Khalil v HealthShare NSW

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Khalil v HealthShare NSW [2024] NSWPIC 262
APPLICANT:	Sanaa Khalil
RESPONDENT:	HealthShare NSW
MEMBER:	John Turner
DATE OF DECISION:	21 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Sections 4 and 66 of the Workers Compensation Act 1987 (1987 Act), section 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); dispute as to whether injury to right shoulder is injury simpliciter or a disease injury due to the nature and conditions of employment; dispute as to consequential conditions of left shoulder, lumbar spine and cervical spine; dispute as to whether impairments of right shoulder, left shoulder, lumbar spine and cervical spine can be combined for the purposes of assessing impairment for section 66 of the 1987 Act; dispute as to admission of evidence pursuant to regulation 44 of the Workers Compensation Regulation 2016; McCarthy v Patrick Stevedores No 1 Pty Limited, Perry v Tanine Pty Ltd t/as Ermington Hotel, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, AV v AW, Ariton Mitic v Rail Corporation of NSW, Federal Broom Co Pty Ltd v Semlitch, Cemco (Australia) Pty Ltd t/as Carrall’s Engineering and Mining v Carrall, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, State of New South Wales v Bishop, and Kooragang Cement Pty Ltd v Bates cited; Held – the applicant sustained a disease injury as defined by section 4(b) of the 1987 Act to her right shoulder being an aggravation of a disease in accordance with section 4(b)(ii) due to the nature and conditions of her employment which included the pushing, pulling and washing of heavy trolleys with a deemed date of injury of 2 May 2015; the applicant sustained a consequential condition of her left shoulder as a result of the injury to the right shoulder on 2 May 2015; the applicant sustained consequential conditions of her cervical spine and lumbar spine as a result of injury to her right shoulder on 2 May 2015 and consequential condition sustained to her left shoulder; the injuries to the right shoulder, left shoulder, cervical spine and lumbar spine can be combined for the purposes of assessing permanent impairment pursuant to section 66 of the 1987 Act.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a disease injury as defined by s 4(b) of the Workers Compensation Act 1987 to her right shoulder being an aggravation of a disease in accordance with s 4(b)(ii) due to the nature and conditions of her employment which included the pushing, pulling and washing of heavy trolleys with a deemed date of injury of 2 May 2015. 2. The applicant sustained a consequential condition of her left shoulder as a result of the injury to the right shoulder on 2 May 2015. 3. The applicant sustained consequential conditions of her cervical spine and lumbar spine as a result of injury to her right shoulder on 2 May 2015 and consequential condition sustained to her left shoulder. 4. The injuries to the right shoulder, left shoulder, cervical spine and lumbar spine can be combined for the purposes of assessing permanent impairment pursuant to s 66 of the Workers Compensation Act 1987. The Commission orders: 5. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 2 May 2015 (Deemed - disease). b. Body systems/parts: i. right upper extremity (shoulder); ii. left upper extremity (shoulder) – consequential; iii. cervical spine – consequential, and iv. lumbar spine – consequential. c. Method of assessment: whole person impairment 6. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents. b. Reply and attached documents except for: (i) the reports of Dr Stephen Quain dated 24 November 2015 and 6 June 2017 at pages 3 to 8 and 13 to 16 of the Reply; (ii) the reports of Dr Frank Machart dated 15 May 2019 and 12 July 2019 at pages 17 to 24 and 25 to 27 of the Reply, and (iii) the following which is redacted from the report of Dr Bentivoglio dated 28 July 2021: 1. From section (d) on page 37 of the Reply: “He concluded the incident on 2 May 2015 aggravated the right shoulder and a further aggravation (presumably to the left shoulder) occurred in July 2015.” 2. From section (f) on page 37 of the Reply: “Dr Machart (whose opinion I respect) indicated that this lady had injured her left shoulder in the incident on 02/05/2015, but he did not see her until more than four years following the incident. He obtained a similar history to the one I obtained.” 3. The whole of the two paragraphs forming section (b) on page 39 of the Reply. 4. From section (c) on page 39 if the Reply: “Dr Machart considered the neck and back complaint was unrelated to her shoulder injury. I would agree with that assessment.” c. This Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

