Hwang v Ngoc Mai Tu Trading as Eastwood Pharmacy

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Hwang v Ngoc Mai Tu Trading as Eastwood Pharmacy [2023] NSWPIC 243
APPLICANT:	Chio Mai Hwang
RESPONDENT:	Ngoc Mai Tu trading as Eastwood Pharmacy
Member:	Michael Moore
DATE OF DECISION:	26 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments; disease injury pleaded; applicant’s counsel confirmed two separate diseases alleged with the injury being in the nature of an aggravation, acceleration, deterioration under section 4(b)(ii); issue as to whether one or both diseases aggravated and whether employment main contributing factor to the aggravation; also issue as to incapacity as a consequence of any such injury; Held – on the facts, the cause of the applicant’s injury was the aggravation of one disease only; applied Federal Broom Co Pty Ltd v Semlitch in considering whether aggravation had occurred; applied AV v AW as the test of causation under section 4(b) and found that the employment was the main contributing factor to the aggravation of the disease; found some current work capacity on the evidence.
determinations made:

The Commission determines:

The applicant suffered an injury arising out of or in the course of her employment with the respondent in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease being degenerative cervical spondylosis where the employment was the main contributing factor to such aggravation, acceleration, exacerbation or deterioration.
The deemed date of injury is 18 November 2020 being the date of incapacity and the date of the claim for weekly compensation.
The applicant did not suffer any injury to her left or right shoulder or both shoulders in the nature of the aggravation, acceleration, exacerbation or deterioration of a rotator cuff tear, tendinopathy or sub acromial bursitis nor did the employment cause any such condition.
From 22 March 2022 to date the applicant has been partially incapacitated for her employment as a consequence of the work injury.
Since 22 March 2022 the applicant has had current work capacity to of 20 hours per week doing light work earning $21 per hour.
The applicant’s pre-injury average weekly earnings were $925.42 per week.
The applicant has not been in employment since 22 March 2022 to date.

The Commission Orders:

There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act at the rate of $320.34 per week from 23 March 2022 to 21 February 2023.
There will be an award that the respondent pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to s 60 of the 1987 Act.
There will be an award for the respondent in respect of the allegation of injury to the applicant’s left and right shoulders.

STATEMENT OF REASONS

BACKGROUND

Chio Mai Hwang (the applicant) was born in 1972 and is presently 50 years of age. She was born in Cambodia and migrated to Australia in 1988. The applicant attended Cabramatta High School for one year after which she left school.
The applicant’s employment history is not entirely clear from the evidence however it appears that she had some experience working in a customer service role at a Cabramatta Pharmacy before starting work for Ngoc Mai Tu trading as Eastwood Pharmacy (the respondent) in approximately 2010.
The applicant claims limited English skills in particular noting that her reading and writing skills in English are basic in nature.
The applicant’s statement sets out that the applicant was working for the respondent on a full time basis doing packing work.
The applicant states that her work involved packing products into boxes to be sent to China as well as restocking the shelves in the pharmacy. The work involved repetitive bending and lifting.
The packages prepared by the applicant weighed between 3 and 7.5 kilograms.
The applicant claims that after starting work for the respondent in 2010 she noted intermittent aching pain in her right shoulder but by 2019 there was increasing pain in her neck and both shoulders.
The applicant saw her general practitioner Dr Alan Wong on 30 October 2020 when she gave a history of long standing pain in the right arm from her shoulder to her elbow with numbness. She advised the doctor that the pain was worse with exertion and work.
The applicant was referred to Dr Alexander Woo orthopaedic surgeon by the general practitioner and was she seen by Dr Woo on or about 5 November 2020.
Dr Woo diagnosed a right shoulder rotator cuff strain and the applicant was referred for ultra-sound-guided cortisone injection.
It appears that the cortisone injection was of limited or little benefit.[1]
[1] Application to Resolve a Dispute (the Application) p76.
The applicant states that eventually she ceased work on 18 November 2020 because of the level of pain she was experiencing.
The applicant was subsequently referred for physiotherapy and given the persistence of symptoms was later referred to Dr Clive Sun rehabilitation and pain specialist and Dr David Lieu orthopaedic surgeon for further treatment in September 2021.
