the injurious event and said the applicant’s main complaints were the neck and shoulders. The applicant’s current complaints included:
“• He has pain and stiffness in both shoulders.
• He can wake from sleep if he rolls on either shoulder at night.
• He cannot push, pull or lift or use the arms overhead.”
On examination, Dr Bodel found:
“I also note that he reports that he has pain in the front of both shoulders and he indicates the areas of pain. He has a restricted range of shoulder movement...
The range of movement is verified by the use of the goniometer across the video screen. I observe no restriction of elbow, wrist or hand movement. He is able to make a strong fist in front of the camera. He does not complain of any numbness or tingling in a dermatomal distribution in the upper limbs nor is there evidence of wasting in the small muscles of the hand or sensory loss in the distribution of the median or ulnar nerve.”
Asked to describe the nature of the applicant’s injuries, Dr Bodel stated:
“From the orthopaedic point of view, this gentleman has a restricted range of neck movement, probably due to degenerative disc disease in the cervical spine and rotator cuff pathology in both shoulders which are verifiable by Telehealth.”
Dr Bodel diagnosed:
“… significant rotator cuff pathology in both shoulders, also aggravated by this assault.”
Asked whether the applicant had any pre-existing conditions, Dr Bodel responded:
“There is no indication clinically that there was any pre-existing condition present in either of these areas prior to the assault. Undoubtedly, he did have some degenerative change but it was not causing any impairment until he was assaulted.”
In assessing permanent impairment, Dr Bodel found a rateable restriction of both shoulders.
In his second report, Dr Bodel was asked to comment on the denial of liability for the shoulders and Dr Nair’s reports. Dr Bodel commented:
“I have based my assessment on the clinical findings where he has a rateable restriction of shoulder girdle movement and if, as Dr Nair has recommended, an MRI scan is done of each shoulder, I am satisfied that pathology will be identified, particularly in a man who is now 57 years of age, and that would clarify the reason for the assessment that I have given.”
Further:
“I agree with Dr Nair’s assessment that the clinical diagnosis has not been confirmed and I note that your client’s complaint to me about shoulder pain was not made to anyone else and I accepted his complaints and examined him clinically and found a restricted range of movement. I strongly suspect that MRI scans, as recommended by Dr Nair, will confirm a pathological diagnosis in the shoulders and therefore allow the assessment to continue.”
In his report of 10 January 2023, Dr Bodel considered the MRI of the left shoulder and stated:
“These signs are of relatively minor but genuine pathology in the region of the left shoulder girdle. The shoulder itself is stable and those structures do not require surgical intervention. An injection of local anaesthetic and hydrocortisone may be required as part of the medical management of the injury to the left shoulder.”
Dr Bodel expressed the belief that the reported abnormality justified his interpretation of the films and refuted the statement by Dr Nair.
In his final report, Dr Bodel reviewed the MRI of the right shoulder and stated:
“This report confirms that there is pathology in the region of the right shoulder and that justifies the rateable restriction of the right shoulder movement that I have identified at the time of my assessment.”

