Ignacio v Austral Wire Products Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ignacio v Austral Wire Products Pty Ltd [2021] NSWPIC 152
APPLICANT:	Reynaldo Ignacio
RESPONDENT:	Austral Wire Products Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	27 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Consequential condition; Moon v Conmah considered and applied; Held- referral of cervical spine to Medical Assessor where 0% WPI assessed for the cervical spine assessed by worker’s IME.
DETERMINATIONS MADE:	1. The matter is remitted to the President for referral to a Medical Assessor (MA) for assessment of the degree of permanent impairment arising from the following: (a) Date of injury: in about June 2014; body systems referred: left upper extremity and cervical spine and consequential right upper extremity (right shoulder condition consequential to left shoulder injury), and (b) Date of injury: nature and conditions of employment from August 2013 to December 2015, inclusive of incidents in about June 2014 and on 11 February 2015; body systems referred: left upper extremity, lumbar spine, cervical spine and consequential right upper extremity (right shoulder condition consequential to the left shoulder injury). 2. Documents to be referred to the MA are to include the Application to Resolve a Dispute and attached documents; Reply and attached documents; this Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

This is an application by Reynaldo Ignacio (the applicant) for permanent impairment compensation as a result of injury said to have been sustained in June 2014 to the left shoulder, wrist, hand and neck; on 11 February 2015 to the left shoulder, neck and lower back; as a result of the nature and conditions of his employment and the above-mentioned frank injuries the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a degenerative process in his neck and lower back; and as a result of overusing his right shoulder in order to compensate for his injured left shoulder, he sustained a consequential injury to the right shoulder.
The section 78 notice that was attached to the Application to Resolve a Dispute (ARD) advised that liability for the left shoulder injury had been accepted, but disputed consequential or frank injuries to the right shoulder, neck or back.

PROCEDURE BEFORE THE COMMISSION

At the conciliation and arbitration conference on 16 April 2021, the applicant was represented by Mr R Stanton of counsel, instructed by Mr Bechara, solicitor, and the respondent by
Mr Barnes of counsel, instructed by Mr Rainier, solicitor.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to cross-examine the applicant or adduce oral evidence.

FINDINGS AND REASONS

The applicant’s case

The applicant provided a statement dated 27 January 2021. He was born in the Philippines on 24 February 1973 and he migrated to Australia in 2002.
He commenced employment with Austral Wire Products Pty Ltd (the respondent) on 27 August 2013 as a process worker. He last worked with the respondent on 4 December 2015. He attempted short periods of suitable work as a handyman for about eight days in September 2016 and for two or three days as a forklift driver in 2017 but was unable to continue the job as a handyman due to ongoing pain in his shoulders and lower back and was unable to continue his job as a forklift driver due to pain in his neck.
He noted the clinical record of his GP at The Valley Plaza Medical Centre which included complaints of low back pain and knee pain on a number of occasions from 2007 to 2012. There was also a record of complaints of right shoulder pain and lower back pain in July 2012 indicating right shoulder and elbow pain and lower back pain for the last two months as a result of lifting and packing, although in consultations in August and September 2012 it was noted that the lower back and right shoulder were improving. A consultation in October 2012 indicated both shoulder pain and stiffness. There is no reference to lower back pain after 14 September 2012 and no reference to shoulder pain after 26 October 2012.
The applicant said that at the time of his workplace injury he was not suffering from any problem or pain with his shoulders, back and neck.
He stated that his duties involved setting and operating wire fence machines, with loading and unloading of rolls of fencing wire, which would occasionally become stuck and require greater physical exertion. There were similar activities with rolls of netting wire. He was also required to handle wire fencing bundles weighing about 70 kg to 80 kg.
The applicant said that the work overall was quite difficult and demanding and long and hard and also quite repetitive. The applicant attached to his statement photographs of the wire rolls and the work area.
This history of engaging in arduous activities at work upon commencement of employment with the respondent gives weight to the applicant’s statement that he felt that both his shoulders, his neck and his lower back were not painful and were not giving him a problem. The applicant was able to perform these arduous duties with the respondent until the first accident with the respondent in about 2014. He said that he was returning to his machine when he stepped on some tangled wires and fell down injuring his neck and whilst falling he used his left hand to protect his face from a stepladder which was in the vicinity and so he also sustained injury to his left hand and shoulder.
The clinical notes of the applicant’s GP, Dr Sorani, at The Valley Medical Centre on 4 June 2014 recorded history of a fall at work on 27 May 2014 after he had been caught by a wire and landed forward. It was recorded that he complained of left hand pain and was still working but this morning had more pain, also having pain in the lower neck. Dr Sorani noted pain from the neck spreading to the left arm up to the elbow area with no numbness or tingling sensations and mild swelling in the left hand and localised tenderness in the lower paracervical region, movements of the neck were mildly tender in all directions and no focal neurological findings in the upper limbs.
In my view, the clinical notes of the GP add weight to the applicant’s statement as to the circumstances of the incident and the injury to his neck and left hand and arm and shoulder area.
The clinical notes of the GP, Dr Victorino, at The Valley Medical Centre on 28 November 2014 noted that the applicant had been having low back pain for four days with Voltaren relieving the pain. It was noted that the applicant does lifting and pushing at work. The clinical notes of Dr Victorino on 11 February 2015 noted that the applicant was still with recurrent lower back pain and also with neck and left shoulder pain.
The applicant also stated that in early February 2015 another accident occurred when he was changing the wire coil and he was trying to take the metal cone from the stump. The applicant did not state the precise mechanism of injury but said that he had an injury to the left shoulder.
