Haisell v Australian Unity Home Care Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Haisell v Australian Unity Home Care Services Pty Ltd [2023] NSWPIC 287
APPLICANT:	Renee Haisell
RESPONDENT:	Australian Unity Home Care Services Pty Ltd
Member:	Rachel Homan
DATE OF DECISION:	19 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation in respect of accepted shoulder injury; whether consequential cervical spine condition; use of a sling and postural changes due to pain at shoulder; age-related pathology at the cervical spine; limited references to cervical symptoms in treating evidence; credibility; Held – the applicant sustained a consequential condition at the cervical spine as a result of the shoulder injury; matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to assess the degree of permanent impairment.
determinations made:	1. The applicant sustained a consequential condition at her cervical spine as a result of the injury to her right shoulder on 10 September 2018. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 10 September 2018 Body parts: Right upper extremity (shoulder) Skin (scarring) - consequential Cervical spine – consequential Method: Whole person impairment. 3. The materials to be referred to the Medical Assessor are to include all those admitted in the proceedings.

STATEMENT OF REASONS

BACKGROUND

Ms Renee Haisell (the applicant) was employed by Australian Unity Home Care Services Pty Ltd (the respondent) as a care worker. On 10 September 2018, the applicant sustained an injury to her right shoulder whilst pulling up a patient’s compression stocking. Liability for the injury was accepted by the respondent’s insurer.
The applicant proceeded to undergo arthroscopic subacromial decompression and rotator cuff repair surgery performed by Dr David Cossetto on 26 February 2019. The applicant was treated post-operatively with sling immobilisation. The applicant claims that she subsequently experienced a gradual onset of pain in her cervical spine.
On 8 June 2021, solicitors acting for the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim relied on an assessment by orthopaedic surgeon, Dr Charles New, of 26% whole person impairment (WPI) of the right upper extremity, skin (scarring) and cervical spine.
Liability to pay lump sum compensation was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) issued on 27 January 2022. The insurer disputed liability for the claimed consequential cervical spine condition as well as the degree of permanent impairment resulting from the injury. The insurer maintained its decision following an internal review in a further notice issued on 4 November 2022.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 28 March 2023. The applicant seeks lump sum compensation in accordance with Dr New’s assessment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a consequential cervical spine condition as a result of the injury to her right shoulder on 10 September 2018, and
(b) the degree of permanent impairment resulting from the injury on 10 September 2018.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 6 June 2023 via Microsoft Teams. The applicant was represented by Mr Stuart Moffat of counsel, instructed by Mr Martin Rowney and Ms Courtney Finn. Several observers from Mr Rowney’s office were also present. The respondent was represented by Ms Lyn Goodman of counsel, instructed by Mr Jeremy Xu. A representative from the insurer was also present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the respondent on 2 June 2023, and
(d)    report of Dr Cossetto dated 7 December 2022, lodged by the applicant on 6 June 2023.
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 dated 29 November 2022 and 28 March 2023.
The applicant described the injury on 10 September 2018. The applicant was assisting a client put on a compression stocking which extended from her ankle to her hip. While pulling the stocking over the client’s leg, the applicant experienced significant pain in her right shoulder girdle.
The applicant was unable to finish her shift and attend upon her general practitioner. The applicant returned to work on suitable office duties on 16 September 2018. By April 2020, the applicant was stood down as the employer could not continue to offer suitable duties.
On 13 September 2018, the applicant underwent an ultrasound which revealed a significant rotator cuff tear. The applicant was referred by her general practitioner to Dr David Cossetto, an orthopaedic surgeon. Dr Cossetto saw the applicant on 16 November 2018. An arthroscopic rotator cuff repair surgery was recommended.
In December 2018, the applicant underwent ultrasound guided injections.
On 26 February 2019, Dr Cossetto performed surgery at Nowra Private Hospital.
Dr Cossetto reviewed the applicant three months after the surgery. The applicant was told that as the tear to her shoulder was large to massive, her recovery would be slow. The applicant underwent physical therapy and hydrotherapy but continued to experience significant discomfort.
In or around September 2019, the applicant reported to her general practitioner and Dr Cossetto that she was continuing to experience discomfort in her shoulder and had also developed pain in the right side of her neck, radiating down to her hand. The applicant attributed this to the fact that, as a result of her shoulder injury and surgery, her “entire head carriage had changed”.
The applicant said that after the surgery, she was required to wear a sling. The applicant wore the sling for over three months. The applicant found it very hard to get to sleep with the sling on and did not sleep for more than two hours at a time. Instead of sleeping in bed, the applicant slept upright on the couch. The only position in which she could get anywhere near comfortable was with her head on her right shoulder.
The applicant said her neck pain developed over time and when it became severe and was not going away she reported to her doctor.
After the sling was removed, the applicant began to sleep in her bed again but did not sleep comfortably. The applicant needed to use two pillows to support her right shoulder. A wedge was provided by rehabilitation provider but it was too big and did not help. The applicant tried it once but did not use it thereafter.
The applicant described ongoing symptoms and disabilities resulting from her injury.