Dr Lieu saw the applicant around 14 October 2021 and diagnosed the applicant as suffering from significant stenosis at the C5-6 level being a degenerative cervical disc disease[2] and further expressed the view that there was no significant pathology in the shoulders.[3]
[2] Application pp 90-91.
[3] Application p 85.
After seeing Dr Lieu the applicant was referred to Dr Randolph Gray an orthopaedic surgeon specialising in spinal surgery.
Dr Gray saw the applicant on 25 November 2021 and diagnosed right C5 radiculopathy and arranged for a right C6 nerve root injection.
A claim for Workers Compensation was made and weekly benefits were paid to the applicant from 18 November 2020 to 21 March 2022 with medical and related treatment expenses being paid to 8 March 2022.
The respondent gave notice of its decision to decline liability by way of a notice issued under s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) dated 1 March 2022.
The s 78 notice identified as the matters in dispute the following terms;
“1.     Whether you have a workers compensation injury/injuries as defined in section 4 of the 1987 Act.
2.     Whether your employment is a substantial contributing factor to your injury/injuries in accordance with section 9A of the 1987 Act.
3.     Whether you are entitled to compensation for weekly compensation for you claimed injury/injuries in accordance with section 33 of the 1987 Act.
4.      Whether you are entitled to compensation for medical or related expenses for your claimed injury/injuries in accordance with section 60 of the 1987 Act.
5.      Whether you are entitled to compensation for permanent impairment for your claimed injury/injuries in accordance with section 66 of the 1987 Act.”[4]
[4] Application p 106.
The s78 notice went on to state;
“We advise that, after having carefully considered the available evidence, we have determined the following decision on the above matters:
1.Guild Insurance determines that you do not have an injury/injuries as defined under section 4 of the 1987 Act.
2.Guild Insurance determines that if it is determined that you do have an injury/injuries as defined under section 4 of the 1987 Act, that your employment is not a substantial contributing factor to your injury pursuant to section 9A of the 1987 Act.
3.Due to the above determinations, Guild Insurance also determines you are not entitled to compensation for weekly compensation for your claimed injury/injuries under section 33 of the 1987 Act.
4.Guild Insurance also determines you are not entitled to compensation for medical or related treatment for your claimed injury/injuries under section 60 of the 1987 Act.
5.Guild Insurance also determines you are not entitled to compensation for permanent impairment for your claimed injury/injuries under section 60 (sic) of the 1987 Act.”
The s 78 notice set out that in coming to its decision the respondent relied mainly on the opinion of Dr Raymond Wallace orthopaedic surgeon who had been qualified as an independent medical examiner by the respondent. Dr Wallace’s opinion was set out in his report dated 7 February 2022.
On 5 September 2022 the solicitors wrote to the insurer of the respondent serving a medical report from Associate Professor Nigel Hope dated 22 August 2022 and requested a review of the decision to dispute liability dated 1 March 2022.
By a notice dated 19 September 2022 under s 287A of the 1998 Act the insurer advised the applicant that the decision of 1 March 2022 to decline liability was maintained.
On 27 February 2023 the applicant filed the application alleging that the applicant suffered an injury in the nature of a disease with a deemed date of injury of 18 November 2020 and seeking weekly compensation from 23 March 2022 to 21 February 2023 under s 37 of the Workers Compensation Act 1987 (the 1987 Act) and payment of reasonably necessary medical and related treatment expenses.
The application pleaded that the applicant had suffered a disease injury with a deemed date of injury of 18 November 2020. The injury was alleged to be to the right shoulder, left shoulder and cervical spine. No other allegation of injury was pleaded.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Whether the applicant sustained an injury in the nature of the aggravation, acceleration, exacerbation or deterioration of a disease arising out of or in the course of her employment as defined in s 4(b)(ii) of the 1987 Act and if so what was the nature of such injury and to what part or parts of the applicant’s body.
(b)    Whether the applicant’s employment was the main contributing factor to any such injury.
(c)    Whether the applicant’s employment was a substantial contributing factor to any injury arising out of or in the course of the applicant’s employment as required by s 9A of the 1987 Act.
(d)    If the applicant sustained an injury arising out of or in the course of her employment whether she suffered an incapacity for employment as required by s 33 of the 1987 Act and if so the extent of such incapacity.
(e)    If the applicant sustained an injury arising out of or in the course of her employment was she entitled to payment of her reasonably necessary medical and related treatment expenses under s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.