The applicant said that as a result of the injury to his left shoulder in early February 2015 he became more reliant on the use of his right arm to protect his left shoulder and in so doing developed symptoms on his right side which also became progressively worse over time.
The applicant stated that due to his work duties he also felt severe pain in his lower back and neck, although this is not as painful as his left shoulder was at the time of his workplace injury. He felt that as time went on following the left shoulder injury pain in his neck and lower back increased significantly.
The clinical notes of the GP, Dr Ong, at The Valley Medical Centre on 6 March 2015 noted that the applicant said he has had “pain left shoulder for few weeks, worse last few days right-handed works as machine operator, had to do moderate labour work, pushing and lifting steel”. Dr Ong referred the applicant to Dr J Herald.
The initial treating report of Dr Herald, orthopaedic surgeon, was dated 17 April 2015. He recorded a history that in about June last year he fell at work tripping on some cables and landing heavily onto a ladder and he hit his left shoulder on the ladder but predominantly had neck pain and left hand and wrist pain. Dr Herald also recorded that the pain in his wrist and hand seemed to improve slowly over time but as he returned to work pushing 200 kg worth of steel equipment in the steel factory he started to develop increasing left shoulder pain and the left shoulder pain has become more severe over the last six weeks in particular.
In my view the history recorded by Dr Herald of the increasing pain in the left shoulder in the preceding six weeks is in accordance with the clinical notes of Dr Ong.
In his report of 12 June 2015, Dr Herald noted continuing left shoulder pain. He recorded that the MRI scan showed a small SLAP lesion. Dr Herald discussed with the applicant the options of surgery including a SLAP repair or reducing his level of activity at work, which Dr Herald noted was quite heavy.
I note that at the time of the consultation with Dr Herald on 12 June 2015, the applicant was continuing with his work with the respondent, which indeed was noted by Dr Herald.
In his report of 30 October 2015, Dr Herald reported that given the applicant’s high level of activity, shoulder arthroscopy and SLAP repair was recommended and in the recovery period he should stay on light duties. Although concise, in my view it is reasonable to infer that Dr Herald was referring to a high level of work duties, as the previous report of 12 June 2015 gave the applicant the option of surgery or reducing his level of activity at work. In my view the reports of Dr Herald were concise and directed to the matter at hand, that is treatment of the left shoulder.
The operation report of Dr Herald of 22 January 2016 reported findings of a SLAP lesion affecting the superior labrum, rotator cuff tearing with full thickness component, and subacromial spur and subacromial bursitis. These findings by Dr Herald in my view were significant and of greater severity than the initial investigation of a SLAP lesion alone.
The serial reports of Dr Herald after the surgery suggest progression in recovery but by 9 May 2016 Dr Herald noted that the applicant had a stiff shoulder and he suggested hydrotherapy as well is physiotherapy to regain full strength and motion.
On 22 June 2016 Dr Herald noted that the applicant was progressing very slowly and he still had some ongoing pain. An MRI was arranged Dr Herald discussed a course of anti-inflammatory tablets or a cortisone injection, preferring the former at that stage. Treating reports of Dr Herald in January and February 2017 noted continued mildly positive impingement. There is no indication that this is not a reference to the left shoulder.
In his report of 10 April 2017, Dr Herald recorded that the applicant had pain in both shoulders now and over the last month he had pain in the right shoulder due to repetitive use of the right upper limb to accommodate for the left and has now also aggravated pain in his left shoulder. On examination, Dr Herald noted some neck stiffness and tenderness. Dr Herald noted back pain. It was the assessment of Dr Herald that the applicant had cervical pain, right shoulder referred pain, and left shoulder subacromial bursitis and impingement. (wording of this sentence)
The report of Dr Herald of 10 April 2017 in my view should be considered in the context of the surgery to the left shoulder with slow improvement and prolonged recovery of the left shoulder.
Dr Herald, in his reports of 1 May 2017 and 16 June 2017, noted impingement signs in both shoulders, cervical tenderness and MRI scans of the neck showing multilevel cervical disc prolapse with radicular nerve compression. He recommended review by a neurosurgeon for the possibility of pain in the upper limbs being related to his neck. He thought that the injury to his neck may have been worse than originally anticipated and he referred the applicant for an MRI scan of the back as well as the neck as he had pain in his lower back and suggested neurosurgical review of both. On review of the MRI scans, Dr Herald commented that they showed multilevel cervical disc disease and an L5/S1 anterior listhesis.
In his report of 14 July 2017, Dr Herald was of the opinion that the main problem now is the right shoulder and not the left as the left shoulder provides only intermittent symptoms and the right provides more constant pain. He referred the applicant for a subacromial injection of cortisone and local anaesthetic in the right shoulder and also referred him for physiotherapy.
Dr Herald in his report of 18 September 2017 noted continuing right shoulder pain and improving left shoulder. Dr Herald on examination noted a full range of movement of both shoulders but a markedly positive O’Briens test of the right shoulder and positive impingement signs. He recommended a further MRI and suggested that the applicant would most likely have arthroscopic biceps tenodesis and rotator cuff repair surgery on the right shoulder.
Dr Herald provided further treatment reports dated 28 March 2018 and 30 April 2018 in which he further reviewed the right shoulder and considered surgery. He noted stabilisation of the left shoulder condition.