Medical and related treatment

A discharge referral from Batemans Bay Hospital dated 10 September 2018, indicated that the applicant was admitted in relation to a “shoulder strain” when putting on a compression stocking for a client. The applicant was discharged home with a “shoulder immobiliser sling” and instructed to follow up with her general practitioner.
The applicant’s general practitioner, Dr Xiao Luo, saw the applicant the same day. The applicant reported a right shoulder injury at work. On examination, the applicant was unable to perform active movements of the right shoulder due to pain. The applicant was referred for an x-ray.
On 11 September 2018, Dr Luo recorded a further consultation in which it was noted that the applicant’s right shoulder was in a sling. The applicant was referred for ultrasound.
In further consultations during the remainder of September 2018, the applicant continued to report pain and was referred to exercise physiology. On 9 October 2018, “pain at night” was noted. The applicant was referred to Dr Cossetto following a consultation on 23 October 2018.
The applicant’s physiotherapist, Paul Hawkins, reported on 24 October 2018 that the applicant’s right shoulder pain had not improved and suggested a cortisone injection.
An Allied Health Recovery Request dated 31 October 2018 noted that the applicant was unable to lay on her shoulder. The applicant’s capacity to engage in self-care was very limited and she was noted to have difficulty sleeping.
In a letter to Dr Luo, dated 16 November 2018, Dr Cossetto reported that the applicant’s pain interfered with her ability to sleep and caused difficulty driving and performing activities of daily living.
On 6 December 2018, Dr Cossetto reported that an MRI scan showed a very large rotator cuff tear involving the supraspinatus tendon. Associated with this was a large, antero-inferior acromial spur. Dr Cossetto recommended an arthroscopic rotator cuff repair with subacromial decompression. Preoperatively, a corticosteroid subacromial injection under ultrasound control was arranged to help the applicant through the Christmas period.
An operation report dated 26 February 2019 confirmed that a “large to massive” rotator cuff tear was identified during the shoulder surgery. The report noted:
“She will require sling immobilising for the 6 weeks and there will be no physiotherapy until after my review.”
An activities of daily living (ADL) assessment report was prepared on 3 April 2019 by Beneco. The report noted that high levels of pain had been an issue throughout the duration of the claim:
“Ms Haisell is currently unable to use her right upper limb post-surgery. The right arm is in a sling at all times, expect for when showering. Prior to surgery, Ms Haisell reported increased pain with any repetitive or prolonged upper limb activity.”
The Beneco report recorded that range of motion could not be assessed as the applicant’s right upper limb was in a sling and her pain levels were very high. In relation to the applicant’s functional tolerances, it was noted:
“Ms Haisell stated her sleep has been significantly impacted postsurgery. Ms Haisell takes the prescribed Mobic and Endone regularly throughout the day and into the evening. Ms Haisell estimated she doesn’t sleep for more than 2 hours at a time and usually sleeps in the couch, upright. Beneco spoke with EML and recommended the purchase of a bed wedge to allow Ms Haisell to sleep next to her husband in their bed.”
The report also noted that due to her high pain and general discomfort, the applicant was observed to constantly make postural changes during the assessment.
Dr Cossetto reviewed the applicant on 22 May 2019 and noted that given the large to massive tear, the applicant’s recovery would tend to be slow.
At a consultation with Dr Luo on 3 June 2019, it was noted that the applicant was “off sling” and was going to trial some office-based duties.
At a review on 4 September 2019, Dr Cossetto reported:
“She is still having some discomfort in the anterior aspect of the shoulder girdle and also some neck pain as well which radiates into the interscapular region. I suspect this should settle down with some continued therapy to the right shoulder. I have made her well aware that recovery from shoulder rotator cuff repair procedures can take up to
12-18 months in some cases.”
On 5 September 2019, Dr Luo recorded,
“normal ROM in right shoulder
some neck pain
likely due to postural issues and muscle spasmodics”
At a consultation on 19 September 2019, Dr Luo noted:
“right shoulder exam
no tender
limited movement of abduction and external rotation
some pain in neck for flexor
pain radiating from shoulder to lateral arm
job modification recommended”
The applicant was seen by occupational physician, Dr Andrew Keller, at the request of the insurer on 8 November 2019. In a report dated 20 November 2019, Dr Keller noted that general examination of the neck, back and lower limbs was normal. The applicant reported poor sleep due to her shoulder pain:
“She reported that she suffered from poor sleep only managing 5 hours a night before having to sit with a heat pack on her shoulder.”
Ongoing problems with the right shoulder were noted at reviews by Dr Cossetto in March and October 2020.
On 10 March 2020, Dr Luo, recorded that the applicant could not sleep on her right side due to shoulder pain.
General practitioner, Dr Angela Bennett, prepared referrals for an MRI scan of the cervical spine and Dr Ram Malhotra for nerve conduction studies on 18 December 2020.
On 5 January 2021, the applicant underwent an MRI of the cervical spine. The clinical history noted pain in the cervical spine and radiculopathy of the right arm. The MRI findings included multilevel degenerative changes in the cervical spine with severe right C6/7 neural exit foraminal stenosis and moderate to severe bilateral C5/6 neural exit foraminal stenosis.
On 15 January 2021, the results of the MRI were discussed with Dr Bennett and the applicant referred to the neurosurgical department at The Canberra Hospital.
A nerve conduction study was performed by Dr Malhotra on 11 February 2021. The study revealed neurophysiological evidence of mild, right-sided carpal tunnel syndrome. The rest of the right upper limb, sensory and motor conduction values and EMG were normal.
On 7 December 2022, Dr Cossetto prepared a report for the applicant’s solicitors. Dr Cossetto noted that prior to the injury, the applicant had not suffered any previous injury to her right shoulder or neck. Following the injury, the applicant was experiencing significant night-time pain, keeping her awake at night. It was noted that the applicant proceeded to surgery on 26 February 2019. Dr Cossetto reported:
“Postoperatively Mrs. Haisell was treated with 6 weeks of sling immobilisation followed by supervised physiotherapy. She was reviewed on a regular basis up till the 1st October 2020. At the visit dated 4th September 2019, some 6 months post-operatively, it was noted that Mrs. Haisell had almost regained pre-operative range of motion in the shoulder however she had developed neck pain with scapular discomfort. It was hoped that this would settle given more time and therapy.”
Dr Cossetto noted that he had not seen the applicant since 1 October 2020. Dr Cossetto was asked to comment on the current dispute and said he had been provided with Dr New’s reports. Dr Cossetto commented:
“Despite successful shoulder rotator cuff repair surgery Mrs. Haisell has had ongoing significant right shoulder girdle pain in the post-operative period up until the last consultation that I reviewed her. Subsequent to that she has decreased sensation in her right hand with symptoms and signs attributable to C6-C8 nerve root lateral stenoses as assessed by Dr. New and subsequently confirmed by MRI scan of the cervical spine.
In my opinion as a result of the injury to the right shoulder, Mrs. Haisell has developed right sided symptomatic neck C6-C8 nerve root lateral stenoses. This is not an uncommon occurrence following injury to a shoulder. The current cervical spinal symptoms are the result of exacerbation of previously underlying cervical lateral stenoses from C6-C8 made symptomatic by the injury, subsequent surgery and the subsequent post-operative rehabilitation program addressing weakness and decreased range of motion in the right shoulder. Therefore in my opinion the cervical spinal symptoms and signs are compensable.
As mentioned above, in my opinion Mrs. Haisell's cervical condition is related to and a direct result of the original right shoulder girdle injury.”