Sanaa Khalil, the applicant, was employed by HealthShare NSW, the respondent, as a hospital assistant in food services. It is the applicant’s evidence that in or around 1999 she commenced full-time work at Campbelltown Hospital before transferring to part-time work at Camden Hospital under NSW Health which later changed to HealthShare NSW.[1]
[1] ARD p 1.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which she alleges:
(a) that she has sustained a disease injury to both her shoulders as defined by s 4(b) of the Workers Compensation Act 1987 (the 1987 Act) due to the nature and conditions of her employment;
(b) that in the alternative, she sustained injury simpliciter to her right shoulder on
2 May 2015 whilst drying a trolley which she had hosed down and a consequential condition of her left shoulder as a result of compensating for the right shoulder injury, and
(c) that as a result of her shoulder injuries she adjusted her sleeping posture by stacking pillows for support and sleeping in an upright or semi-sitting position causing consequential conditions of her neck and back.
The applicant claims compensation for injury sustained on 2 May 2015 pursuant to s 66 of the 1987 Act for impairment of her right upper extremity (shoulder), left upper extremity (shoulder), cervical spine and lumbar spine.
The respondent does not dispute that the applicant sustained injury to her left and right shoulders. It is the respondent’s case however that the injury to the right shoulder is a frank injury, injury simpliciter, and not due to the nature and conditions of the applicant’s employment with the respondent. The respondent also disputes that the applicant has sustained consequential conditions of the left shoulder, cervical spine and lumbar spine.

ISSUES FOR DETERMINATION

In the arbitration hearing the respondent advised that:
(a) it accepts that the applicant sustained a frank injury, injury simpliciter, to her right shoulder on 2 May 2015, and
(b) that the applicant sustained injury to her left shoulder due to the nature and conditions of her employment on the deemed date of 29 July 2015.

The parties agree that the following issues remain in dispute:
(a)    the respondent disputes that the applicant has sustained a nature and conditions injury to her right shoulder;
(b) the respondent disputes that the right and left shoulder injuries and impairments can be combined for the purposes of claiming impairment compensation pursuant to s 66 of the 1987 Act;
(c)    the respondent disputes consequential loss or condition of the left shoulder due to the injury to the right shoulder, and
(d)    the respondent disputes consequential loss or condition of the cervical spine and lumbar spine.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
15 March 2024. Mr Jon Trainor, counsel, instructed by Mr Peter Li, solicitor, appeared for the applicant, who was present. Mr Fraser Doak, counsel, appeared for the respondent, instructed by Ms Kate Ralph. The proceedings were conducted in-person. 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 to Resolve a Dipsute (ARD) and attached documents, and
(b) Reply and attached documents except for:
(i)the reports of Dr Stephen Quain dated 24 November 2015 and 6 June 2017 at pages 3 to 8 and 13 to 16 of the Reply;
(ii)the reports of Dr Frank Machart dated 15 May 2019 and 12 July 2019 at pages 17 to 24 and 25 to 27 of the Reply, and
(iii)the following which is redacted from the report of Dr Bentivoglio dated
28 July 2021:
1. From section (d) on page 37 of the Reply:
“He concluded the incident on 2 May 2015 aggravated the right shoulder and a further aggravation (presumably to the left shoulder) occurred in July 2015.”
2. From section (f) on page 37 of the Reply:
“Dr Machart (whose opinion I respect) indicated that this lady had injured her left shoulder in the incident on 02/05/2015, but he did not see her until more than four years following the incident. He obtained a similar history to the one I obtained.”
3. The whole of the two paragraphs forming section (b) on page 39 of the Reply.
4. From section (c) on page 39 if the Reply:
“Dr Machart considered the neck and back complaint was unrelated to her shoulder injury. I would agree with that assessment.”

Pursuant to Regulation 44 of the Workers Compensation Regulation 2016 the applicant objected to the respondent relying on forensic reports from three different orthopaedic surgeons being Dr Stephen Quain, Dr Frank Machart and Dr John Bentivoglio.
The respondent elected to rely on the opinion of Dr Bentivoglio. The respondent does not rely on the reports of Dr Quain dated 24 November 2015 and 6 June 2017 and the reports of Dr Machart dated 15 May 2019 and 12 July 2019. Those reports are therefore rejected and do not form part of the evidence and are to be omitted from any referral to a Medical Assessor.
The applicant also sought to have any reference to the said reports of Dr Quain and
Dr Machart which appear in the report of Dr Bentivoglio dated 28 July 2021 redacted. In particular the applicant sought to have the following redacted:
(a) on page 37 of the Reply sections (d) and (f) in their entirety, and
(b) on page 39 of the Reply sections (b) and (c) in their entirety.
The respondent submitted:
(a)    In respect to section (d) on page 37 of the Reply the respondent objected to the redaction apart from the sentence:
“He concluded the incident on 2 May 2015 aggravated the right shoulder and a further aggravation (presumably to the left shoulder) occurred in July 2015.”
The respondent conceded that the above sentence contained opinion evidence and should be redacted. In the respondent’s submission the balance of the section is an expression of history.
(b)    In respect to section (f) on page 37 of the Reply the respondent opposed the redaction of the first paragraph on the basis that it contained history only. The respondent did not oppose the second paragraph which states the following being redacted:
“Dr Machart (whose opinion I respect) indicated that this lady had injured her left shoulder in the incident on 02/05/2015, but he did not see her until more than four years following the incident. He obtained a similar history to the one I obtained.”
(c)    The respondent did not object to the entirety of section (b) on page 39 of the Reply being redacted.
(d)    In respect to section (c) on page 39 of the Reply the respondent objected to the redaction of the first paragraph on the basis that it contained history only. The respondent consented to the redaction of the second paragraph which states the following:
“Dr Machart considered the neck and back complaint was unrelated to her shoulder injury. I would agree with that assessment.”