In his medicolegal report to the applicant’s solicitors dated 22 November 2020, Dr Herald noted the history of injury and of the treatment he had provided. In particular, at point four of the report, Dr Herald considered the neck and the right shoulder to be consequential injuries to the left shoulder injury, subsequent surgery and protracted recovery given the development of frozen shoulder in his left shoulder that required a lengthy period of overcompensation with his neck and his right shoulder. He did not think that the back was necessarily able to be related to the injury to the left shoulder as he was told that this was a separate injury in 2014 at work and so perhaps the back injury was related to the 2014 injury and from the nature and conditions of this work.
In his report dated 20 June 2016 (probably 2017 given the 2017 referral by Dr Herald), Dr Darwish, neurosurgeon and spinal surgeon, provided a treating report to Dr Herald. He recorded history of work-related injury in February 2015 and he injured his neck, shoulders and back and he works as a machine operator and his work involves heavy lifting and pushing and pulling heavy objects. He recorded that the applicant sustained a left shoulder rotator cuff tear for which he had surgery in January 2016 and he continued to complain of neck pain and pain in both shoulders, more on the left side and lower back pain, occasionally radiating to the left leg. He noted MRI scan of the lumbosacral spine dated 24 May “2018” showed grade 1 L5/S1 spondylolisthesis and bilateral foraminal stenosis, more on the left side and no significant nerve root compression. He recorded MRI scan of the cervical spine dated 20 April 2017 showed right C3/C4 and C5/C6 foraminal stenosis but no obvious nerve root compression. He noted the MRI scan of the right shoulder dated 20 April 2017 reported supraspinatus tendinosis and partial tear and the MRI scan of the left shoulder reported that the supraspinatus tear is well repaired and no residual tear. He recommended a CT scan of the lumbar spine to exclude L5 pars defect and referred him for physiotherapy and with regard to the neck and shoulder pain he recommended to continue with conservative treatment.
Although Dr Darwish did not record a history of the fall at work in about June 2014, he did record a history of symptoms in the neck, back radiating to the left leg and both shoulders about eight months afterwards, to the extent that referral to a neurosurgeon was made.
Dr Darwish, in his medicolegal report of 21 December 2020 to the applicant’s solicitors, noted a history of a work-related injury in February 2015 lifting a heavy object, injuring his neck shoulders and back. Dr Darwish noted that the applicant works as a machine operator and his work involves heavy lifting and pushing and pulling heavy objects. Dr Darwish recorded that he had a left shoulder rotator cuff tear for which he had surgery in January 2016 and after the surgery he continued to complain of neck pain and pain in both shoulders, more on the left side, lower back pain occasionally radiating to the left leg.
Dr Darwish was of the opinion that the radiologically demonstrated changes in the applicant’s cervical and lumbosacral spine are degenerative in nature aggravated by his employment and employment is a major aggravating factor to his underlying degenerative condition. Dr Darwish did not believe that the aggravation had ceased.
Dr Dave, orthopaedic surgeon, in his treating report dated 3 April 2018, noted left shoulder injury in January 2016 and left shoulder surgery. Dr Dave recorded that “at the same setting his right shoulder was injured” and he understood that a request for surgery for the right shoulder had been made but denied by the insurer and hence the applicant came to see him. Dr Dave reviewed the MRI scans of the right shoulder which show subacromial bursitis and rotator cuff tendinitis. The applicant has tried subacromial injection of cortisone but these have not helped. He was of the view that the applicant is now reaching the stage where an arthroscopic decompression of the shoulder would be an appropriate intervention and he tentatively booked the applicant through the public hospital.
In the operation report of 22 March 2019 performed by Dr Dave, noted that the background was right shoulder impingement and the primary operation performed was arthroscopic right shoulder decompression. Findings were made of minor biceps tear at attachment to labrum, rotator cuff all intact and subacromial spur – decompressed. I accept the applicant’s submission that these are findings of anatomical abnormalities.
In his medicolegal report dated 17 June 2020, Dr Poplawski, orthopaedic surgeon, recorded that he conducted the consultation by way of video consultation. I note that this video consultation was conducted during the period of COVID restrictions and difficulties. Dr Poplawski also did not note the presence of an interpreter. Dr Poplawski recorded that the nature of his job is to wind fencing wire onto metal spools and when these are full lift them off the winding machine and replace them with empty spools onto which more wire is then wound and he also had to handle wire fencing bundles weighing 70 to 80 kg in the course of his work. Dr Poplawski recorded that in about June 2014 the applicant tripped on some cables at work and fell landing heavily onto a nearby ladder sustaining an injury to his left shoulder, wrist, hand and neck. He noted the pain in the wrist and hand settled over a period of time but he remained troubled with neck discomfort and more particularly pain in his left shoulder, increased by the physical activities he was required to do at work, particularly when handling bundles of fencing wire weighing 70 to 80 kg each. He noted that there was some improvement in symptoms but that these became aggravated on 11 February 2015 when the applicant was manhandling the bundles of wires fencing and at the same time he sustained injury to his lower back which has continued to trouble him with bending and lifting activities, twisting of the spine and carrying heavy equipment. He recorded that the applicant became more reliant on the use of his right arm to protect his left shoulder and developed symptoms on this side also, which progressively increased over a period of time.

In my view, the history recorded by Dr Poplawski is in general consistent with the applicant’s statement provided in these proceedings. Dr Poplawski was not assisted by the absence of an interpreter.