Dr New

The applicant relies on medico-legal reports prepared by orthopaedic and spinal surgeon, Dr Charles New.
In his first report, dated 25 November 2020, Dr New reported that the applicant had experienced pain in her neck and right shoulder including radicular pain into the C6 and C7 and partial C8 distribution since the injury. The applicant had no prior problems with her neck or radicular pain in her arm.
Examination of the cervical spine revealed tenderness over the cervicothoracic junction and pain into the right trapezius. Neuromuscular examination of the upper limb confirmed hypoaesthesia in the C6, C7 and C8 nerve root distribution. It was recorded that the applicant reported developing a cervical spine condition consequential upon the shoulder pathology. Dr New recommended a full investigation of the cervical spine pathology with MRI and upper limb nerve conduction studies and EMG.
Dr New reviewed the applicant on 22 April 2021 with the MRI of her cervical spine and nerve conduction study results. In a report dated 3 May 2021, Dr New made an assessment of 26% WPI comprising 15% WPI of the cervical spine, 12% WPI of the right shoulder and 1% WPI of the skin due to scarring.
In a supplementary report, dated 13 October 2022, Dr New noted that the applicant continued with neck and shoulder pain as well as referred and radicular pain into the C6 and C7 nerve root distribution. The applicant had reduction in movement of her flexion, extension, lateral bending and rotation of her cervical spine as well as cervicothoracic tenderness. Dysaesthesia and hypoaesthesia in the C6 and C7 nerve root distribution were noted.
Dr New noted the applicant’s maximum pain was at the cervicothoracic junction and was consistent with her radicular pain. The applicant had both signs and symptoms on examination. Dr New commented:
“The patient had had increasing neck pain with radicular pain in the arm following her shoulder surgery. As a spinal surgeon, this is not an unusual set of circumstances in a mature person who has age related changes in their neck and suddenly has a quite significant and different range of motion in the shoulder with compensation and develops a consequential injury. In attempting normal range of movement of their neck there is differing range of movement with the musculature and this is certainly what has occurred on this occasion.”
Dr New expressed the opinion that the applicant’s employment was “the substantial contributing factor to her cervical injury following on from her shoulder injury.” Dr New further observed:
“This patient is suffering from age related changes that you might expect in a 50 plus year old individual who is doing heavy lifting with patients. She states categorically that prior to her shoulder pathology she had not had problems with her neck and was working unrestricted.”
In his final report, dated 13 March 2023, Dr New noted that the applicant’s solicitor had written outlining that, following her surgery on 26 February 2019, the applicant was required to wear a sling for approximately three months. The applicant had quite considerable difficulties with normal sleep pattern and was required to sit in a chair with her sling to be comfortable. Dr New commented:
“Unfortunately, as a consequence of that, she adopted a sleeping position which resulted in her developing neck pain due to the fact that her neck was tilted to the side and, despite a bed wedge which had been approved, this had not significantly corrected that situation and she has had the onset of quite debilitating neck pain.
She had right sided radiculopathy, with pain, and dysaesthesia into the hand, which is still ongoing.”