Dr Nair

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Anil Nair dated 14 January 2022, 26 April 2022 and 16 November 2022.
In his first report, Nr Nair took a history of the assault which was said to have resulted in a nasal fracture and injury to the cervical spine. The applicant’s symptoms were reported as:
“Pain in subaxial cervical spine. There is radiation into the biceps region of the left upper extremity. The pain is present at rest. It is provoked by rotation of the cervical spine.”
Dr Nair diagnosed the physical injury as:
“Based on the evidence at hand, he has clinical features of a cervical disc herniation. He stated that he had previously undergone an MRI scan of the cervical spine. This was not available for my review. Should this become available, I am more than happy to review the medical imaging and provide further opinion via a supplementary report.”
At the time of Dr Nair’s second examination of the applicant. He again reported his current symptoms as:
“Pain in subaxial cervical spine. There is radiation into the biceps region of the left upper extremity. The pain is present at rest. It is provoked by rotation of the cervical spine.”
On this occasion, Dr Nair performed an examination of the shoulders, finding:
“Limitation of movement in both shoulders was limited by paraesthesia and dysaesthesia in the trapezial region. Provocative testing for impingement was negative bilaterally.”
Asked to comment on the progress of the applicant’s cervical spine and shoulders since the accident, Dr Nair responded:
“He was head butted. This would have imparted a significant extension movement to his cervical spine region. Thus it is highly likely that the cervical spine condition is related to his workplace accident. He has not had any further treatment since I last reviewed him. There is no evidence of injuries to either shoulder. The mechanism of injury is not consistent with developing injuries to either shoulder.”
Asked specifically whether the applicant had suffered a left shoulder injury, Dr Nair responded:
“I do not accept that he sustained a left shoulder injury. It is not consistent with the mechanism of the incident. Furthermore the restriction in the left shoulder is due to dysaesthesia as opposed to mechanical factors. It is also important to note that he has not had any MRI scans on either shoulder. As such it is not reasonable to determine that shoulder conditions are permanent without an anatomical diagnosis.”
Asked whether in the alternative a condition at the left shoulder had resulted from the incident, Dr Nair responded, “[t]here has been no condition identified.”
Dr Nair gave the same opinions in response to questions about the right shoulder.
In his final report, Dr Nair as asked whether the applicant had a condition which had resulted from the cervical spine injury at each shoulder. Dr Nair responded:
“When I reviewed Mr Hadiyan on 21 December 2021 there was no evidence of shoulder injuries. His symptoms were typical of cervical degenerative disc disease. It is important to note that no medical imaging was available for me to review at the time of injury. Based on the evidence at hand, specifically clinical history and examination, there was no evidence of a left or right shoulder injury that was consequent to the cervical spine injury.”

Applicant’s submissions

The applicant submitted that the key issue in the proceedings was whether the respective expert opinions were given in a fair climate.
The applicant observed that radiological investigations had been undertaken in respect of each shoulder. Dr Bodel had commented on the radiological evidence whereas Dr Nair had not. The applicant’s expert evidence was founded on objective material whereas the respondent’s evidence was not.
Referring to his statement evidence, the applicant observed that he had no pre-existing injuries to his shoulders and his shoulders were asymptomatic prior to the incident.
The applicant relied on an injury for the purposes of ss 4(a) and 9A and noted that he need only establish that employment was a substantial contributing factor to the injury.
There was no suggestion of any other cause for the applicant’s shoulder symptoms and no countervailing case theory.
The applicant conceded that no reference was made to shoulder symptoms in his first statement but submitted that that circumstance was not inconsistent with there being a consequential condition.
The applicant referred to the report prepared by Dr Antoon and submitted that it suggested a soft tissue injury or a direct impact in the injurious event.
The applicant submitted that in determining whether there was any injury for the purposes of ss 4(a) and 9A, it was not necessary for the precise nature of the injury or pathology to be identified. The MRIs of both shoulders confirmed the existence of pathological changes.
Referring to the reports of Dr Bodel, the applicant observed that the initial examination was done by the telehealth. Dr Bodel made observations about the shoulders which were ultimately confirmed by the radiological investigations. Dr Bodel’s examination of the shoulders showed pain and stiffness in both shoulders. The only explanation for those findings was the assault.
Although the radiological investigations suggested age-related pathology, Dr Bodel was of the view that the pathology was aggravated by the assault in a direct injury. Any pre-existing degenerative change was not causing symptoms or impairment prior to the assault.
Dr Nair recommended investigations of the shoulder be performed but never considered the radiology. Dr Bodel, on the other hand, made an educated guess in his first report which was later confirmed on receipt of the MRIs.
The applicant observed that Dr Nair found a functional deficiency at the shoulders but commented that radiology was required to verify the presence of injury. The applicant submitted that Dr Nair could not attribute the symptoms to the cervical spine without the radiological investigations.
In his first report, Dr Nair did not examine or take a history of shoulder symptoms. The second report also lacked a proper history in relation to the shoulders although symptoms radiating to the bicep region were noted. On examination, Dr Nair found a reduced range of movement in both shoulders but could not explain that in absence of radiology.
By Dr Nair’s own admission, radiological investigations were required before it could be said that there was no separate injury to the shoulders.
In his last report, Dr Nair was asked to consider whether there was a consequential condition. His opinion was based upon the absence of radiological evidence.
Radiological evidence was now at hand. Dr Bodel had considered that evidence, whereas
Dr Nair had not. The applicant submitted that Dr Nair’s opinions were not given in a fair climate. The Commission would prefer Dr Bodel’s opinions in those circumstances.
The applicant submitted that the matter ought to be remitted for assessment of all body parts, on the basis of either an injury or consequential condition had occurred at the shoulders.