The applicant submitted that the prohibition in regulation 44 is absolute and that it is not something that should be read with a distinction between the histories recorded by the doctors and opinion. The applicant submitted that ultimately the reports must be out in their entirety and that would necessarily include the history. The mere fact that the history recorded has been put in the mouth of Dr Bentivoglio does not negate the fact that we are still dealing with an excluded report just in a different form.
Regulation 44 is not an absolute bar to the admission of a report as submitted on behalf of the applicant. Roche DP, in McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96, considered whether reports which were not admissible as forensic medical reports could be admitted for the limited purpose of relying on the histories recorded in the reports. Roche DP concluded that the admission of forensic reports for such a limited purpose was permissible if the material was relevant to an issue in dispute and the admission of the reports as witness statements do not involve any unfairness to the opposing party.
The histories recorded are potentially relevant to the issues in dispute with there being a dispute as to how the applicant sustained injury to her right shoulder and as to the development of consequential conditions of the left shoulder, cervical spine and lumbar spine.
There is no evidence that the applicant will be in any way prejudiced by the admission of the histories into evidence with the applicant having previously been in possession of not only the report of Dr Bentivoglio but also the reports of Dr Machart and Dr Quain and the respondent could have chosen to rely on any one of these reports.
I accepted the respondent’s submission in respect to the redaction and the following is redacted from the report of Dr Bentivoglio dated 28 July 2021:
(a)    From section (d) on page 37 of the Reply:
“He concluded the incident on 2 May 2015 aggravated the right shoulder and a further aggravation (presumably to the left shoulder) occurred in July 2015.”
(b)    From section (f) on page 37 of the Reply:
“Dr Machart (whose opinion I respect) indicated that this lady had injured her left shoulder in the incident on 02/05/2015, but he did not see her until more than four years following the incident. He obtained a similar history to the one I obtained.”
(c)    The whole of the two paragraphs forming section (b) on page 39 of the Reply.
(d)    From section (c) on page 39 if the Reply:
“Dr Machart considered the neck and back complaint was unrelated to her shoulder injury. I would agree with that assessment.”

Oral evidence

Neither party sought leave to adduce oral evidence.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.
Following the arbitration hearing the applicant provided brief further written submissions on a discrete point which had been overlooked at the time of the arbitration. The respondent was given the opportunity to respond to those submissions if required. No submissions were received from the respondent.

FINDINGS AND REASONS

Consideration and findings

Injury to the right shoulder

There is no dispute that the applicant suffered a work injury to her right shoulder on
2 May 2015. The respondent has accepted liability for the injury and paid workers compensation benefits. There is a dispute however as to whether the injury is a frank injury or an injury due to the nature and conditions of the applicant’s employment with the respondent.
The respondent submits that the applicant sustained a frank injury whilst it is the applicant’s primary submission that she sustained injury to her right shoulder as a result of the nature and conditions of her employment.
Whilst the phrases “frank injury” and “nature and conditions” are commonly used in workers compensation matters they do not actually appear in the workers compensation legislation.
Section 4 of the 1987 Act relevantly defines “injury” as follows:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and…”
The phrase “frank injury” is commonly used to refer to injury simpliciter under s 4(a) of the 1987 Act which requires an ascertainable or dramatic physiological change or disturbance of the normal physiological state.[2] “Suddenness” is not a necessary requirement.[3] Although “suddenness” may be relevant in distinguishing a physiological change from the natural progression of an underlying disease.
[2] Trustees of theSociety of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear).
[3] Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May).
In respect to the applicant’s submission that she has sustained a nature and conditions injury the applicant relies on disease injury as defined in s 4(b) of the 1987 Act. In Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253 (Perry) Burke CCJ held carpal tunnel syndrome to be a ‘disease’, saying:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”
It is the applicant’s evidence that at the time of injury she worked an average of 28 hours per week on a rotating roster and that her work duties with the respondent included:
(a)    preparing trays of food for patient’s meals;
(b)    delivering food and supplies to patients and floor pantries;
(c)    striping equipment used in food service including trolleys;
(d)    cleaning and maintaining food service equipment and cleaning the kitchen area;
(e)    collecting trays after patient’s meals and loading them onto trolleys and pushing/pulling the trolleys back to the kitchen area for cleaning, and
(f)    pushing/pulling fully loaded food trolleys out of the delivery truck and pushing the stripped and cleaned trolleys back onto the delivery truck.[4]
[4] ARD   pp 1-2.
It is the applicant’s evidence that her work duties placed strain on both her shoulders as well as her neck and lower back which at times felt sore but normally recovered after a good night’s sleep or her rostered days off work.[5]
[5] ARD p 2.
It is the applicant’s evidence that at times the regular food delivery truck would be unavailable due to either being broken down or being serviced. That the rental truck which was used on those occasions did not have the correct dimensions for the kitchen dock and as a result a timber plank was required to unload and load the food trolleys between the truck and the dock. It is the applicant’s evidence that the use of the timber plank made the task more difficult with a great deal of physical effort being required and that she often felt sore in her neck, shoulders and back after performing such duties.[6]
[6] ARD p 2.