Dr Machart

The respondent relies on medico-legal reports prepared by orthopaedic surgeon, Dr Frank Machart.
In a report dated 19 December 2021, Dr Machart recorded his findings on examination of the cervical spine as follows,
“No cervical tenderness. Symmetrical ROM, when moving the neck limited by pain in the shoulder. Reflexes present and symmetrical. Diminished sensation in the whole of the palm of the right hand.”
Dr Machart considered the MRI of the cervical spine in addition to various other documents.
Dr Machart noted there was no contemporaneous or historical evidence of a concurrent cervical spine injury. Dr Machart commented that the severity of the applicant’s symptoms and disability were complicated by an element of pain behaviour.
Dr Machart said he did not find symptoms in the cervical spine. The applicant did not allege an injury to the cervical spine. Cervical movement was painful but this was because of pain in the right shoulder. Asked whether the applicant had a consequential cervical spine condition as a result of the shoulder injury, Dr Machart responded that there was no consequential injury and said “the mechanism of injury was not in support of consequential injury.”
Asked to comment on Dr New’s opinion, Dr Machart responded:
“Dr New did not explain his reasoning in specifying that there was a consequential injury. No mechanism of injury was described in line with consequential injury. There was no supporting evidence from contemporaneous evidence and documents from doctors.”
In a supplementary report, dated 3 February 2022, Dr Machart recalled,
“There was no evidence that injury extended into other areas of the body specifically, no contemporaneous or historical evidence of concurrent cervical injury. There was no evidence in my IME pointing to the cervical spine as causing the symptoms of injury. There was an element of pain behaviour which complicated the physical presentation. I did not see evidence of consequential injury.”
Asked to comment further on his previous findings of diminished sensation in the palm of the right hand and neck pain during examination, Dr Machart said the limited movement in the neck was a sign which was not “pathognomonic of injury”. The diminished sensation in the palm of the hand was also not “pathognomonic of radicular defined pathology in the neck”.
Dr Machart commented,
“Cervical pathology was defined on MRI as moderate multilevel spondylosis. This is an age-related condition. Presence of this pathology did not define injury to the cervical spine.”
Asked whether there was any pain or condition or limitation in the neck that had been caused or contributed to by the right shoulder injury, Dr Machart responded:
“There was no injury to the neck. There is pathology, multilevel spondylosis. This was not symptomatic. Symptoms in the cervical spine were manifestation of the right shoulder injury.”
Asked to elaborate on what was meant by his previous comment that the mechanism of injury was “not in support of consequential injury”, Dr Machart explained:
“The mechanism of injury was concordant with right shoulder pathology. It would be difficult to come to the conclusion that 2 separate injured areas of the body, cervical spine and the right shoulder, were injured through the mechanism of injury concurrently, and remain symptomatic or pathological. The mechanism of injury was concordant with injury to the shoulder and not to the cervical spine.”
In a further report following a file review, dated 23 May 2023, Dr Machart summarised his previous reports. Asked to comment on Dr New’s reports, Dr Machart responded:
“The doctor did not comment on my opinion of the difficult to explain likelihood of having suffered concurrently serious injury to the neck causing disability at the same time as rupturing a rotator cuff, as to whether this is consistent with the mechanism of injury. The examination findings that doctor outlined in the most recent report were different to what was available to me.”
Asked to comment on Dr Cossetto’s report of 7 December 2022, Dr Machart responded:
“I am not aware of connection between shoulder pathology and secondary cervical injury. I have not seen any literature confirming such connection. It is evident from the treating doctor’s assessment, Dr Cossetto, that symptoms of cervical spondylosis or radicular symptoms were evident after the shoulder surgery. It is not clear exactly when. In absence of mechanical connection, I am not in agreement with Dr Cossetto’s assessment on the subject. Reason for doctor’s explanation do not follow physical or pathological path.”
In response to the references to neck pain in the general practitioner’s notes, Dr Machart commented:
“- Contemporaneous evidence of cervical injury or cervical symptoms were not evident for several months after the injury. The focus of the injury was on the right shoulder. Some neck pain was reported to the GP several months after the injury. Radicular symptoms were not reported till after the operation, not clear exactly when.
- There is no evidence of injury to 2 separate areas of the body, right shoulder and cervical spine at the time of the incident.
- There is evidence of cervical spondylosis. I have not seen evidence of cervical spondylosis caused or aggravated by the injury.
- The injury was low velocity, not consistent with injury pathology in 2 separate areas of the body.
- The cervical symptoms were incidental, developed well after the injury, and do not have connection to the injury by way of medically defined pathological link.”
Dr Machart reiterated his opinion that there was no cervical spine injury. Dr Machart noted that it was not standard practice to wear a sling for three months. Standard sling wearing post surgery was six weeks. Dr Machart gave the opinion:
“I did not see evidence of consequential injury to the cervical spine. I did not see evidence of how shoulder surgery on 26/2/2019 caused or materially contributed to the cervical pain or pathology. Wearing of sling or impaction on sleep could potentially have caused neck discomfort. This mechanism of injury did not have the capacity to cause substantial injury to the cervical spine, to the extent of causing radiculopathy or pathology at several levels in the spine. Explanation of the symptoms is multilevel spondylosis.”