Oral evidence

No oral evidence was given.

Appearances

At the hearing Ms Nicole Compton of counsel appeared on behalf of the applicant instructed by Brydens Lawyers Pty Limited and Mr Andrew Parker of counsel appeared on behalf of the respondent instructed by Lee Legal Group.

FINDINGS AND REASONS

Injury

As noted the first issue for decision is whether the applicant suffered an injury in the nature of the aggravation, acceleration, exacerbation or deterioration of a disease or arising out of the course of her employment with the respondent.
The application pleads that the applicant suffered an injury to her shoulders and cervical spine on 18 November 2020 that was a disease injury.
The application as filed did not identify whether the injury is alleged to be one that falls under s 4(b)(i) or under s 4(b)(ii) of the 1987 Act and it does not identify the particular disease from which it is alleged the applicant suffers.
In her submissions Ms Compton clarified that the applicant was alleging an injury under s 4(b)(ii) of the 1987 Act and in the course of submissions further clarified that the applicant’s case was that the applicant’s employment had aggravated accelerated exacerbated or caused deterioration of two diseases namely a degenerative disease of cervical spondylosis and a degenerative disease of the applicant’s rotator cuffs.
Section 4(b)(ii) relevantly defines a “disease injury” as follows;
“(i) 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,”
Accordingly to succeed in her claim the applicant needs to establish that she suffers a disease or diseases and that her employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease or those diseases.
Ms Compton submitted that the applicant had a long period of employment with the respondent and throughout that period of employment she had performed repetitive lifting duties where the applicant was required to lift packages weighing up to seven kilograms.
Ms Compton detailed the history of the onset of symptoms in October 2020 when the applicant saw her general practitioner complaining of pain in the right shoulder extending to the elbow with numbness present.
Ms Compton detailed the subsequent history of treatment and argued that in the light of that history the opinion of Associate Professor Nigel Hope (in his report dated 22 August 2022)[5] that the applicant suffered cervical C5/6 discopathy together with right and left shoulder rotator cuff tears to which employment was a substantial contributing factor should be accepted.
[5] Application pp 143-147.
Ms Compton further argued that Dr Raymond Wallace (who had provided a qualified medical report dated 7 February 2022[6] for the respondent) had applied the wrong test in coming to his opinion as he had not applied the test of injury under s 4(b)(ii) of the 1987 Act.
[6] Application pp 97-104.
Mr Parker for the respondent argued that in relation to injury the applicant suffered from degenerative conditions in both the neck and shoulders and while injury to the neck applying s 4(b)(ii) of the 1987 Act was possibly arguable the allegation of injury to the shoulders clearly was not.
Mr Parker argued that while there was evidence of a degenerative condition in the applicant’s neck the applicant could not establish a disease injury to the applicant’s shoulders on any view of the evidence.
Mr Parker pointed out that in his view that the doctors relied upon by the applicant had applied the wrong test of causation and had not considered whether the employment was the main contributing factor to the claimed injury under s 4(b)(ii) of the 1987 Act and referred in particular to the decision of Deputy President Snell in AV v AW[7] which he submitted set out the correct test to be applied in a case where an aggravation of a disease type injury was alleged.
[7] [2020] NSWCCPD 9.
Mr Parker essentially submitted that while an injury to the neck in the nature of an aggravation of a disease was arguable the applicant bore the onus to establish that the work was the main contributing factor to the aggravation and had failed to do so.
When looking at the evidence to determine the nature of any such injury or injuries the starting point in my view is the initial attendance by the applicant with her general practitioner Dr Alan Wong on 30 October 2020 where the history given was of longstanding pain in the right arm from her shoulder to her elbow which was worse with physical exertion and work (emphasis added). A history of lifting boxes of up to 7 kilograms was also recorded.[8]
[8] Application p 137.
On examination on 30 October 2020 there was mild to moderate tenderness at the right biceps and mild tenderness at the left biceps.
The applicant was referred for physiotherapy and to Dr Alexander Woo orthopaedic surgeon. The diagnosis recorded by Dr Wong was one of right biceps tendonitis.
Dr Woo saw the applicant on 5 November 2020 when she is recorded as having complained of increased right shoulder pain since June 2020 (having first noticed right shoulder pain about two years after commencing work with the respondent). The applicant also complained of numbness in the right upper arm and forearm.[9]
[9] Application p 6.
Dr Woo reported that an MRI of the cervical spine showed minor disc bulges with no neural compromise. This comment by Dr Woo is something of a mystery in that the other specialist doctors in the case all report that what appears to be the same MRI as showing significant cervical stenosis at the C6 level with severe foraminal narrowing.
An ultrasound of the right shoulder was reported by Dr Woo as showing a small partial tear of the supraspinatus and mild subdeltoid bursitis.[10]
[10] Application p 6.
Dr Woo diagnosed a right rotator cuff strain related to the nature and conditions of the applicant’s employment and referred the applicant for an ultrasound guided cortisone injection.[11]
[11] Application p 6.
The applicant next saw her general practitioner Dr Wong on 18 November 2020 at which time she is recorded as reporting that the pain had extended to the applicant’s left shoulder and that she ceased work on that date.[12]
[12] Application p 136.
The applicant saw Dr Wong on another 37 occasions between the 18 November 2020 and 24 September 2021[13] where she was treated for her complaints of pain in the arms and shoulders.
[13] Application pp 122-137.
The treatment during that time appears to have been based on Dr Woo’s diagnosis of a right rotator cuff strain and involved inter alia extensive physiotherapy, analgesia and anti-inflammatory medication.
Despite ceasing work on 18 November 2020 and not working thereafter apart from a couple of trials of light work for what appears to be no more than one or two days work on each occasion the applicant’s condition appears to have worsened at various times.
Although the first reference to left shoulder pain appears in the entry made by Dr Wong on 18 November 2020 when he recorded “Pain now also extending to involve L shoulder”[14] by 8 January 2021 Dr Wong recorded that “L shoulder pain becoming worse”.[15]
[14] Application p 136.
[15] Application p 134.
Significantly in my view the applicant was seen by Dr Wong on 30 January 2021 and at that time he recorded that;
“Pain is now more severe than before initiating WC claim when patient was at work but no treatment”.
At the same consultation Dr Wong recorded a history that:
“Pulling on the yellow rubber band for 4/7 resulted in worsening pain which occurs when she sleeps. Then stopped for 3/7 with improvement. Last visit with physiotherapist yesterday. Exercises changed to cervical rotation with towel.”[16]
[16] Application p 133.
From experience with many cases involving shoulder injuries I understand the pulling on the yellow band to be an exercise prescribed by the physiotherapist to improve shoulder function and strength where the different coloured bands represent different degrees of resistance.
In February 2021 there was a change in physiotherapist recorded by Dr Wong but there remains in the doctor’s records ongoing complaints of worsening of symptoms at the times of treatment by a physiotherapist albeit with some improvement some days after the treatment was given.[17]
[17] Application p 132.
The applicant underwent a cortisone injection in March 2021 as suggested by Dr Woo with what appears to have been very limited success.
During the period between 18 November 2020 and 24 November 2021 there was a progression of symptoms with pain being found down the arms and into the applicant’s wrists.[18]
[18] Application pp 128-129.