It is also the applicant’s evidence that at times the hospital lift would be out of order. When this occurred the kitchen dock, which was in the basement, could not be used. On these occasions the applicant had to push and pull the loaded food trolleys across an uneven surface which at times caused the trolleys to fall over which the applicant then had to clean up and stand the trolley back up. It is the applicant’s evidence that on these occasions she often felt sore in her neck, back and shoulders.[7]
[7] ARD p 2.
The applicant’s evidence as to the nature of her work duties is not challenged by any countervailing evidence and there has been no submission made that the applicant’s evidence as to the nature of her work duties should not be accepted. I have no reason to doubt the reliability of the applicant’s evidence as to the nature of her work duties with the respondent and I therefore accept her evidence.
It is the applicant’s evidence that on or about 2 May 2015 she was washing and cleaning a trolley as part of her normal work duties, which required heavy use of both arms. That as she was cleaning the trolley she felt her right shoulder “pop” and experienced sharp pain in her right shoulder. She reported the incident and filled out an incident report form. She attended the Emergency Department at the hospital where X-rays were performed before she was sent home. The applicant was rostered off work for the next few days before she returned to work on normal duties.[8]
[8] ARD pp 2-3.
The applicant’s evidence is corroborated by the incident report completed by the applicant on 2 May 2015 in which the applicant recorded that she sustained injury on 2 May 2015 when washing the tea trolley when she tried to drain the water and felt a “click” sound and immediate pain in her right shoulder.[9]
[9] ARD pp 47-49.
On 1 May 2015, the day prior to the right shoulder injury being sustained, the applicant attended on Dr Juan He. The clinical record of the attendance records the reason for contact as right shoulder rotator cuff injury/supraspinatus tendonitis. The clinical record records that the applicant complained of right shoulder pain for a year which had gotten worse over the previous one to two months. There was no history of any fall or injury. There was no history of neck, spine or other joint pain. Curiously, in respect to the physical examination, the clinical record records that the right shoulder looked normal and non tender whilst the left shoulder was tender.[10]
[10] ARD p 169.
I am of the view that the clinical record contains a typographical error in that the results of the physical examination of the shoulders have been recorded against the incorrect shoulders. I am of this view as the clinical note is internally inconsistent with Dr He recording that the applicant complained of right shoulder pain and that there was no history of any other joint pain and yet observing on examination that the left shoulder was tender whilst the right shoulder looked normal. Furthermore, Dr He goes on to record in respect to his examination, without specifically identifying which shoulder, that there was a reduced range of motion and some discomfort with certain movements. The doctor then requests an ultrasound of the right shoulder only. In my view when reading the clinical record of the attendance as a whole it is clear that there has been a typographical error and that it was the left shoulder that looked normal and non tender on examination whilst the right shoulder was tender.
I have been unable to identify any complaints in respect to the shoulders in the clinical records prior to 1 May 2015.
The clinical record of the applicant’s attendance on Dr He on 1 May 2015 establishes that the applicant’s right shoulder was symptomatic prior to the incident on 2 May 2015, that it had been symptomatic for some time and that the symptoms had been increasing prior to
2 May 2015. In respect to any conflict that may exist between the applicant’s statement evidence and the content of the clinical record of 1 May 2015 as to the existence of right shoulder symptoms prior to 2 May 2015 I am of the view that the clinical record is to be preferred as a contemporaneous record where the applicant’s statement was made many years later.
It was submitted on behalf of the applicant that the incident on 2 May 2015 was an acute episode in an evolving degenerative right shoulder condition rather than a frank injury. That the medical evidence supports that the applicant suffered from right shoulder bursitis rather than a discrete tear and that the absence of any focal lesions supports that the condition is a degenerative nature and conditions injury.
The respondent submits that the applicant is effectively asking for an inference to be drawn that the right shoulder condition is work related without any proper basis for such an inference.
It was submitted on behalf of the respondent that there is no evidence of incapacity prior to the incident on 2 May 2015, that there is no evidence of popping in the right shoulder prior to 2 May 2015, and that there is no evidence of any pathology that caused the applicant to lose time off work or affected her ability to perform her work duties prior to 2 May 2015.
I accept the respondent’s submission. It is not the applicant’s evidence that she had suffered popping in her right shoulder or that she was unable to perform her work duties due to her right shoulder condition prior to 2 May 2015. There is no evidence that the applicant lost any time off work prior to 2 May 2015. However, I am satisfied on the evidence that the applicant’s right shoulder was symptomatic prior to 2 May 2015.
The respondent submits that the applicant experienced an immediate onset of right shoulder pain in the incident on 2 May 2015. It is the applicant’s evidence that she experienced an immediate onset of right shoulder pain. The pain was significant enough for the applicant to report the injury and to attend the Emergency Department at Camden Hospital. I therefore accept that the applicant experienced a sudden onset of right shoulder pain on 2 May 2015 however I am of the view and the evidence supports that the right shoulder was symptomatic prior to the incident on 2 May 2015.
The respondent correctly observed that the clinical record of the applicant’s attendance on
Dr He on 1 May 2015 contains no reference to work as a cause of the applicant’s complained of right shoulder symptoms. In fact, the clinical note contains no mention of the applicant’s work duties at all, not even a description of those duties.