Applicant’s submissions

The applicant noted that the right shoulder injury had been accepted. The applicant claimed a consequential condition to the neck due to postural changes and sleep changes. The applicant’s case was that the symptoms came on in 2019 and that there was an unbroken chain of causation between those symptoms and the shoulder injury. The applicant said the facts of the case were similar to those in the arbitral decision in Ralevski v Hanson Construction Materials Pty Limited.[1]
[1] [2023] NSWPIC 71.
The applicant referred to her statement evidence and submitted that there had been a severe right shoulder injury that had proceeded to surgery. The applicant required a pillow for support. The applicant described her postural changes following the surgery. The applicant could no longer sit straight in a chair and sat with her neck tilted. The applicant described sleeping upright on the couch, instead of sleeping in her bed due to pain.
The applicant noted that the records of Batemans Bay Hospital showed that she was provided with a sling on the day of the injury. Mr Hawkins, the applicant’s physiotherapist noted postural issues and difficulties laying on her shoulder. Dr Cossetto had reported on the applicant’s pain, interfering with her ability to sleep and engage in other activities. It was noted that the applicant would undergo six weeks of sling immobilisation post operatively. During the surgery, a large to massive rotator cuff tear was identified.
At the time of the Beneco report, the applicant was noted to still be wearing a sling and reporting high levels of pain. Although the applicant’s cervical spine movements were noted to be within normal limits, she was observed to make constant postural changes due to discomfort. The applicant was also recorded to have reported significant impacts on her sleep and needing to sleep upright on a couch.
The applicant submitted that the contemporaneous evidence was consistent with her statement evidence as to the evolution of her symptoms.
The applicant referred to the references to neck pain associated with the shoulder injury in the reports of Dr Cossetto and in the clinical records from Dr Luo. The results of the MRI scan were noted and the Commission taken to the opinions given by Dr Cossetto his report of 7 December 2022.
Although there was some difference in the opinions given by Dr Cossetto and Dr Luo, insofar as Dr Luo attributed the neck symptoms to muscular spasmodics and Dr Cossetto found the injury had caused symptomatic C6-C8 nerve root lateral stenoses, the applicant submitted that the opinions were consistent. Both doctors had expressed the view that the disruptions in the applicant’s posture had caused neck symptoms.
The applicant submitted that the treating doctor evidence was consistent with the opinions given by Dr New. Dr New explained the causal relationship. The wearing of a sling, considerable difficulties with sleep pattern and sitting in a chair with her neck tilted to the side had caused the onset of quite considerable neck pain. Although a bed wedge had been provided, the applicant explained in her supplementary statement that the wedge was too big.
The applicant noted that the certificates of capacity attached to the ARD identified ongoing symptoms at the applicant’s right shoulder. The certificates gave an indication of the progress of the shoulder symptoms although it was conceded that they did not refer to neck pain.