Respondent’s submissions

The respondent referred the Commission to the articulation of the dispute in the s 78 notices.
Questions were raised as to the genuineness of the complaints at the applicant’s shoulders. The absence of any contemporaneous complaints of symptoms was “instructive”.
The respondent submitted that there was no treating medical evidence to support the proposition that there was a frank injury to the shoulders. The clinical notes showed no complaint regarding the left or right shoulders until Dr Bodel commented on the matter.
Dr Bodel’s report stimulated complaints and investigations of the shoulders. The certificates of capacity issued in respect of the injury contained no reference to the shoulders.
Referring the decision in Department of Education and Training vIreland[1] and noting the applicant’s submission that he sustained a frank injury, the respondent submitted that the only plausible view was that no injury had occurred and the applicant had reconstructed events subsequent to the opinion of Dr Bodel.
[1] [2008] NSWWCCPD 134.
The respondent submitted that Dr Nair had put forward a plausible alternative explanation for the applicant’s symptoms. The applicant was headbutted by one person. Immediately thereafter, the only complaint was about the nose. This later progressed to a complaint about the neck. A disc herniation was found at the neck on investigation. Dr Nair found that the functional impairment to the shoulders was the result of radiation from the cervical spine pathology.
The respondent submitted that the Rules required that decisions not be based on speculation. Dr Bodel’s opinion involved too much speculation and unfounded propositions.
The respondent noted that the applicant’s first statement referred only to symptoms at the nose and neck.
The first reference to shoulder symptoms in the clinical notes was on 28 June 2022. The applicant was said to have noticed left shoulder pain and lower chest pain a few days earlier after an argument with his father. Seven days later, the applicant gave a statement to the investigator in which there was no mention of the shoulder.
Dr Bodel’s first report in October 2021 also made no reference to the shoulders.
The clinical note on 7 February 2023 indicated that the applicant had requested an MRI on the advice of his lawyers. No treating doctor had told the applicant that he needed an MRI. Rather it was done at the suggestion of his lawyers.
The respondent submitted that the applicant’s subsequent statements referred to shoulder symptoms but with little explanation of how the shoulders were injured.
The respondent submitted that the applicant’s statement conflicted with the opinion of
Dr Bodel. The applicant’s statement was suggestive of a consequential condition due to overuse of the shoulders. This was in effect a restatement of the opinion expressed by
Dr Antoon. Dr Antoon’s opinion was given before there had been any radiological investigation of the shoulders and referred to consequential overuse of the trapezius muscles rather than the rotator cuff.
Dr Bodel only examined the applicant once by telehealth. Dr Bodel decided, without any radiology, and contrary to the applicant’s own version of events, that the applicant suffered significant rotator cuff pathology in the event itself.
The respondent submitted that the applicant had disingenuously tried to remedy the defects in Dr Bodel’s initial report through the subsequent deployment of MRIs.
The applicant was, however, a 57-year old man. Common sense dictated that some rotator cuff pathology was likely to be present given his age. The pathology identified at the shoulders was minor.
In circumstances where Dr Bodel conceded that there was degenerative pathology, and the pathology on MRI was minor, Dr Bodel’s suggestion that the MRI findings proved his theory was implausible and should not be accepted.
The respondent submitted that the applicant never said there was any involvement of the shoulders in the original incident. In all the circumstances, Dr Nair’s opinion was plausible and more compelling. The symptoms described by the applicant were typical of cervical disc disease. The possibility that the symptoms were attributable to the cervical spine was not canvassed by Dr Bodel.
The respondent submitted that the applicant had to overcome a series of hurdles before he could be found to have discharged his onus. These included the absence of contemporaneous complaints in either the medical evidence or the applicant’s first statement evidence; Dr Bodel’s telehealth exam; the conflict between the applicant’s statement evidence and the opinion of Dr Bodel; the benign radiological findings; and the fact the first mention of shoulder symptoms occurred following an argument with the applicant’s father. Radiological investigations were only ordered after the involvement of lawyers.
The respondent submitted that the mechanism of injury was not plausible. It was not plausible that there would be compensatory overuse of the shoulders. Nor did the mechanism of the injurious event indicate involvement of the shoulders.
The respondent submitted that the clinical notes showed regular attendance at consultations without any mention of the shoulders.
The respondent submitted that there should be an award for the respondent in respect of the shoulders.