The respondent submitted that there was no evidence from the applicant as to why there is no mention of work in the clinical record of Dr He for the attendance of 1 May 2015.
I am of the view that no inference of any weight can be drawn from the omission from the clinical note of Dr He of any reference to the applicant’s employment. The clinical note records no history of injury or fall, records no details of the applicant’s work duties and does not consider at all what has led to the development of the condition. This is unsurprising as the focus of Dr He, as the applicant’s general practitioner (GP), would have been on identifying the nature of the pathology and treating the condition. The applicant is not a doctor and may have had no particular view or opinion as the cause of the condition and even if she did have an opinion it would be questionable what weight could be given to that opinion due to the lack of any relevant expert qualifications.
The respondent submits that the opinion of Dr John Bentivoglio, orthopaedic surgeon, that the right shoulder condition is not the result of the nature and conditions of employment should be accepted. I do not accept the respondent’s submission for the following reasons.
Dr Bentivoglio provided a forensic medical report to the respondent dated 28 July 2021.[11]
Dr Bentivoglio records that the applicant advised him that on 2 May 2015 she was washing and cleaning a trolley and in doing so felt a “popping” sensation in her left shoulder. It is not in dispute, and the evidence supports, including the applicant’s report of injury and the applicant’s statement evidence that the injury on 2 May 2015 was to the right shoulder not the left. Dr Bentivoglio also records that the applicant reported that “she had not had a problem in her shoulder previously”.[12] The applicant may not have had a problem with her left shoulder previously however she had, as evidenced by the clinical note of Dr He dated
[11] Reply p 30-40.
[12] Reply p 31.
1 May 2015, right shoulder symptoms.
Dr Bentivoglio under the heading “DIAGNOSIS AND OPINION” stated that the popping sensation in the left shoulder when doing some form of work on 2 May 2015 possibly represented some degree of tearing involving the left shoulder rotator cuff tendon.
Dr Bentivoglio was asked for his opinion as to whether the injuries to both shoulders were frank injuries or caused by the nature and conditions of employment. In asking this question Dr Bentivoglio was directed to the fact that the applicant had reported on 1 May 2015 pain in her right shoulder which had been present for a year. Dr Bentivoglio responded by observing that:
“It is interesting to note her local doctor indicated she did have symptoms in her right shoulder for a period of one year prior to the specific incident as well as tenderness in her left shoulder. Possibly the nature and conditions of this lady’s employment could have produced the subacromial bursitis present in her right shoulder.”[13]
[13] Reply p 36.
Dr Bentivoglio therefore concludes when discussing the right shoulder, with a history of prior complaints that “[p]ossibly the nature and conditions of her employment could have produced the subacromial bursitis”.
Dr Bentivoglio in a single question (at Reply page 38) was asked what history of injury to the right shoulder was provided by the applicant, what his diagnosis was for the injury and his opinion as to whether it was a frank injury or a nature and conditions injury.
Dr Bentivoglio diagnosed subacromial bursitis involving the right shoulder together with some degree of degenerative change involving the acromioclavicular joint. The doctor records that the diagnosis was made on the history provided by the applicant (which as previously discussed was of no previous shoulder problems/that the left and not the right shoulder was injured on 2 May 2015/that she developed the right shoulder symptoms following injury to the left shoulder on 2 May 2015), physical examination as well as ultrasound and MRI scan findings. Dr Bentivoglio then concluded that he did not consider the right shoulder condition to be as the result of the nature and conditions of her employment. The only reason given for coming to this opinion was that there was no specific damage to the rotator cuff tendon.
Dr Bentivoglio does not explain why the lack of damage to the rotator cuff is relevant to his conclusion.
Dr Bentivoglio observed that the investigations only indicated subacromial bursitis together with some degree of Type 1 SLAP lesion involving the right shoulder.
In respect to a similar set of questions in respect to the left shoulder Dr Bentivoglio responded that the applicant had advised that the specific injury on 1 May 2015 (should be
2 May) was to her left shoulder. The doctor diagnosed minor tearing of her rotator cuff tendons in her left shoulder together with mild subacromial bursitis. Dr Bentivoglio again advised that the diagnosis was made on the history provided by the applicant, physical examination as well as MRI scan findings. In the opinion of Dr Bentivoglio from the history which the applicant provided the doctor consider the left shoulder injury to be a frank injury without providing any explanation or reasoning for his conclusion and in circumstances where there does appear to have been rotator cuff pathology.
The report of Dr Bentivoglio is affected by two significant errors in respect to the history which the doctor relied upon when forming his opinion. The first error being that the incident on 2 May 2015 involved the applicant’s left and not her right shoulder and the second error being that the applicant had no prior right shoulder complaints. When provided with a history of prior right shoulder complaints Dr Bentivoglio did consider it possible that the nature and conditions of employment could have produced the subacromial bursitis.
When asked to consider whether the right shoulder injury was frank or a nature and conditions injury the doctor did so on the basis of the aforementioned incorrect history. When the doctor concluded that he did not consider the right shoulder condition to be as the result of the nature and conditions of employment the only reason given for coming to his opinion was that there was no specific damage to the rotator cuff tendon. Dr Bentivoglio does not state why the lack of damage to the rotator cuff is relevant to his conclusion and does not state when providing a similar opinion in respect to the left shoulder why the presence of left shoulder rotator cuff pathology did not indicate that the left shoulder condition was due to the nature and conditions of employment.