On 24 September 2021 Dr Wong saw the applicant and due to the unavailability of Dr Woo (as a consequence of COVID restrictions) Dr Wong referred her to another orthopaedic surgeon Dr David Lieu for treatment as well as to Dr Clive Sun pain specialist for pain management.
Dr Lieu saw the applicant on or about 14 October 2021 and provided a report to Dr Wong where he reported as follows:
“Thank you for referring Ms Hwang in regards to her bilateral shoulder pain. She is a right hand dominant 49-year-old lady who presents with a longstanding history of pain in both shoulders. She is a disordered historian. She works as a pharmacy assistant. She reports pain for over 10 years. This has slowly worsened each year but was manageable up until November of last year. The pain is increased and she has been unable to continue work.
The right side has generally been worse. There is diffuse pain throughout the shoulder girdle. It is worse at night and when lying down. Her shoulders feel weak and she has difficulty with forward elevation and reaching behind her back.
All of her activities of daily living are difficult. She struggles to lift heavy objects. There is no significant clicking in the shoulder. She has had a previous cortisone injection in the subacromial space on the right shoulder with no benefit. She had physiotherapy up until the start of the current lockdown period.
I note that she was under the care of another orthopaedic surgeon, Dr Alexander Woo in Strathfield. His office has been closed during the current lockdown. She is unaware of any further management plan since she has had her cortisone injection.
She denies any other major medical problems. Clinically there was minimal tenderness around her shoulder. She had 140 degrees of forward elevation, internal rotation to L1 and 50 degrees of symmetrical external rotation. Her rotator cuff was weak and slightly irritable within this range. There was however no impingement pain. Her biceps was not irritable.
I reviewed her radiology. There is an MRI scan of her cervical spine, as well as an ultrasound of her shoulder from last year. Concerningly, there is significant stenosis at the C5-6 level in both neural foramina which would explain the bulk of her symptoms. I would recommend a referral to a spine surgeon for further management. I suspect that surgery may be required.
She does not have any major features of adhesive capsulitis, but has been referred for scans of her shoulders to confirm no significant pathology. I will review her shortly with these results. Once again thank you for your referral.”[19]
[19] Application pp76-77
I have quoted Dr Lieu’s report in full as I am of the view that it correctly sets out the diagnosis of the applicant’s condition for the reasons set out below.
Dr Lieu arranged MRI scans of the applicant’s shoulders as noted in his report set out at paragraph 64 above.
By a further report to Dr Wong dated 5 November 2021 Dr Lieu confirmed as follows:
“The MRI scans of her shoulders confirm no significant tendon pathology as expected.
There was small partial tears on both supraspinatus which are not significant. The bulk of her symptoms continue to come from her cervical spine.”[20]
[20] Application p 85.
Dr Lieu also noted that the applicant was still to see her neck specialist.
In a report to the insurer of the respondent dated 24 November 2021 Dr Lieu advised that in his view the symptoms of her bilateral shoulder pains were predominantly a referred pain secondary to significant cervical spine stenosis. Dr Lieu also advised that the current diagnosis was one of C5/6 degenerative cervical disc disease.[21]
[21] Application p 90.
The applicant was seen by Dr Randolph Gray who specialises in spinal surgery on 25 November 2021.
In a report dated 25 November 2021 Dr Gray expressed the view that the applicant suffered from right C6 radiculopathy with corroborative evidence on the MRI scan of right C6 nerve root impingement and suggested that the applicant required a right C6 nerve root injection as a therapeutic measure.[22]
[22] Application p 92.
Dr Gray also suggested that the applicant may have some ongoing right shoulder irritation that would be dealt with by Dr Lieu.
After coming under the care of Drs Lieu and Gray in November 2021 the applicant only saw her general practitioner on seven occasions between 19 November 2021 and 17 May 2022.[23]
[23] Application pp 123-125.
In an equivalent period between 18 November 2020 to 19 May 2021[24] when the diagnosis by Dr Woo of a right rotator cuff strain seems to have been the basis of the treatment regime the applicant saw her general practitioner Dr Wong 30 times with reports of increasing pain and a spread of symptoms from the right arm into the left arm and extending down both limbs.
[24] Application pp 129-136.
Dr Raymond Wallace provided an independent medical examination and subsequent report dated 7 February 2022 for the respondent.
In his report Dr Wallace expressed the view that the applicant was suffering from:
“Severe degenerative cervical spondylosis at the C5/6 level with bilateral severe foraminal narrowing and irritative bilateral C6 radiculopathies detailed on MRI investigation carried out in November 2020 which was the cause of her cervical and bilateral shoulder symptoms.”[25]
[25] Application p 102.
A/Prof Nigel Hope’s qualified medical report for the applicant’s solicitors dated 22 August 2022 stated that the applicant was suffering from cervical C5/6 discopathy, right shoulder rotator cuff tear and left shoulder rotator cuff tear.[26]
[26] Application p 146.
A/Prof Hope’s report seems to have been prepared without the benefit of the reports and records of the treating general practitioner and surgeons and appears to be based on an incorrect history in a number of significant areas.
Under the heading “Management” A/Prof Hope recorded that Dr Lieu prescribed a shoulder injection.[27] That history is clearly wrong with Dr Lieu specifically noting that treatment from a spinal surgeon was required and that there was no significant pathology in the applicant’s shoulders and he did not prescribe a shoulder injection.
[27] Application p 144.
A/Prof Hope stated that there was a clear history of bilateral shoulder problems of some four years duration.[28] This is also clearly incorrect with the onset of left shoulder pain first noted on 18 November 2020 and worsening after the applicant stopped work. There is no history in the general practitioner’s notes of any left shoulder problems between 23 June 2011 and the attendance on 18 November 2020. Indeed there is no mention of right shoulder problems between 23 June 2011 and 30 October 2020.[29]