Dr Poplawski was of the opinion that as a result of his work activities the applicant developed cumulative injuries to both shoulders and his lower back and neck. He diagnosed adhesive capsulitis with impingement of both shoulders, cervical spondylosis and lumbar spondylosis with non-verifiable radiculopathy. Dr Poplawski was of the opinion that the applicant sustained a cumulative injury to his shoulders, neck and back as a result of the heavy physical work he was required to carry out over the years. Dr Poplawski was also of the opinion that there is evidence of pre-existing degenerative changes in the cervical and lumbar spines, but these were essentially asymptomatic prior to the injury he sustained as a result of work activities carried out with the respondent. As for the right shoulder, Dr Poplawski was of the opinion that the applicant developed a cumulative injury to his right shoulder as a result of overuse of the right upper extremity in an attempt to protect the more symptomatic left shoulder at that time. Dr Poplawski agreed with Dr Breit that the conditions in the applicant’s neck and back, the cervical and lumbar spondylosis, were present prior
to the cumulative injury but that these were asymptomatic until the injuries occurred. Dr Poplawski was of the opinion that the applicant’s employment was the main consuming factor to the aggravation of pre-existing but previously asymptomatic degenerative disease in the neck and lower back.
Dr Poplawski assessed permanent impairment. In respect of the cervical spine Dr Poplawski assessed DRE cervical category I with no significant clinical findings.
In his supplementary report dated 2 February 2021, Dr Poplawski recapitulated his opinion from the previous report. He additionally opined that he agreed with the opinion of Dr Herald that the applicant developed a consequential injury to his right shoulder in the course of his work activities as a result of overusing his right arm in order to compensate for the injured left shoulder. His opinion was that as a result of ongoing pain and limitation of movement in the left shoulder the applicant was more reliant on the use of his right arm and consequently developed overuse symptoms on the right side as well. Dr Poplawski also agreed with the opinion of Dr Darwish that the applicant developed aggravation of pre-existing degenerative disease in the lower back and neck. He noted the direct injury to the neck in about June 2014 when the applicant tripped on some cables at work and fell and landed heavily on a nearby ladder. Dr Poplawski opined that the injury to the neck at that time may have resulted in multilevel degenerative changes in the cervical spine as reported on the MRI of 20 April 2017 with subsequent aggravation by the cumulative injuries from his work activities. Dr Poplawski was of the opinion that as the fall and consequential injuries occurred in the course of work, employment is the main contributing factor to such aggravation. He disagreed with Dr Breit that the applicant did not suffer consequential injury to his right shoulder. He also disagreed with Dr Breit and confirmed his view in relation to injury to the lower back and cervical spine.
Dr Poplawski also responded to Dr Breit’s criticism of his findings in relation to the lower back and his examination of the shoulders. In relation to the examination of the applicant’s shoulders, Dr Poplawski said that he carefully described to the applicant how to carry out a self-directed impingement test and watched him on the video carrying this out in the prescribed manner and the applicant stated that this caused him pain in the front of the shoulder being tested and it was the conclusion of Dr Poplawski that the impingement test was positive.

The respondent’s case

Dr Breit, orthopaedic surgeon, provided a number of reports in this matter.
In his report dated 19 August 2015, Dr Breit noted the presence of an interpreter. Dr Breit had difficulty recording a history. He recorded a history that it appeared that there was some right shoulder pain without any specific injury which was not reported and the applicant saw a GP on 11 February 2015 and was prescribed some Voltaren. Dr Breit noted that at some point in the beginning of March (2015) the applicant was lifting up a cone and had sudden sharp pain in the left shoulder. He underwent physiotherapy for three sessions but stopped after an ultrasound when his GP apparently told him that physiotherapy would not work and an operation was necessary. On referral, Dr Harold sent him for an MRI and told him that he needed an operation. Dr Breit noted that at that time there was left shoulder pain with some overhead restriction and pain on abduction. He noted that the applicant said that he sometimes has a little neck discomfort but no radicular complaints.
Dr Breit noted the left shoulder x-ray had evidence of an anterior acromion spur. He also noted that an ultrasound reported a partial-thickness tear of the rotator cuff as well as some impingement but this was a highly observer dependent investigation. The left shoulder MRI of 11 May 2015 noted structural impingement and some anterior acromion will prominence and evidence of bursitis and some tendinosis and a minor partial-thickness cuff tear. Dr Breit did not agree with the radiologist report of a small SLAP lesion, as he thought it was very small and it may be a cleft and also he would not expect a SLAP lesion from the mechanism of injury and also that a prominent American shoulder surgeon has maintained, and Dr Breit agrees, that the claimed finding of a SLAP lesion on an MRI is of no relevance in the absence of a positive O’Brien’s test.
Dr Breit diagnosed left rotator cuff impingement which is consistent with the history. He was of the opinion that the applicant could work normal hours where there was no work above chest height and no forceful repetitive use of either arm and a 7 kg lifting limit, such incapacity being due to the work injury. He was of the opinion that given the acromial morphology the applicant is very likely to have recurrent problems and there is a significant probability he will run into the same problem in the right shoulder if he is doing overhead work. He was of the opinion that the applicant’s employment was the main contributing factor to the injury. He was also of the opinion that if after physiotherapy the injury had not settled after a couple of months then an acromioplasty would be reasonable and at the same time it would be expected that the whole shoulder would be inspected and any other issues dealt with at that time.
In his report dated 16 August 2017, Dr Breit noted the assistance of an interpreter. He referred to the previous history and recorded that there was some further information gleaned with changes to the history. The initial pain was in the left shoulder and the subsequent episode of sharp pain in March 2015 was also in the left shoulder. The right shoulder pain started in about December 2015 and that it related to twisting wire and pushing and pulling 80 kg of wire. Dr Breit noted surgery on the left shoulder in January 2016 and the applicant still has pain and continues to have physiotherapy twice a week which “beggars belief”. He noted that the applicant said that he started to have back pain pushing heavy items at work which the applicant did not think was “serious”. Dr Breit noted that the applicant said he told his GP of the back pain in 2015, but Dr Breit also observed that the first available investigation was from May 2017. Dr Breit also recorded “post-operative neck pain” but did not record the onset of injury in this regard.