Applicant’s submissions in reply

The applicant submitted that the respondent’s submissions going to credit could not be upheld without cross-examination of the applicant.
The involvement of the applicant’s lawyers in suggesting radiological investigations was in response to the issue highlighted by the expert reports. There was nothing inappropriate in those circumstances.
The lack of reference to the shoulders in the certificates of capacity was not determinative. The certificates were obtained to secure the continuation of payments of weekly benefits and did not constitute a detailed report.
Any speculation in Dr Bodel’s reports was based on his experience and expertise and subsequently cured with the radiological evidence.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i)      a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)      the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
I        does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
In the case of an injury pursuant to s 4(a) of the 1987 Act, the worker must also satisfy s 9A of the 1987 Act which provides:
(4)“9A   No compensation payable unless employment substantial contributing factor to inju          No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)    The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that worI(c) the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employIt,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)    A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)    This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
The test for establishing a consequential condition can be distinguished from that required to establish an “injury”. In this regard, the comments of Deputy President Roche in Moon v Conmah[2] at [45]-[46] are relevant:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[2] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[3] Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[3] [2013] NSWWCCPD 4.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[4] Snell DP referred to the decisions in Moon v Conmah[5] and Kumar v Royal Comfort Bedding[6] and observed:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.”
[4] [2016] NSWWCCPD 23.
[5] [2009] NSWWCCPD 134.
[6] [2012] NSWWCCPD 8.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[7] where Kirby P (as his Honour then was) said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[7] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained injuries or consequential conditions affecting his shoulders. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[8] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[8] [2008] NSWCA 246.
The applicant’s primary submission is that he sustained an ‘injury’ pursuant to s 4(a) of the 1987 Act in the assault on 22 September 2019. That is also the opinion given by Dr Bodel, who said the assault had resulted in an aggravation of degenerative pathology at the rotator cuff on both sides.
There is, however, no contemporaneous reporting of symptoms at the shoulders for more than two years after the incident.
In the intervening period, apart from the time when he was in Uganda, the applicant consulted his general practitioner several times a month, reporting facial and cervical spine symptoms, in addition to a variety of other complaints. On no occasion was any record made of symptoms at the shoulders or any investigation of the shoulders recommended. Certificates of capacity were issued in connection with the compensation claim with no reference to the shoulders.
During this period, the applicant provided a detailed statement to an investigator in connection with the claim in which he described the incident, his symptoms and treatment history. Again, there was no mention of symptoms at his shoulders.