[28] Application p 147.
[29] Application pp 137-140.
It is also to be noted that A/Prof Hope’s findings on examination show a much greater restriction of movement in the shoulders than recorded by Dr Lieu and Dr Wallace at the times of their examination of the applicant.[30] No explanation is given by A/Prof Hope for this difference if indeed he was aware of it.
[30] Application p 145 and p 76 and p 100.
Given the lack of a correct history and the anomalies on examination I am unable to accept the diagnosis of A/Prof Hope of bilateral rotator cuff tears as a cause of the applicant’s complaints.
In my opinion on the balance of probabilities is that in terms of diagnosis of the applicant’s condition the correct position is that advanced by Dr Lieu and which in terms of diagnosis is also supported by the opinions of Dr Wallace and Dr Gray is that the applicant suffers from degenerative cervical spondylosis at the C5/6 level with significant cervical spine stenosis and further I find on the balance of probabilites that any rotator cuff degeneration is not significant in terms of creating any incapacity for work.
Dr Lieu has specifically noted that “the bulk of her symptoms are almost wholly due to her cervical spine pathology”[31] and that in his view the “diagnosis is clear”.[32]
[31] Application p 91.
[32] Application p 90.
In my opinion the history of the applicant’s treatment supports the conclusion as set out in paragraph 83.
After first seeing the applicant Dr Wong correctly referred her to a specialist for an opinion and that specialist, Dr Woo, diagnosed a right rotator cuff condition.
Dr Wong acting on the diagnosis of a specialist treated the applicant for a rotator cuff problem with physiotherapy and exercises but as I have noted there was actually a progression of symptoms while that regime of treatment was followed with pain extending into the left shoulder and then down the arms. Exercises performed to strengthen and improve shoulder function resulted in worsening pain.
Dr Wong eventually arranged for a second orthopaedic referral to Dr Lieu and after Dr Lieu provided his diagnosis of degenerative cervical spondylosis and the treatment regime changed there is a massive drop in attendances for treatment of the applicant by her general practitioner and there appears to have been an improvement in the applicant’s condition.
It may well be the case that if Dr Woo had the opportunity for a further consultation that he may have also changed his diagnosis in the light of the history of the applicant’s further development of symptoms but that is entirely speculative.
As noted Ms Compton made clear that the injury that is alleged is that the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease in the course of her employment. I have found on the balance of probabilities that the applicant suffers from a condition of degenerative cervical spondylosis that accounts for her complaints of pain and disability.
To succeed in her case the applicant must establish that her condition of degenerative cervical spondylosis was aggravated, accelerated, exacerbated or deteriorated in the course of her employment where her employment was the main contributing factor to any such aggravation, acceleration, exacerbation or deterioration.
Ms Compton submitted that the applicant worked for around 10 years doing repetitive lifting, bending and carrying activities where those activities were done regularly and constantly during her employment and where she was required to lift weights of up to seven kilograms. On a common sense test of causation those types of activities are readily understandable as being likely to aggravate the degenerative cervical spondylosis condition and relied upon the decision in Kooragang Cement Pty Ltd v Bates.[33]
[33] (1994) 35 NSWLR 452.
Ms Compton also directed me to the opinion of A/Prof Hope where he stated that “Employment is a substantial contributing factor to the injury”.[34]
[34] Application p 146.
As Mr Parker correctly in my view submitted the correct test of causation under s 4(b)(ii) of the 1987 Act was that set out by D Snell DP in AV v AW[35] and that the words “main contributing factor” was a more stringent test of causation. Further there could only be one main contributing factor to an injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease and that it is necessary to consider both work and non-work related factors in deciding whether the work was the main contributing factor.
[35] [2020] NSWCCPD 9.
In AV v AW Deputy President Snell at [70] described the test of “main contributing factor” in s 4(b)(ii) as follows;
“The test of ‘main contributing factor’, like that of ‘substantial contributing factor’, involves a broad evaluative consideration of potential competing causative factors. It should be decided on the evidence overall and is not purely a medical question.”
I also note the comments of Deputy President Roche in State Transit Authority of New South Wales v El Achi[36] which were also endorsed and applied by Deputy President Snell in AV v AW that in applying the test under s 4(b)(ii):
“That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369;78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
[36] [2015] NSWCCPD 71.
In applying the approach enunciated by Deputy President Snell in AV v AW I note that there are some difficulties created by the state of the evidence in this case.
The applicant’s statement is very short and is less than two pages in total length (excluding headings) of double spaced typing.
In her statement the applicant’s evidence in relation to injury and her work duties is as follows;
“8.     I worked there on a full time basis, and I worked Monday to Friday from 9.00am to 5.00pm.
9.      My job involved packing.
10.    I would pack pharmacy products such as milk powders and vitamins into boxes to be sent to China.
11.    Thes boxes weighed up to about 7kg.
12.    I would also restock the shelves of the pharmacy with products.
13.    There was a lot of requirements for repetitive lifting and exertion of my hands, shoulders and upper body.
14.    I would have to lift the boxes from the floor on to the bench and pack the boxes and then lift them off the bench.
15.    I gradually started to develop problems at my shoulders and neck.
16.    The pain in my neck and both shoulders got progressively worse over time.
17.    Eventually by November 2020 I couldn’t continue on working because of the pain.”[37]
[37] Application pp 1-2.