Dr Breit noted that the applicant said that with the neck pain he tires easily and it hurts. There was complaint of bilateral anterior shoulder pain with an inability to do things overhead and restrictions in getting the hand behind the back but no difficulty doing his hair or dressing. There was complaint of numbness and tingling sometimes in the left hand which Dr Breit recorded as the applicant claiming being due to a left hand fracture while at work with the respondent. Dr Breit noted midline and left low back pain sometimes radiating to the right with restricted tolerance with sitting, standing and walking. The applicant complained of bilateral leg pain worse on the left than the right starting from the knee and radiating down the front of the leg and foot. Dr Breit also recorded sometimes there are pins and needles in the left thigh and lower leg in variable areas. On examination, Dr Breit noted no tenderness in the neck or thoracic spine and there was tenderness in the low back and also lower back restrictions. Dr Breit noted that in the left shoulder there was significant crepitus and some irritability but not in the right shoulder. Dr Breit reviewed the various investigations.
Dr Breit was of the opinion that he could see no indication of an injury or an aggravation to the lumbar spine that is work-related. He was of the opinion that it is common for people who have significant ongoing shoulder restriction to have some secondary neck pain and he considered that an aggravation. However Dr Breit changed his opinion regarding causation as from the further information provided, and the photograph that was also provided, there does not appear to be a component of his employment which would put him at risk of rotator cuff injury and he has previously noted the constitutionally based acromial morphology which leads to marked subacromial impingement with a high probability of rotator cuff problems. Dr Breit was of the opinion that the applicant’s shoulder problems were not due to the nature and conditions of employment but rather the end result of the constitutional morphological acromial changes. He was of the opinion that employment was not a substantial contributing factor with respect to the shoulders, the neck or the back. He was of the opinion that physiotherapy should be ceased and surgery was not indicated. He saw no reason why the applicant should not return to normal hours when there is no work above chest height and no forceful repetitive use of either arm.
In his report dated 19 August 2020, Dr Breit noted there was no interpreter and the applicant was accompanied by his wife.
He noted that he had been forwarded in excess of 700 pages of documents which he would not review.
Dr Breit repeated the previous history obtained in 2017 and noted that since that time there had been no further treatment but it would appear that he has been reviewed by “Dr Manohar who terms himself a pain specialist” on two or three occasions with a suggestion of neck injections which was declined by the applicant. He noted present complaints of midline neck pain said to be constant with variable intensity related to movement; pain at the front and back of both shoulders; pins and needles sometimes in the face or the back or in different areas of the arms and legs. He noted the applicant complained of arm pain which could not be defined where it goes and he also noted the applicant complained of difficulties working overhead and low back pain which is constant particularly in the morning and no radicular complaints but there is some pain in the left foot. There were more significant restrictions reported in walking for 1 to 2 minutes, sitting for about a minute and lifting light objects. Noted right shoulder surgery in 2019.
Dr Breit noted that his findings on examination were inconsistent with those of Dr Poplawski, whom Dr Breit noted examined the applicant by telehealth when Dr Poplawski was in New Zealand and it would be “fascinating” to see how he could determine evidence of and impingement tests by video.
Dr Breit was of the opinion that the applicant sustained no work injury. The nature and conditions of his employment did not result in rotator cuff pathology which is due to the underlying shoulder morphology. Dr Breit said that he was not doing overhead work which is what leads to rotator cuff problems in the workplace and that neck symptoms were secondary to the shoulder restriction and he may have aggravated some pre-existing lumbar spondylosis but any aggravation has long since ceased after more than five years. Dr Breit did not consider that there was any frank injury to the shoulders, cervical spine or lumbar spine in the course of his employment. He was of the opinion that the effect of any workplace injuries have fully resolved.
Dr Breit, when asked to comment upon the report of Dr Poplawski, did not consider that “a so-called examination and assessment by video produces a valid and meaningful report” as such assessment was inadequate and inappropriate. Dr Breit noted that the ranges of movement found by Dr Poplawski were obviously much better than what he found. Dr Breit was of the opinion that overall the applicant’s presentation was one of gross maximisation and inconsistency. Dr Breit was of the opinion that there is no permanent impairment as there was no injury involving the neck or the shoulders and the lumbar spine had settled and even if the cervical and lumbar spines were to be assessed then they would be assessed at 0% according to the relevant guides.
In his supplementary report of 2 September 2020, Dr Breit had accepted liability for the left upper extremity and he was asked to provide his assessment of permanent impairment in that regard. He assessed 7% whole person impairment in respect of the left upper extremity with a date of injury of 11 February 2015.
Mr Milazzo, consultant physiotherapist, provided a report dated 31 May 2016. This was an assessment of the need for further physiotherapy treatment.