Respondent’s submissions

The respondent submitted that the certificates of capacity were significant because they only identified a shoulder injury. No mention of neck symptoms was recorded in any of the certificates, even after the complaints of neck pain were recorded in Dr Luo’s clinical notes. An inference should be drawn that the right shoulder injury was unrelated to the pathology at the cervical spine later shown on MRI. The respondent noted that there was extensive cervical pathology at multiple levels.
The respondent observed that there was no contemporaneous evidence of symptoms at the applicant’s neck apart from the entry on 5 September 2019 in Dr Luo’s clinical notes and the report from Dr Cossetto on 4 September 2019. Although the Beneco report described postural problems, there was no mention of neck symptoms in that report.
The respondent noted that Dr Luo was not given a history of the applicant sleeping sitting up with her neck resting on her shoulder as stated by the applicant. Dr Luo speculated that neck symptoms were likely to be due to postural issues but did not elaborate or suggest that they were caused by sleeping sitting up. The history of sleeping sitting up in a chair first appeared in the applicant’s most recent statement and was omitted from the first statement.
The respondent noted that there was an extended period of time in which there was no mention of the neck at all in the treating evidence, despite ongoing certificates of capacity being issued. It appeared that the complaints of neck symptoms on or around 4 and 5 September 2019 were isolated.
The respondent noted that Dr Keller had found the neck to be normal at the time of his examination of the applicant, which was soon after the complaints to Dr Luo and Dr Cossetto made in late 2019.
The respondent submitted that Dr New’s first report suggested an initial onset of neck pain in the injurious event, which was inconsistent with the applicant’s own evidence. Although Dr New found evidence of radiculopathy, the nerve conduction studies showed no abnormality other than carpal tunnel syndrome. Dr Machart found no evidence of radiculopathy.
The respondent noted the applicant’s evidence suggested she had worn a sling for approximately three months. Dr Cossetto’s treating reports indicated that the sling should only have been worn for six weeks.
The respondent further observed that the discharge referral from Batemans Bay Hospital indicated that the applicant had worn a sling prior to the surgery. No complaints of postural problems or not being able to sleep were recorded before the surgery. Postural issues were only a feature of the contemporaneous records in September 2019, some seven months after the surgery on the shoulder.
The respondent noted that Dr New’s comment that the applicant had age-related changes that might be expected in a person performing heavy work was irrelevant as the applicant had not made a claim of injury due to the nature and conditions of her employment.
The respondent submitted that the opinions of Dr Machart were to be preferred over those of Dr New. The respondent noted that, at Dr Machart’s initial examination, no pain at the neck was discerned, only pain on movement of the neck caused by the shoulder injury. Dr Machart excluded an injury to the neck at the same time as the injury to the shoulder. Dr Machart noted that assessment of the applicant was complicated by an element of pain behaviour.
Dr Machart found there was no consequential injury and commented that Dr New had not explained his reasoning for finding that there was a consequential injury.
The respondent drew attention to Dr Machart’s view that the limited movement in the neck not pathognomonic of injury nor was the diminished sensation in the palm of the hand. Dr Machart said the cervical pathology defined on the MRI was age-related.
Dr Machart did not consider the pathology at the neck to be symptomatic but said the signs at the cervical spine were a manifestation of the right shoulder injury.
The respondent submitted that it was not disputed that the applicant had a considerable injury to her right shoulder. The only reports of neck symptoms in the treating evidence were found in September 2019. There was then a considerable gap in the evidence until the applicant underwent an MRI in January 2021. The neck was not identified as symptomatic in any of the certificates of capacity. The nerve conduction studies did not support a finding of radiculopathy but suggested the applicant had symptoms of carpal tunnel syndrome. There was evidence of non-organic pain behaviour. The respondent submitted that the Commission would not be comfortably satisfied that there was a consequential condition of the neck.
The respondent submitted that the opinion given by Dr New about the impact of postural issues on the neck symptoms was provided late in the piece. Postural complaints only surfaced in 2023 despite there being many opportunities to mention that mechanism earlier. The respondent submitted that there was an issue as to the credibility of the applicant’s evidence and that her evidence should only be accepted where corroborated by the contemporaneous evidence.
The respondent noted that there were inconsistencies between the opinions of Dr Cossetto and Dr New. Dr Cossetto formed the view that stenosis had developed following the injury to the shoulder. Dr Cossetto considered the pathology to be a direct result of the surgery.
The respondent noted that in his final report, Dr Machart considered that any cervical symptoms were incidental and not connected to the injury by way of a medically defined pathological link. There was no evidence linking cervical spine symptoms to the wearing of a sling and Dr Machart could not identify any literature confirming such a connection. Dr Machart disagreed with Dr Cossetto’s assessment and said his explanation did not follow a physical or pathological path.

Applicant’s submissions in reply

In response to the respondent’s submission that the complaints of neck pain in September 2019 were isolated, the applicant drew attention to Dr Cossetto’s suggestion that the symptoms would settle with therapy to the right shoulder. It had been the applicant’s expectation that the ongoing treatment of her shoulder would fix up her neck.
The history of postural complaints recorded in the applicant’s statement evidence was also set out contemporaneously in the Beneco report.
The applicant’s evidence was that the symptoms came on gradually and it was only once they were severe and not going away that she reported them to her doctors. The applicant submitted that her statement evidence was consistent with the treating evidence. There were also gaps between the consultations recorded in the evidence.
It was not necessary for the applicant to establish the presence of radiculopathy or even pathology. The nerve conduction tests were not relevant and more related to the function of the peripheral nerves.
The applicant submitted that Dr New had a correct history which supported his opinion.
The applicant submitted that in his final report, Dr Machart conceded the connection between shoulder pain and the applicant’s neck pain. Dr Machart was looking for evidence of an injury or pathology caused by injury and, in doing so, applied the wrong test. Dr Machart agreed that wearing a sling could cause neck discomfort. The history of postural change and changes in sleep pattern was never provided to Dr Machart.
The applicant submitted that Dr Machart’s concession that wearing a sling created postural issues and discomfort was consistent with the contemporaneous evidence of postural issues, the treating evidence and the evidence from Dr New.