The applicant’s statement does not set out details of the number of boxes lifted, what the range in weights of the boxes were, how many boxes weighed 7kg compared with those that weighed less than 7kg, how many products had to be located and placed in each box and whether any rest periods occurred during the day and so on.
The applicant’s statement in relation to the circumstances of injury also appears to contain an incorrect history of the onset of symptoms in that at point 15 she stated that problems developed in her shoulders and neck and at point 16 stated that the pain in the neck and both shoulders got worse over time which is not consistent with the records of Dr Wong on 30 October 2020 recording longstanding pain in the right arm from shoulder to elbow and his subsequent record of pain “now also extending to involve the left shoulder” recorded on 18 November 2020 almost three weeks after the first report of pain in the right shoulder.[38]
[38] Application pp 136-137.
The applicant’s history at the time of her first attendance on Dr Woo on 5 November 2020 is also inconsistent with her history of injury as set out in the statement in that there appears to have been no complaint made to Dr Woo of left shoulder pain with the applicant giving a history of developing right shoulder pain after working for 2 years.[39]
[39] Application p 6.
Despite the concerns I have in relation to aspects of the applicant’s statement I note that no challenge to the applicant’s credit was made by the respondent and no evidence has been served by the respondent challenging the applicant’s evidence that she was required to do full time work that involved lifting and bending activities on a repetitive basis and did so for ten years while working for the respondent.
I also accept that the applicant noticed the onset of pain in her right shoulder area while performing her work duties.
As I noted at paragraph 45 above the history the applicant gave Dr Wong at the time of her first attendance on 30 October 2020 was of longstanding pain in the shoulder which was worse with physical exertion and work. I consider that history to be accurate and consistent with a degenerative condition of cervical spondylosis being aggravated both at work and in non-work activities involving physical exertion.
The medical evidence in the cause also poses some difficulties in deciding the issue of causation.
Dr Wong the treating general practitioner provided a report dated 6 December 2020 where he provided a diagnosis of bilateral rotator cuff tendinosis and sub acromial bursitis which I have decided was not the correct diagnosis of the incapacitating condition but was a diagnosis probably based on the specialist diagnosis of Dr Woo. Dr Wong expressed the view that the diagnosed condition was the result of repetitive strain injury from lifting loads up to 7kg that she frequently performed at work but does not express that opinion in terms of the “main contributing factor” and indeed Dr Wong appears to suggest that the applicant had developed rotator cuff tendonitis and sub acromial bursitis as a consequence of her work activities which is not a view of causation supported by any other doctor in the case.[40]
[40] Application p 17.
Unfortunately Dr Wong has not provided a report indicating whether he is of the view that the applicant’s condition of degenerative cervical spondylosis was aggravated by her work duties.
Dr Randolph Gray’s report of 25 November 2021[41] recorded a history that the applicant works as a pharmacy assistant and had been packing for the last 10 years and further records “She feels she has sustained a repetitive injury to her right shoulder and neck”. Unfortunately he does not express any view of his own in relation to the diagnosed condition of C5-6 stenosis and its relationship to the applicant’s employment. I intend no criticism of Dr Gray’s report as it was simply one addressed to the general practitioner in relation to diagnosis and treatment and was not intended to address the issue of causation of the condition.
[41] Application pp 92-93.
Dr Clive Sun similarly provided a report to Dr Wong for the purpose of the applicant’s treatment but it is also silent on the causation issue.[42]
[42] Application p 73.
In terms of the qualified medical evidence Dr Raymond Wallace’s report of 7 February 2022[43] confirmed a diagnosis of severe degenerative cervical spondylosis but he expressed the view that the condition was age-related degeneration unrelated to the applicant’s employment.
[43] Application pp 97-104.
In expressing his opinion on causation Dr Wallace referred to the American Medical Association Guides to Evaluation of Disease, Injury and Causation at page 187 and noted
“…where the authors conclude,’ There is insufficient evidence for neck posture prolonged work in a sedentary position or repetitive and precision work as risk factors for neck pain (Table 8.2)”[44]
[44] Application p 101.
Mr Parker suggested that this was a powerful view that had not been considered or contested in the applicant’s case.
As I raised with Mr Parker I found that the citation from the American Medical Association Guides rather less compelling as the quotation repeated at paragraph 112 above did not seem to deal with the issue as to whether repetitive bending and lifting activities would cause or would not cause an aggravation of a condition such as severe degenerative spondylosis in the cervical spine. The quotation used by Dr Wallace seemed to refer to a work situation where the neck posture was in a fixed flexed position for extended periods of time.
Dr Wallace also stated that
“Further, I note that Ms Hwang ceased work in January 2021, some 12 months ago and continues to complain of ongoing symptoms in her right shoulder.”[45]
[45] Application p 101.
Dr Wallace appeared to be saying that the fact that symptoms in the right shoulder had continued indicated that there had been no change in the applicant’s level of symptoms over the period and that accordingly the lack of change in symptoms indicated that the condition was unrelated to work.
In my view there are two problems with Dr Wallace’s comment.
The first problem with the comment is that it does not deal with the logical possibility that work activities could have aggravated the applicant’s degenerative cervical spondylosis on a permanent basis and that the condition of the applicant at the time of the examination was consistent with a permanent level of aggravation.
The second problem is that objectively the applicant’s condition had improved once the correct diagnosis of her condition had been made by Dr Lieu and the treatment regime had changed. As I noted at paragraphs 73 and 74 and there had been a very significant fall in the need for medical attention.