Dr Price provided a report dated 27 April 2017. This was an injury management consultation and report. This was for the purpose of managing injury treatment, rehabilitation and return to work. The report indicated that a review of documentation had been done, a history was taken from the applicant and examination findings were noted. Dr Price considered the condition of the applicant’s shoulders and neck. Dr Price was of the opinion that the applicant was not fit for physical duties but would be fit for appropriate sales duties that are not overly repetitive and he was not fit for any above shoulder height work or any slightly repetitive duties. Dr Price provided a diagnosis of left shoulder rotator cuff syndrome that went on to be an occupational overuse strain that has radiated to the right shoulder causing a myofascial pain syndrome or fibromyalgic syndrome. Dr Price noted his discussions with the nominated treating doctor, Dr Ong, and also his discussions with the rehabilitation provider. I do not place weight on the opinion of Dr Price in this matter, as his report was provided in the context of injury management rather than diagnostic analysis of injury.

Reasons and decision

In my view, the applicant’s work with the respondent was physically demanding. His statement describes the strenuous nature of the activities that he was required to do at work. His evidence in this regard is not contradicted.
The applicant’s statement acknowledged, and the clinical records recorded, symptoms in his right shoulder and lower back prior to the commencement of his employment with the respondent. There was no evidence of medical consultations or treatment from September 2012 until the commencement of the applicant’s employment with the respondent on 27 August 2013. I accept the applicant’s evidence in his statement to the effect that prior to his injury with the respondent that he was not suffering from any pain or problems with his shoulders, back and neck.
The applicant in his statement said that in about 2014 he injured his neck at work when he fell when he stepped on some tangled wires and that he also put his left arm out to protect his face from a ladder which was nearby and he sustained injury to his left hand and shoulder. I have noted above the record made by the treating GP, Dr Sorani on 4 June 2014.
In late 2014 the clinical notes of the treating GP referred to the manual nature of the work. The consultation on 28 November 2014 recorded that the applicant “does lifting and pushing at work” in association with having lower back pain for four days and that Voltaren relieves the pain and a consultation on 11 February 2015 noted “still with recurrent lower back pain also with neck and left shoulder pain”.
The respondent submitted that the causal link between the left shoulder injury and the right shoulder condition was not established by the applicant because, at least partly, there was no temporal nexus as the onset of the right shoulder symptoms was not until June 2017, some 1.5 years after ceasing employment with the respondent. The respondent submitted that the opinion provided by Dr Poplawski was that the cumulative injury was the result of work with the respondent, not overuse generally. The respondent submitted that Dr Poplawski was of the opinion that the applicant sustained a cumulative injury to his shoulders, neck and back as a result of the heavy physical work he was required to carry out over the years. The respondent also referred to Dr Poplawski’s opinion that the applicant developed a cumulative injury to his right shoulder as a result of overuse of the right upper extremity in an attempt to protect the more symptomatic left shoulder at that time. The respondent submitted that this latter opinion by Dr Poplawski was not supported by the history recorded by Dr Poplawski as to the protective mechanism of overuse.
I do not accept these submissions by the respondent. The report of Dr Poplawski recorded a history of increasingly severe pain in the left shoulder for which the applicant was referred to Dr Herald in April 2015, who diagnosed an impingement syndrome of the left shoulder. Following MRI in May 2015, in which it was reported that there was pathology in the left shoulder including a small SLAP lesion, Dr Herald continued with conservative management but the applicant’s symptoms became more troublesome, as noted by Dr Poplawski. Dr Poplawski noted that arthroscopic surgery was carried out in January 2016 with partial release of symptoms but ongoing significant pain and limitation of movement in the left shoulder. It was in this context that Dr Poplawski recorded that the applicant became more reliant on the use of his right arm to protect his left shoulder and developed symptoms on this side also which progressively increased over a period of time.
In my view, considering the report of Dr Poplawski as a whole, a fair reading of his opinion is that the applicant developed a cumulative injury to the right shoulder as a result of overuse of the right upper extremity to protect the more symptomatic left shoulder at the time of conservative treatment of the left shoulder in 2015 and following the arthroscopic surgery to the left shoulder in January 2016. This was a period of overuse of the right shoulder which was not in the context of work duties, rather it was a period in the context of increasingly severe symptoms on the left shoulder. Indeed, Dr Herald said as much in his report of 22 November 2020 in which he provided the opinion that the right shoulder and neck symptoms were consequential injuries to the left shoulder injury, subsequent surgery and protracted recovery given the development of frozen shoulder in his left shoulder that required a lengthy period of overcompensation with his neck and his right shoulder. The applicant ceased employment with the respondent in December 2015 and was unable to manage with respect to short periods of work trials after that.
I prefer the opinions of Dr Poplawski, Dr Herald and Dr Darwish to that of Dr Breit.
Dr Breit recorded a somewhat different history of right shoulder pain starting in about December 2015 and “that it somehow relates to twisting wire” and “he then talks about pushing and pulling and moving 80 kg of wire” among other tasks which “again, could not be deciphered”. In my view, I prefer the opinions and histories taken by Dr Herald and Dr Poplawski in this regard, to that of Dr Breit, who acknowledged the difficulties in his history taking.

The respondent submitted that the clinical notes of the GP did not support a temporal nexus with the right shoulder condition. The respondent pointed to the first complaint to the GP regarding the right shoulder was in March 2017 and that there was not one single complaint about right shoulder symptoms between the date of ceasing work with the respondent in December 2015 and the complaints first recorded on 28 March 2017. It was submitted in reply by the applicant that the history of increasing severity of left shoulder symptoms eventually going to surgery in January 2016, with compensation for the left shoulder by overuse of the right shoulder, explains the period that elapsed until the first complaints of right shoulder pain to the treating medical practitioners. In my view, this submission by the applicant is supported by the opinions of Dr Herald and Dr Poplawski, as noted above. I have not accepted the opinion of Dr Breit on this point as noted above. Accordingly, I do not accept the respondent’s submission. I am comfortably satisfied that the applicant sustained right shoulder pain and symptoms due to overuse of the right shoulder in compensating for the left shoulder injury, with pain and symptoms emerging and increasing over a period of time with complaint of right shoulder symptoms emerging in March 2017. Hence, the consequential right shoulder condition resulted from the left shoulder injury.