Dr Yuk Kai Lee, orthopaedic surgeon, provided a forensic medical report to the applicant dated 13 April 2021.[14] Dr Lee noted that he had previously examined the applicant and provided a report dated 28 November 2016 which is not in evidence before me.
[14] ARD pp 20-27.
Dr Lee noted that the history which he had taken was that on 1 May 2015, when washing a trolley, the applicant felt a sharp pain in her right shoulder region. She also felt a pop. It was so bad that she stopped work and went to casualty. She took a couple of days off and reported the incident. Dr Lee diagnosed rotator cuff injuries to both shoulders.
The history taken by Dr Lee is incorrect in respect to recording that the incident occurred on 1 May 2015 instead of 2 May 2015 however nothing would appear to turn on this error. More significantly Dr Lee records no history of there being right shoulder symptoms prior to the incident on 2 May 2015 and provides no opinion as to whether the injury sustained to the right shoulder was a frank injury or a nature and conditions of employment injury.
Dr Lee provided a supplementary forensic medical report to the applicant dated 10 July 2023 in which the doctor responded to a series of questions. There appears to have been no further examination of the applicant conducted for the preparation of the report however
Dr Lee was provided with further documents which according to the list in the report included the clinical note from Dr He for the applicant’s attendance on 1 May 2015. Dr Lee however does not reference at any time in his report that the applicant had pre-existing right shoulder symptoms.
When asked as to whether, in his opinion, the applicant’s injury is an aggravation, acceleration, or deterioration of a disease and if so whether the applicant’s employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration Dr Lee simply states:
“She worked in the job for 16 years. In my opinion, Ms Khalil’s injury is an aggravation, acceleration, or deterioration of a disease and her employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
The doctor gives no reasons for his opinion which is of particular significance given that the only work activity that Dr Lee refers to the applicant performing in either of the two reports before me is the washing of the trolley at the time of the incident on 2 May 2015.
I find the opinion of Dr Lee to be of no assistance in determining the nature of the injury sustained to the right shoulder.
In addition to the opinion of Dr Lee the applicant relies on the opinion of the GP,
Dr Hattotuwa, and the orthopaedic surgeon, A/Prof John Ireland.
A/Prof Ireland reported to Dr Hattotuwa on 2 May 2016[15] that the applicant frequently had to push heavy trolleys laden with food, that the trolleys weighed up to 250kg and the applicant frequently found that pushing the trolleys in and out of lifts required a lot of force.
[15] ARD pp 208-209.
A/Prof Ireland recorded that the applicant recounted that a specific injury occurred on
5 May 2015 when washing a trolley when she tilted the trolley to get the water off. This resulted in sharp pain in her right shoulder.
I find the report of A/Prof Ireland to be of no assistance in respect to determining the issue of the nature of the injury sustained to the right shoulder. Whilst A/Prof Ireland notes that an MRI had shown significant subacromial bursitis and moderate tendinopathy in both shoulders the doctor makes no comment in respect to diagnosis, records no history of the pre-existing right shoulder condition and provides no opinion as to whether the right shoulder injury is a frank injury or an injury due to the nature and conditions of the applicant’s work duties.
Turning to the applicant’s GP, Dr Hattotuwa. On 3 August 2015 the applicant attended on
Dr Hattotuwa to discuss pain in both shoulders for a few months. The clinical record of the attendance records that the doctor took a history of the applicant having to push heavy trolleys and that she had been suffering with sore shoulders for a few months. That the symptoms became worse after cleaning a trolley on 2 May 2015, when she heard a click and pain in her right shoulder. She again felt pain on 29 July 2015, this time on the left without there being an injury.
Dr Hattotuwa recorded that the applicant wished to go with workcover as a patient and the applicant appears to have reported to the doctor that she had suffered with the ongoing pain for a while due to the nature of her work.[16] The clinical record is brief but it would appear from the wording that Dr Hattotuwa has recorded the applicant’s opinion as to the cause of her shoulder symptoms rather than the doctor’s own opinion.
[16] ARD p 168.
On 20 August 2015[17] in response to a questionnaire from QBE insurance Dr Hattotuwa provided a diagnosis in respect to both shoulders of bursitis and tendinopathy. Dr Hattotuwa also reported that in the doctor’s opinion the reported mechanism of injury was consistent noting that the applicant’s work involved the pushing, pulling and cleaning of trolleys on a regular basis.
[17] ARD pp 28-29.
Dr Hattotuwa again reported on the applicant on 2 November 2020.[18] In response to a request to provide a history as to the description given by the applicant as to how she sustained the work injuries to her shoulders, Dr Hattotuwa states that the applicant sustained her shoulder injuries by pushing heavy trolleys and cleaning them whilst she was working for the respondent. Dr Hattotuwa goes on to state that the applicant had a gradual onset of pain in her shoulders due to the nature and conditions of her job for a little while and heard a click with some pain in her right shoulder on 2 May 2015 after cleaning a trolley. Then again on
[18] ARD pp. 38-39.
29 July 2015 she felt some pain and some sound in her left shoulder after cleaning the trolley.
Whilst the request posed to Dr Hattotuwa was to provide a history as to the description given by the applicant as to how she sustained the work injuries to her shoulders the doctor’s response, in my view, is expressed as an opinion of the doctor as to how the applicant sustained injury to her shoulders.
With a commonsense evaluation of the causal chain,[19] doing the best I can with the evidence available, I am of the view that the applicant did not sustain an injury simpliciter to her right shoulder but rather a disease injury in accordance with s 4(b)(ii) of the 1987 Act due to the nature and conditions of her employment for the following reasons.
[19] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).