Arguably if Dr Wallace had been aware of the objective improvement in the level of the applicant’s symptoms he may have been prepared to accept a nexus between the applicant’s work activities and the aggravation of her degenerative cervical spondylosis.
A/Prof Hope certainly diagnosed the applicant as (inter alia) suffering from cervical C5/6 discopathy and in relation to causation stated “Employment is a substantial contributing factor to the injury” however it is unclear to me as to whether he is saying that the injury is caused by the employment or the injury was a condition that was aggravated by the applicant’s employment.
Further A/Prof Hope does not provide any detailed reasoning as to why the employment was a substantial contributing factor to the injury but none the less does record that the applicant’s duties included repetitive lifting and packing with the lifting taking place repeatedly from the floor to a table.
The opinion of A/Prof Hope also has a certain further level of ambiguity in that he diagnoses two separate conditions but refers to one injury when expressing an opinion about causation.
It is also the case that A/Prof Hope does not apply the correct test of causation in relation to the applicant’s claimed injury of an aggravation of a disease under s 4(b)(ii) of the 1987 Act in that he finds the applicant’s employment to be a substantial contributing factor to the injury rather than the main contributing factor.
As was noted by Beazley JA in Hancock v East Coast Timber Products Pty Ltd:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way with the usual requirements for expert evidence. As the authorities make plain even in evidence based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon J in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
In the case of a non-evidence based jurisdiction such as here, the question of acceptability of expert evidence will not be one of admissibility but of weight.”[46]
[46] [2011] NSWCA 11[82]-[83].
Given the ambiguities of A/Prof Hope’s opinion and the paucity of reasoning disclosed I have given his opinion on the causation issue less weight than I would have if he had a complete history, expressed his views with the reasoning disclosed and stated an opinion without ambiguity.
Dr Lieu the treating orthopaedic surgeon was asked a series of questions by the respondent’s insurer and provided a response dated 24 November 2021.
Unfortunately the exact questions he was asked to answer were not repeated and do not form part of the evidence in the case.
Nonetheless Dr Lieu stated in the responses that:
“the cervical spine pathology is predominantly degenerative and has progressed over the past 10 years or so”
and further stated that:
“Her cervical spine pathology is a degenerative condition. It may have been aggravated by her years of work.”
And that:
“Work may be a substantial contributing factor, especially if there was a lot of lifting and bending associated with her years of work.”[47]
[47] Application pp 90-91.
Dr Lieu also stated in his responses that:
“Causation can never be completely determined.”
And that:
“As previously stated, this is a predominantly degenerative condition and the exact contribution of her employment cannot be clearly stated.”[48]
[48] Application p 91.
As noted the questions Dr Lieu was answering are not in evidence and the lack of the questions makes understanding the complete answers difficult.
It does appear to be clear however that Dr Lieu is saying that the condition of degenerative cervical spondylosis is constitutional and not caused by the applicant’s work but that if the applicant carried out lifting and bending activities those activities could contribute to the condition although the exact extent of any such contribution to the final extent of the condition is hard to assess.
In my view Dr Lieu supports the suggestion that if the applicant did carry out lifting and bending activities in her employment those activities could aggravate, accelerate, exacerbate or cause deterioration of the degenerative cervical spondylosis from which the applicant suffers without having caused that condition and I accept his opinion.
As noted at paragraph 103 there is no challenge to the applicant’s evidence that she carried out lifting and bending activities working eight hours a day, five days a week for over 10 years while working for the respondent.
It is also the case that the applicant appears to have had a severe onset of symptoms in the right shoulder and upper arm on 30 October 2020 while at work carrying out her work duties and attended Dr Wong at 3.34pm on that day complaining of symptoms.[49]
[49] Application p 137.
The applicant also appears to have first developed significant symptoms in her left shoulder while at work on 18 November 2020 and attended Dr Wong at approximately 1.00pm on that day.
Coincidence does not of course establish causation however the development of significant symptoms while carrying out bending and lifting activities at work is consistent with Dr Lieu’s opinion that work could aggravate the applicant’s degenerative cervical condition.
Apart from the fleeting reference in Dr Wong’s notes to the applicant’s symptoms being worsened by exertion[50] there is no other evidence of activities that could have contributed to the onset of significant symptoms on 30 October 2020 or on 18 November 2020.
[50] Application p 137.
As Windeyer J held in Federal Broom Co Pty Ltd v Semlitch (Federal Broom) there is a relevant aggravation, acceleration, exacerbation or deterioration if “the disease has been made worse in the sense of more grave, more grievous or more serious in its effect upon the patient”.[51]
[51] [1964] 110 CLR 626.
Windeyer J also held in the same case that he found it “impossible to conceive of the malady as distinct from its manifestations.”
Burke CCJ applying Federal Broom in Cant v The Catholic School’s Office held that
“The thrust of these comments is that irrespective of whether the pathology has been accelerated, there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the worker.”[52]
[52] [2000] 20 NSWCCR 88.
The significant increase in symptoms the applicant suffered on 30 October 2020 and 18 November 2020 in my view fulfill are clear instances where the symptoms of the degenerative cervical spondylosis were made more grave, more serious and more grievous in their effect on the applicant.
On the balance of probabilities I find that the applicant suffered an aggravation, acceleration, exacerbation or deterioration of her condition of degenerative cervical spondylosis in the course of her employment to which her employment was the main contributing factor to the aggravation acceleration exacerbation or deterioration with the aggravation having occurred throughout the period of employment but with the aggravating work duties having caused a severe onset of symptoms on 30 October 2020 and 18 November 2020 which is a view consistent with the opinions of Dr Liew and A/Prof Hope.
The fact that the applicant’s condition worsened during periods of physiotherapy for treatment of her injury where she was required to lift weights and use resistance bands is also consistent with lifting activities acting as an aggravation of the degenerative cervical spondylosis from which the applicant suffers.
There is no evidence before me that suggests that the applicant has completely recovered from the aggravating effects of her employment duties that culminated in the significant worsening of symptoms in October and November 2020 although as noted at paragraphs 73 and 74 there is objective evidence of some improvement shown by the very significant reduction in attendances for treatment with her general practitioner. Therefore I conclude on the balance of probabilities that the aggravation, acceleration, exacerbation or deterioration caused by the applicant’s work duties continues.
Having concluded that the applicant’s employment was the main contributing factor to her injury under s 4(b)(ii) of the 1987 Act it follows that the applicant’s employment was a substantial factor to the injury as the test under s 4(b)(ii) is more stringent.[53]
[53] Per DP Snell in AV -v- AW [2020] NSWWCPD 9 at [66].
Although it is not necessary for the purposes of this decision I note that if I had found that the applicant suffered incapacity as a result of a degenerative condition of her left and/or right rotator cuff (which is not the case) I could not find on the balance of probabilities that the rotator cuff condition had been aggravated, accelerated, exacerbated or deteriorated as a result of her work duties where her work duties or employment were the main contributing factor to such an aggravation, acceleration, exacerbation or deterioration given the nature of the evidence.