The applicant’s second statement is difficult to reconcile with either his first statement or the clinical records. The second statement, which is expressed in notably different language and grammar to the first, described an immediate onset of symptoms at the shoulders for which the applicant sought medical treatment. That assertion is simply not borne out in the treating evidence.
The first occasion on which shoulder symptoms were identified was in Dr Bodel’s first report on 19 October 2021. The opinions given in that report were expressed, not after a physical examination conducted in person but a telehealth examination. No radiological evidence or treating medical evidence relating to the shoulders was available to Dr Bodel.
Dr Bodel noted a restriction of movement and complaints of pain at the front of the shoulders. Without any real explanation, Dr Bodel attributed those signs and symptoms to “significant rotator cuff pathology, aggravated by the assault”.
Not long after Dr Bodel examined the applicant, his general practitioners, who were seeing him in person on a regular basis, began recording bilateral paracervical and trapezius muscle pain.
In a clinical note recorded by Dr Antoon on 23 August 2022, paracervical muscle pain and trapezius pain was again noted. Dr Antoon also noted left shoulder pain but suggested that this may be referred from the cervical spine. The left shoulder was noted to be “non tender” and there was a full range of movement.
These observations in the clinical notes are broadly consistent with Dr Nair’s assessment of the applicant’s symptoms. After an in person examination, Dr Nair found radiation of pain from the cervical spine into the left upper extremity provoked by rotation of the cervical spine. Like Dr Bodel, Dr Nair found restriction of movement in the shoulders but he attributed this to paraesthesia and dysaesthesia in the trapezial region rather than mechanical factors or rotator cuff pathology. Provocative testing for impingement was negative. Dr Nair did not accept that there was any injury or consequential condition at the shoulders.
Dr Nair also noted that the mechanism of the incident was not consistent with there being an injury.
There is no explanation in the applicant’s statement, Dr Bodel’s reports or any of the treating evidence of the mechanism by which a head butt to the nose, which did not cause the applicant to fall, could cause an injury to both rotator cuffs. Nor is the mechanism obvious.
It is clear that there are pathological changes at the applicant’s shoulders shown on the MRI investigations done in late 2022 and early 2023. Despite Dr Bodel’s initial speculation that there would be “significant” rotator cuff pathology, the reports of the MRIs described mild degeneration. The pathology was conceded to be “minor” in Dr Bodel’s report of
10 January 2023, albeit sufficient to justify his assessment of impairment at the shoulders.
I do, however, agree with the respondent’s submission that, as a man in his late fifties, it is hardly surprising thatmild or minor degenerative changes were found at the applicant’s shoulders on radiological investigation irrespective of whether there had been an injury.
Dr Bodel’s reasoning is sparse and, in my view, unpersuasive. Essentially, he has taken the applicant’s complaints of pain and demonstrated restriction of movement together with the radiological evidence and concluded that there was an injury in the 2019 incident. In so concluding, Dr Bodel has not grappled with the two-year delay in reporting symptoms, explained the mechanism of injury or considered the possibility that the symptoms were referred from the cervical spine and trapezius muscles as suggested by both Dr Nair and the applicant’s general practitioners.
I accept that Dr Nair has not considered the radiological evidence in rejecting the proposition that the applicant had sustained an injury or consequential condition at the shoulders. There was, however, no radiological evidence in existence at the time of his reports. It is apparent that radiological investigation, at least of the right shoulder, was prompted by the applicant’s solicitors rather than the applicant’s doctors.
Whilst consideration of the radiological evidence would have provided a more complete basis for Dr Nair’s opinions, it is the applicant’s onus to demonstrate that there has been an injury. After careful consideration of the evidence and submissions, I am not satisfied that the applicant has discharged that onus.
As noted above, a separate question arises as to whether the applicant has sustained a consequential condition. The delay in reporting symptoms and the unclear mechanism of injury are not determinative of whether a condition at the shoulders has resulted from the injury.
The applicant’s own evidence and the report from Dr Antoon both suggest (in almost identical language) that there has been a consequential condition as a result of subconscious over use of the trapezius muscles and shoulders to compensate for limited function and chronic pain associated with the cervical injury.
As a matter of common knowledge and experience, it is not difficult to imagine that the applicant’s trapezius muscles could become stiff and painful as a result of the pain and limited function at his cervical spine. This proposition was accepted by Dr Nair who found that this explained, in part, the applicant’s upper limb symptoms. The trapezius muscles are, however, anatomically distinct from the rotator cuff, which was the area radiological investigated and found by Dr Bodel to be the source of the applicant’s impairment.
It is far less clear how the shoulder or rotator cuff could be “overused” to compensate for the condition at the applicant’s cervical spine. This has not been explained by Dr Antoon or considered by Dr Bodel. Dr Nair has specifically rejected the proposition, attributing the symptoms to dysaesthesia and radiation from the cervical spine as opposed to mechanical factors.
There is no doubt that there is some pathology at the rotator cuff. I also accept that the applicant’s shoulders were essentially asymptomatic prior to the work injury. Even if, contrary to Dr Nair’s view (which was expressed in the absence of the radiological evidence), the rotator cuff pathology is a source of symptoms, I am not satisfied that the onset or any increase in symptoms resulted from the work injury. Without expressing any view on the matter, factors such as the applicants age, work history and prior history of injury at the right upper limb could all account for such symptoms. The absence of any opinion on the matter from Dr Bodel and the lack of reasoning or explanation in Dr Antoon’s report and the clinical notes, leave me unsatisfied that the applicant has a consequential condition at either shoulder.
As the applicant has failed to discharge his onus of establishing either an injury or a consequential condition at his left and right shoulders, there will be an award for the respondent in respect of the shoulders.
In consequence of this finding, the claim for lump sum compensation in respect of the applicant’s physical injury is not capable of referral to a Medical Assessor.
The claim in respect of the primary psychological injury will be remitted for referral to a Medical Assessor for an assessment of the degree of permanent impairment.
There will also be a general order for the payment of s 60 expenses in respect of the accepted injuries or conditions.

[2023] NSWPIC 619

20 November 2023