The respondent also suggested that there was a history of a workers compensation claim in 2012, prior to the employment with the respondent, in respect of the right shoulder and lower back. I note that the clinical records of the GP referred to a workers compensation medical certificate. However this appears to me to be in the context of improving symptoms in the right shoulder and lower back and it is notable that there is no further record of consultation with the GP regarding the right shoulder and lower back from September 2012 until the attendances by the applicant commencing with the initial injury consultation in June 2014. Insofar as this submission was made in respect of causation and temporal nexus, I note that I have accepted the applicant’s evidence that he was pain-free and restriction free in his neck, back and both shoulders at the time of his commencement with the respondent. I do not accept that the existence of a prior workers compensation claim somehow undermined the causal connection between the lower back injury and the consequential right shoulder condition with the employment with the respondent.
Based upon the opinion of Dr Breit as to shortcomings of the findings of Dr Poplawski on video examination, the respondent submitted that this was one reason why the opinion of Dr Poplawski should not be accepted. In my view, Dr Poplawski provided a sound response to this criticism and I do not accept this submission. In my view, the conduct of and findings on examination of Dr Poplawski based upon a video consultation are soundly based and I find that the video consultation conducted by Dr Poplawski in these circumstances is reliable and acceptable as the basis for the expressed medical expert opinion.
The respondent also submitted that Dr Breit conducted physical examinations of the applicant in person on a number of occasions. I do not accept this submission as in my view as the specific matters recorded and raised in each report, together with the opinions, should be the foundation for considering his opinion, without necessarily a reference to the mode of examination. In any event, I have not accepted the criticism of the mode of examination conducted by Dr Poplawski.
The respondent submitted that Dr Breit noted a change of history in his report of 16 August 2017, in which he recorded the applicant said that his right shoulder pain commenced in December 2015. The respondent submitted that there is no contemporaneous evidence that the right shoulder pain commenced in December 2015. In my view, as noted by Dr Breit with the difficulties in history taking, this was not correct and the correct history was as recorded by Dr Herald and confirmed by Dr Poplawski. I therefore prefer the opinions of Dr Herald and Dr Poplawski in relation to the consequential right shoulder condition.
As elucidated in Moon v Conmah Pty Ltd [2009] NSWWCCPD 134, all that is required is that the applicant establish that the symptoms and restrictions in his right shoulder have resulted from his left shoulder injury. This is in the context of a claim for lump-sum compensation. In this case, I find that the symptoms and restrictions in the applicant’s right shoulder have resulted from his left shoulder injury. It is not necessary to establish a right shoulder injury and I do not prefer the opinion of Dr Breit in this regard.
Applying a common sense evaluation of causation, adopting Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796 (Kooragang), I am satisfied that the applicant sustained injury to his left shoulder and neck in about June 2014 as a result of the trip and fall at work and, in relation to the nature and conditions of employment, in my view the weight of the treating evidence points to the arduous nature of the applicant’s work with the respondent, as identified above and in the applicant’s statement, in which the applicant sustained injury to the left shoulder and aggravated the pre-existing degenerative conditions in the applicant’s neck and back.
In relation to the trip and fall at work in about June 2014, the clinical records of the GP confirmed that the event took place and that injuries were sustained to the left shoulder and neck. The records and report of Dr Herald also confirm that he took a similar history with continuing symptoms from that time while at the same time the applicant was continuing to perform his arduous heavy duties. I am comfortably satisfied that the applicant sustained injury to his left shoulder and neck as a result of the trip and fall at work in about June 2014.
I am also comfortably satisfied that the applicant sustained injury to his left shoulder, neck and lower back as a result of the arduous duties of his employment involving the repetitive activities of winding, lifting, bending and handling heavy fencing wire bundles, and that such activities included lifting and moving wire cores. The opinion of Dr Poplawski was that the cumulative injury to the applicant’s shoulders, neck and back was the result of the heavy physical work he carried out over the years, and he agreed in his supplementary report with Dr Herald that the right shoulder was a consequential condition. I am not satisfied that a frank injury took place on 11 February 2015 as in my view the instance recorded by Dr Darwish of the applicant moving a heavy metal object fits within the context of the arduous physical activities described above and in my view is best regarded as being an instance of such arduous activities at work over the period of the course of the applicant’s employment with the respondent.
The evidence of the treating neurosurgeon, Dr Darwish was that the degenerative changes in the cervical and lumbosacral spine were aggravated by the applicant’s employment. Dr Darwish believed that the aggravation had not ceased. In my view, the history and findings of Dr Darwish provides a fair climate for consideration of the arduous work performed by the applicant and the opinion of Dr Darwish that the underlying degenerative condition was aggravated. Dr Darwish recorded that the applicant had lifted a heavy metal object and that he worked as a machine operator and his work involved heavy lifting and pushing and pulling heavy objects.
Dr Breit’s report of 16 August 2017, again noting difficulties with the history taking, recorded the applicant said his low back pain occurred while at work which the applicant did not think was serious and that he told his GP about it in 2015. However, Dr Breit noted the first available investigation was from May 2017. In my view, the lower back and neck pain were of sufficient significance to warrant referral by Dr Herald to Dr Darwish. The applicant first consulted Dr Darwish regarding lower back and neck pain in June 2017. The clinical records of the GP in November 2014 noted lower back pain over the previous four days in the context of doing lifting and pushing at work and the clinical note of 11 February 2015 recorded that the applicant still had recurrent lower back pain and also neck and left shoulder pain.