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
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It is accepted that the applicant sustained an injury for the purposes of s 4 of the 1987 Act to her right shoulder on 10 September 2018. What is in dispute in these proceedings is whether the applicant has sustained a consequential condition at her cervical spine as a result of the injury to her right shoulder.
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 she sustained a consequential condition affecting her cervical spine. 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.
In the present case, the injury to the applicant’s right shoulder is well described in the lay and treating medical evidence. I am satisfied that the injury to the applicant’s right shoulder on 10 September 2018 resulted in a sudden onset of significant symptoms of pain and restriction of movement.
The discharge referral from Batemans Bay Hospital indicates that the applicant was placed in a sling on the same day as the injurious event although it is not clear how long the sling was worn prior to the surgery performed by Dr Cossetto in February 2019. The records pertaining to that surgery indicate that a large to massive rotator cuff tear was identified and repaired. Dr Cossetto confirmed that due to the nature of the tear, the applicant’s recovery would be slow.
Post-operatively, the contemporaneous treating evidence confirms that the applicant’s shoulder was immobilised in a sling. It was initially expected that the sling would be worn for six weeks. At the time of the Beneco report on 3 April 2019, the sling was still being worn. Although it is unclear when precisely the sling ceased to be worn, it does appear that the applicant had stopped wearing it by the time of her consultation with Dr Luo on 3 June 2019.
The applicant says the use of the sling contributed to the gradual onset of symptoms at her cervical spine. The use of the sling is not, however, the only contributing factor relied upon by the applicant. The applicant has described how the persisting symptoms of significant pain impacted upon her posture and in particular, her pattern of sleeping.
The clinical records of Dr Luo, his certificates of capacity, and the treating reports from Mr Hawkins and Dr Cossetto confirm that the applicant continued to be troubled by significant pain at her right shoulder, both pre-and post-operatively.
Reports of pain affecting the applicant’s ability to sleep first appeared in the records of Dr Luo in October 2018. Those records referred to pain at night, not being able to lay on the shoulder and difficulty sleeping. Dr Cossetto also took a history of pain interfering with the applicant’s ability to sleep around this time.
Although I accept that Dr Luo’s records did not specifically refer to the applicant’s account of sleeping upright, sitting in a couch, these early records are not inconsistent with that evidence. The purpose for which the records were prepared must be borne in mind consistently with the cautioning in Mason v Demasi.[9]
[9] [2009] NSWCA 227.
A more detailed account of the manner in which the applicant’s shoulder pain was impacting upon her posture and sleep is contained in the Beneco report, prepared about six weeks after the surgery. This report confirmed that the applicant’s pain levels were very high and she was wearing a sling at all times unless showering. The report recorded that the applicant was usually sleeping on the couch, upright. The applicant was observed to make constant postural changes during the assessment.
The applicant’s evidence is that she noticed a gradual onset of neck symptoms during this post-operative period.
I accept the respondent’s submission that there is no record in the medical evidence, including the Beneco report, to neck symptoms other than the references contained in Dr Luo’s notes and Dr Cossetto’s report in September 2019 until after the applicant was seen by Dr New. Those references are, however, significant insofar as they confirm both the onset of symptoms but also an association between the neck symptoms and postural changes caused by the shoulder injury.
Dr Luo recorded that the neck pain was likely due to postural issues and muscle spasmodics. Dr Cossetto also indicated his view, at the time, that the neck symptoms would settle with the continued treatment of the right shoulder. Both doctors described pain radiating from the neck into the upper limb at this time.
There is then a gap is the treating evidence insofar as neck symptoms are concerned. I do not infer, however, that neck symptoms had ceased. The applicant’s own evidence is that symptoms continued. The advice of her doctors at the time suggested that the neck symptoms would improve as the shoulder symptoms improved. There are ongoing references to shoulder pain and being unable to lay on the shoulder in the treating evidence during this period.
I have also considered the respondent’s submission that Dr Keller’s report in late 2019 recorded a normal examination of the cervical spine. I accept that there is no reference to cervical spine symptoms in that report. While I have given this circumstance weight, I am also mindful that this was a report focused on the effects of the applicant’s shoulder injury on her capacity to work. A consequential cervical spine condition had not, at that point in time, been claimed. Dr Keller did not explain in any detail his findings on clinical examination of the cervical spine. In all the circumstances, this is unsurprising.
When the applicant was first seen by Dr New in November 2020, he did find clinical evidence of tenderness at the cervicothoracic junction and into the right trapezius. Dr New’s neuromuscular examination confirmed hypoesthesia in the C6-C8 distribution. The applicant gave an account of cervical symptoms consequential upon the shoulder pathology.