Incapacity

Having accepted that the applicant suffered an aggravation, acceleration, exacerbation or deterioration of her degenerative cervical spondylosis as a consequence of her work duties of bending and lifting of goods for packing and having found that the main contributing factor to that injury were the work duties the next issue for determination is to determine the extent of the applicant’s incapacity for work.
The evidence in terms of the applicant’s incapacity for work is very varied and counsel recognized this in their submissions.
Ms Compton argued that given the applicant’s limited English skills, the fact that she had been unable to cope with a 10 hours per hour week trial, the limited capacity certified by the general practitioner ( of three per day two days per week with lifting limits of 1kg on the right arm and 2kg on the left arm)[54] and given the opinion of A/Prof Hope that the applicant had no capacity for work that I should find her totally incapacitated for employment.
[54] Application pp 164-165 for the most recent certification.
In the alternative Ms Compton submitted that I should find that the applicant was capable of no more than 20 hours work per week at the minimum wage rate which both parties agreed I could accept as being $21 per hour however she emphasised that her primary submission was that I should find the applicant was unfit for any form of employment given the factors noted at paragraph 150.
Mr Parker submitted that to suggest that the applicant was totally unfit was not consistent with the certifications by the general practitioner and looking at the findings and complaints on examination the problems disclosed were not totally incapacitating for any employment.
Mr Parker particularly pointed out the complaints recorded by Dr Wallace at the time of his examination in February 2022 where the applicant was noted as stating that there was no current pain at her neck or left shoulder with intermittent pain in the right shoulder.[55] Mr Parker argued that the level of those complaints was not consistent with the applicant’s case of having no current work capacity.
[55] Application p 99.
Mr Parker also submitted that you would expect an improvement in the applicant’s condition over time as her condition became more manageable.
Mr Parker submitted that an appropriate assessment of the applicant's current work capacity was twenty hours per week as was submitted by the applicant’s counsel as her alternative position.
In terms of the evidence the applicant’s statement sets out that she had not been able to obtain work since her claim was declined on 21 March 2022 and that she still got significant in her left shoulder, right shoulder and neck. She also stated that she was unsure what work she could do and that she lacked skills and had limited English. She stated that she had difficulty lifting her arms up high and would have problems doing work above shoulder height.[56]
[56] Application pp 2-3.
In her statement the applicant did not claim to be totally incapacitated for any form of employment.
A/Prof Hope expressed the view that the applicant had no current work capacity but again there is no detailed reasoning disclosed when expressing that opinion.[57]
[57] Application pp 146-147.
Dr Wallace expressed a view at the other end of the possible spectrum stating that the applicant was currently fit to resume her pre-injury duties as a full-time pharmacy assistant without restriction.[58]
[58] Application p 103.
I find it difficult to understand Dr Wallace’s view as to work capacity having regard to his diagnosis that the applicant is:
“suffering from severe degenerative cervical spondylosis at the C5/6 level with bilateral Severe foraminal narrowing and irritative bilateralC6 radiculopathies.”[59]
[59] Application p 102.
I can understand that Dr Wallace may be of the opinion that the diagnosed condition is not related to work but I do not see how such a condition could be seen by him as not having any impact on the applicant’s ability to perform her pre-injury duties that involved bending and lifting activities.
The concerns I have noted in relation to the opinions of Dr Wallace and A/Prof Hope in relation to the applicant’s work capacity mean that I am unable to accept either view as being a correct assessment of her capacity.
The certificates of capacity provided by the general practitioner basically certify the applicant has having no current work capacity from January 2021 through to March 2022 (other than a couple of certifications for short periods of partial work capacity when return to work was attempted). Beyond March 2022 the certification of the applicant’s current work capacity by the general practitioner has been for light work three hours a day two days per week with lifting limitations.
One of the concerns I have with those certifications by the general practitioner is that they continue to describe the condition that the applicant is suffering from as being bilateral rotator cuff tendinopathy with sub deltoid bursitis which, for the reasons I have set out, is not in my view the cause of any significant incapacity for employment and is the diagnosis that was not accepted by Dr Lieu.
Further the same certification appears to be regularly given without change of the wording time after time. With the greatest respect to the doctor I am not convinced that due attention has been given to assessment of the applicant’s current work capacity when preparing the certificates on each occasion.
For the reasons set out in paragraphs 164 and 165 I do not think that the general practitioner’s certificates of capacity provide a good assessment of the applicant’s current work capacity from time to time as covered by the certificates.
In terms of other evidence of work capacity I have already commented on the marked improvement that appears to have occurred in the applicant’s condition following her consultation with Dr Lieu in late 2021 and the subsequent very significant decline in her attendances for treatment.
The applicant’s statement sets out that she gets pain in her shoulders and neck and cannot lift her arms very high however in terms of medication she only states that she is taking Panadol for those symptoms.[60]
[60] Application pp 2-3.
I also note from the applicant’s statement that prior to working with the respondent she had filled a customer service role at a pharmacy in Cabramatta.[61] There appears to be no reason why the applicant would not be fit for such a role on a part time basis working in a community where the clientele speak her language and where she may on occasion resort to taking Panadol for pain. In my view such a role would be a real job that the applicant would be currently fit and qualified for and could be expected to secure and retain given her past work experience and is one that satisfies the tests laid out in the decision of Deputy President Roche in Wollongong Nursing Home Pty Ltd vDewar.[62]
[61] Application p 1.
[62] [2014] NSWWCCPD 55.
Doing the best that I can on the balance of probabilities I am prepared to accept the respondent’s suggestion that a true measure of the applicant’s work capacity is that she is fit to work part time in a light job such as a customer service role in a pharmacy and has been fit to do so since payments of weekly compensation ceased on 22 March 2022.
I note the parties’ agreement that the applicant would be able to earn $21 per hour in suitable employment.
The applicant has not been employed between 23 March 2022 and 21 February 2023 which the applicant has pleaded as the period for which compensation is claimed under s 37 of the 1987 Act on the basis that the second entitlement period comes to an end on 21 February 2023.
From the limited material on the Commission's file I cannot work out whether the period referred to in paragraph 172 has been properly calculated but will assume for the purposes of this judgment that the period is correct while giving each side liberty to apply to correct the period if the assumption is alleged to be incorrect.
The applicant’s pre-injury average weekly earnings (PIAWE) were $925.42 and accordingly the applicant will be entitled to an award of weekly compensation under s 37(3) of the 1987 Act for the difference between 80% of her PIAWE of $925.42 and her assessed work capacity of $420 per week for the pleaded period.

Medical and related expenses

I have found that the applicant has suffered an aggravation, acceleration, exacerbation or deterioraton of her degenerative cervical spondylosis condition arising out of or in the course of her employment to which her employment was the main contributing factor accordingly she is entitled to a general award for her medical and related expenses for the treatment of that condition.

SUMMARY

I find that the applicant suffered an injury in the nature of an aggravation, acceleration, exacerbation or deterioration of her degenerative cervical spondylosis arising out of or in the course of her employment and that her employment was the main contributing factor to such aggravation, acceleration, exacerbation or deterioration as required by s 4(b)(ii) of the 1987 Act.
The deemed date of injury is 18 November 2020 being the date of incapacity and the date of the claim for weekly compensation.
I find that the applicant’s employment was not the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of any rotator cuff tear, tendinopathy or subdeltoid bursitis condition affecting either or both of the applicant’s shoulders.
The applicant has been paid weekly compensation up to 22 March 2022 and claims weekly compensation from 23 March 2022 to 21 February 2023 pursuant to s 37 of the 1987 Act.
I find that as a result of her injury the applicant has been partially incapacitated for her pre-injury work from 22 March 2022 to date.
I find that the applicant’s PIAWE was a figure of $925.42 per week.
I find that the applicant has a current work capacity of 20 hours per week carrying out light work not requiring heavy lifting or repeated bending and lifting activities.
I note the parties agreement and find that the proper measure of the likely earnings of the applicant in such suitable employment is a rate of $21 per hour.
As the applicant is not in employment but has current work capacity and is claiming weekly compensation during the second entitlement period her award of weekly compensation is calculated under s 37(3) of the 1987 Act.
I find that the applicant is entitled to an award of weekly compensation from 23 March 2022 to 21 February 2023.
I find that the applicant is entitled to have her reasonably necessary medical and related treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent.

There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act from 23 March 2022 to 21 February 2023 at the rate of $320.34 per week.
There will be an award that the respondent pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 243

26 May 2023