Dr Breit’s later report of 19 August 2020 opined that the neck symptoms were secondary to the shoulder restriction and conceded there may have been aggravation of some pre-existing lumbar spondylosis, although such aggravation has long ceased. Dr Breit had recorded a history of back pain in the context of pushing heavy items, and then provided an opinion in response to the question of diagnosis caused by alleged workplace injuries including the lumbar spine, that the applicant sustained no work injury but then made the concession noted. Dr Breit later in the same report was of the opinion that there was an aggravation of the lumbar spine which has long since ended.
In my view, the balance of evidence is that the applicant sustained an aggravation of a pre-existing degenerative condition of his neck and lower back. I prefer the opinions of Dr Darwish and Dr Poplawski. Dr Poplawski noted injury to the lower back while manhandling bundles of wires on 11 February 2015, which continued to trouble him with bending and lifting activities, twisting of his spine and when carrying heavy equipment. As noted above, I have found that complaints of injury arising from activities recorded by Dr Poplawski with respect to 11 February 2015 are better viewed as forming an instance of the arduous activities over a period of time as described by the applicant. Indeed, Dr Poplawski additionally recorded relevant arduous activities such as manhandling bundles of wires, bending and lifting activities and carrying heavy equipment. Dr Poplawski and Dr Darwish were both of the opinion that the applicant sustained aggravation of his pre-existing degenerative conditions of his neck and back as a result of the physically demanding duties that he performed with the respondent.
I find that the applicant sustained a right shoulder condition consequential to the accepted left shoulder injury.
I find that the applicant sustained injury to his left shoulder and neck as a result of the trip and fall at work in about June 2014.
I find that the applicant sustained injury to the left shoulder and aggravation of pre-existing degenerative conditions of his neck and lower back as a result of the nature and conditions of his employment, that is arduous duties and activities that he performed in the course of his employment, as noted above, with the respondent until December 2015, such duties including an instance of lifting a heavy metal core on 11 February 2015, and also including an incident in about June 2014.
Dr Poplawski assessed the applicant’s cervical spine as DRE category I and assigned a permanent impairment of 0%. The applicant submitted that the cervical spine should also be referred to a Medical Assessor for the assessment of the degree of permanent impairment. The reason for this is that recent decisions of the Commission have found that a later appeal against a medical assessment on the grounds of deterioration of a condition or injury will not succeed and will not be referred for a further medical assessment unless the original medical assessment referral and assessment included the body system or part that is later sought to be appealed on the grounds of deterioration. The effect of such a non-inclusion of a body system or part is that the operation of section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) prevents a further assessment of that body system or part. I did not understand the respondent to oppose or consent to this submission.
In my view the referral for medical assessment can and should include the cervical spine. Section 322(2) of the 1998 Act provides that impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker. Impairment is not defined in the 1998 Act, nor in the relevant guidelines, the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition). At clause 1.1 the guidelines adopt the fifth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any deviation, the differences defined in the guidelines and the procedures detailed are to prevail. The guidelines are considered to have the force or effect of delegated legislation, as referred to in Ballas v Department of Education [2020] NSWCA 86.
Clause 1.58 of the guidelines provides the Commission has jurisdiction to determine disputes about assessed degree of permanent impairment where there is a discrepancy or inconsistency between medical reports that cannot be resolved between the parties. The discrepancy or inconsistency between medical reports referred to in clause 1.58 is not prescriptive as to which matters or assessments of the degree of permanent impairment are sufficient to engage the jurisdiction of the Commission. That is, a discrepancy or inconsistency between medical reports as to the total degree of permanent impairment is in my view sufficient. The Commission has jurisdiction to refer the cervical spine for assessment with the other body systems claimed as the medical dispute is for the total assessed degree of permanent impairment.
The guidelines and AMA 5 effectively do not permit an assessment of the degree of permanent impairment in respect of the cervical spine DRE category I other than 0%. Unlike other body systems such as the upper or lower extremities, an assessment of permanent impairment of the cervical spine that is not 5% or more is mandated to be 0%. There may be cases where there is assessed no permanent impairment resulting from the subject injury, but that is not the case here, at least based upon the assessment of Dr Poplawski. DRE category 2 (and higher categories) operates as a threshold for the degree of permanent impairment to be expressed as a percentage that is not 0%. In this context an assessment of 0% in respect of the cervical spine does not mean that there is no permanent impairment.
The applicant’s cervical spine has been assessed as being DRE category I (no significant clinical findings) by Dr Poplawski. Clinical findings in this context are considered to be significant having regard to the assessment or finding as to which DRE category the applicant’s symptoms are to be placed.
Dr Poplawski also found on examination of the neck mild asymmetric limitation of movement in the cervical spine with pain in the back of the neck and at the extremes of all ranges of motion.
In this case, the claim for permanent impairment is for 18%, as assessed by Dr Poplawski, and the body systems claimed in the ARD are right upper extremity, left upper extremity, lumbar spine and cervical spine. As Dr Poplawski’s findings on examination do not preclude an assessment of permanent impairment of the cervical spine, and for the reasons given above, the referral for medical assessment should also include the cervical spine.
Counsel did not refer to authority on this point, presumably as there is none.

[2021] NSWPIC 152

27 May 2021