As previously discussed, I accept the applicant’s evidence in respect to the nature of her work duties with the respondent. Those work duties were physically heavy and demanding in nature and I accept that those duties which included the pushing, pulling and washing of heavy trolleys would have placed strain on both the applicant’s shoulders.
It is the applicant’s evidence that as a result of her work duties she would feel sore in both her shoulders, neck and lower back. I have previously concluded that the applicant’s evidence and in particular the clinical record of the applicant’s attendance on Dr He on
1 May 2015 establishes that the applicant’s right shoulder was symptomatic prior to the incident on 2 May 2015. That the right shoulder had been symptomatic for some time and that the symptoms had been worsening prior to 2 May 2015.
I prefer and accept the opinion of the GP, Dr Hattotuwa, that the applicant sustained injury to her right shoulder as a result of the nature of her work duties. Dr Hattotuwa has a correct history in respect to the nature of the applicant’s work duties, a history that there were pre-existing right shoulder symptoms which rather than commencing on 2 May 2015 became worse, and who makes a diagnosis of right shoulder bursitis and tendinopathy. The opinion of Dr Hattotuwa is to some extent supported by Dr Bentivoglio. Whilst the report of
Dr Bentivoglio is highly problematic the doctor does express the qualified opinion that it is possible that the nature and conditions of the applicant’s employment could have produced the subacromial bursitis present in the right shoulder.
I therefore accept the applicant’s submission that the incident on 2 May 2015 was an acute episode in an evolving degenerative right shoulder condition rather than a frank injury or injury simpliciter. In the words of Burke CCJ in Perry the injury to the right shoulder “…is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence”.
Incapacity occurred for the first time with the acute aggravation on 2 May 2015 however the condition was pre-existing and symptomatic prior to that point. In my view nothing of significance turns on the popping or clicking sound in the right shoulder. There is no evidence on the radiology of any significant tear or other traumatic lesion in the right shoulder. Dr Bentivoglio did consider that the sound could have arisen from tearing of the rotator cuff but did so on the basis that it emanated from the left shoulder.
No submissions were put by either party in respect to ‘main contributing factor’. The test of ‘main contributing factor’ involves a consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor: AV v AW [2020] NSWWCCPD 9. In a matter involving s 4(b)(ii), an “aggravation, acceleration, exacerbation or deterioration” of a disease, the issue is whether employment was the main contributing factor ‘to the aggravation, acceleration, exacerbation or deterioration of that disease’ and not to the overall pathology or the overall disease process: Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013 8 April 2014) (Mitic). For there to be an aggravation or exacerbation of a disease all that is required is an intensifying of the symptoms: Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch). There is no evidence that there was any other contributing factor to the aggravation of the disease other the applicant’s employment and therefore I find that the applicant’s employment was the “main contributing factor”.