Dr New’s findings are consistent with both the symptoms and history recorded by Dr Luo and Dr Cossetto in late 2019.
Dr New’s examination appears to have prompted further investigation of the applicant’s cervical symptoms through MRI and nerve conduction studies. After reviewing the MRI results, Dr New made an assessment of WPI resulting from the work injury that included the cervical spine.
Other than a reference to neck symptoms “since the injury”, which I accept is inaccurate, no explicit opinion on the causal relationship between the neck symptoms and the work injury was provided until Dr New’s supplementary report of 13 October 2022.
In his report of that date, Dr New noted that the applicant continued with neck and radicular pain as well as dysesthesia and hypoesthesia in the C6 and C7 nerve root distribution. Dr New commented that increasing neck pain was not an unusual circumstance following shoulder surgery. On a background of age-related changes, a significant and different range of movement in the musculature had caused a consequential condition.
The respondent has noted that a history of neck symptoms due to sleeping sitting up was not provided to Dr New until 2023. Whilst I accept that submission, I do not draw any adverse inference in relation to the applicant’s credibility. The history of postural changes, including sleeping sitting up on the couch was documented contemporaneously in the Beneco report and is consistent with the other accounts of postural changes in the treating evidence.
In his final report, and armed with the full history relied upon by the applicant in the current proceedings, Dr New noted the use of a sling and difficulties sleeping, including sleeping sitting in a chair, and gave the view that neck pain developed as a consequence of those postural changes.
Dr New’s opinion on the causal relationship between the shoulder injury and the onset of neck pain is, in my view, broadly consistent with the opinion given by Dr Cossetto in his 7 December 2022 report.
Dr Cossetto considered that the applicant’s symptoms were the result of an exacerbation of previously asymptomatic underlying lateral stenoses at C6-C8. I do not read Dr Cossetto’s report as suggesting that such pathology was caused by the shoulder injury. Rather, he explicitly stated that the pathology was made “symptomatic” by the injury, surgery and the subsequent decreased range of motion in the right shoulder.
Notwithstanding the respondent’s submissions to the contrary, the views of Dr New and Dr Cossetto receive some support from Dr Machart’s reports. Although Dr Machart’s initial report found no cervical tenderness, he did find that neck movement was limited by pain and noted hypoesthesia in the right hand. Despite his earlier view that symptoms on movement of the neck were a manifestation of the shoulder injury, by the time of his final report, Dr Machart appears to have considered it possible that such symptoms were explained by the pathology seen on MRI investigation, although he considered them incidental. In his final report, Dr Machart also accepted that wearing a sling and its impact on sleep could cause neck discomfort.
Dr Machart’s reports are, however, notable for his apparent preoccupation with the question of whether or not there was an “injury” to the cervical spine in the event on 10 September 2018. His opinions in this regard are not responsive to the applicant’s case. Even when asked to consider the correct test for a consequential condition, Dr Machart returned repeatedly to the lack of contemporaneous evidence of a cervical “injury”, the delayed onset of symptoms, the low probability of injury to two separate areas of the body and the mechanism of the initial injury.
To the extent that Dr Machart has eventually considered whether there is a consequential condition, he again appears to have focused his attention on the incorrect questions of whether the pathology at the cervical spine was caused or aggravated by the shoulder injury. As indicated by the authorities cited above, the applicant need only establish the onset or an increase in symptoms and restrictions resulting from the shoulder injury.
Dr Machart’s references to abnormal pain behaviour are not replicated elsewhere in the expert or treating evidence. Rather the evidence is of a significant, painful shoulder injury from which recovery was expected to be slow.
Dr Machart’s view that the pathology at the cervical spine was age-related is consistent with the opinions given by Dr New and Dr Cossetto. Unlike the applicant’s doctors, Dr Machart did not, however, adequately grapple with the question of whether that pathology could have been rendered symptomatic by the postural changes associated with the shoulder injury. There is nothing in the evidence to suggest that the cervical spine was symptomatic prior to the shoulder injury.
Dr Machart’s opinion that the onset of symptoms was “incidental” stands apart from the opinions of Dr New and Dr Cossetto and the notes of Dr Luo. It also fails to engage with Dr Machart’s own concession that the wearing of a sling and the impact of the injury on sleeping posture could cause neck discomfort.
I have also noted the respondent’s submissions with respect to the evidence of carpal tunnel symptoms. No doctor in the proceedings has, however, suggested that the right limb symptoms were accounted for entirely by these findings.
For the reasons given above, my weighing of the evidence leaves me satisfied that a consequential condition at the applicant’s cervical spine has resulted from the right shoulder injury.
The degree of any permanent impairment at the cervical spine will be a matter for a Medical Assessor to assess.
There will be an order remitting the matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment at the right upper extremity (shoulder), skin (scarring) and cervical spine as a result of the injury on 10 September 2018.

[2023] NSWPIC 287

19 June 2023