Left shoulder injury

It is the applicant’s evidence that after returning to work following the injury on 2 May 2015 she place increasing strain on her left shoulder to compensate for the pain and weakness in her right shoulder. She struggled with the tasks required of her, but persisted as she liked her job, needed the money, didn’t want to go on workers compensation and hoped that the problem would get better.[20]
[20] ARD p 3.
It is the applicant’s evidence that in the months following the injury to her right shoulder on
[21] ARD p 3.
[22] ARD p 3.
2 May 2015 to around 29 July 2015 she began experiencing pain in her left shoulder as she began compensating for her injured right shoulder in the course of her employment.[21] That on 29 July 2015 she felt a pop in her left shoulder whilst she was performing her normal work duties following which she attended the Emergency Department at Camden Hospital in relation to her left shoulder.[22]
The ED Discharge Referral from Camden Hospital confirms that the applicant presented on 29 July 2015 with left shoulder pain and that she reported that she had been experiencing bilateral shoulder pain for many years. The applicant reported that she worked in the food services department at the hospital and that she pushed the trolley daily and had been treated for shoulder pain.[23]
[23] ARD pp 50-51.
The applicant attended on Dr Hattotuwa on 3 August 2015 to discuss “pain in both shoulders for few months”. At that time Dr Hattotuwa took a history of the applicant having to push heavy trolleys and that she had had suffered with sore shoulders for a few months. Got worse after cleaning a trolley on 2 May 2015, heard a click sound and pain in right shoulder. She again felt pain on 29 July 2015, this time on the left. Applicant denied acute injury.[24]
[24] ARD p 168.
It is the applicant’s primary submission that a single nature and conditions injury has been sustained to both shoulders.
I have previously found that the applicant sustained injury to her right shoulder as a result of the nature and conditions of her employment with the respondent. The respondent does not dispute that the applicant sustained injury to her left shoulder as a result of the nature and conditions of her employment.
Section 322(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides that impairments “that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment…”
As the right and left shoulder injuries both arise out of the same nature and conditions and therefore the same “injurious event” they are to be assessed together.[25]
[25] Cemco (Australia) Pty Ltd t/as Carrall’s Engineering and Mining v Carrall [2009] NSWWCCPD 76.

Neck and back injury

It is the applicant’s case that she has developed a consequential condition of the lumbar and cervical spine regions as a result of the effects which her shoulder injuries have had on her sleeping position.
The applicant denies pre-existing injuries or conditions affecting her neck or low back.[26]
[26] ARD p 3.
It is the applicant’s evidence that due to her work related shoulder injuries she could not sleep laying on either side or flat on her back. Instead, she slept propped up on several pillows to reduce pressure on her shoulders which caused her back to be injured. It is the applicant’s evidence that she never had back complaints prior to the work injuries to her shoulders.[27]
[27] ARD p 3.
It is also the applicant’s evidence that due to the worsening pain in both her shoulders she had to adjust the way that she slept. That she slept in a recliner (which the insurer supplied) or with pillows stacked behind her neck and back in bed, which caused pain to develop in her neck and lower back.[28]
[28] ARD p 5.
The respondent submitted that the applicant does not actually mention her neck in her statement evidence but concedes there is reference to it in the clinical records. I note however that the applicant at [45] in her statement does state:
“I have sleep in a recliner (which the insurance company supplied to me) or with stacked pillows behind my neck/back in bed, which has been causing pain to develop in my neck and lower back.”
It is the applicant’s evidence that she underwent left shoulder surgery in April 2018[29] and that following the surgery she did not feel any improvement in her left shoulder symptoms and had increasing difficulty sleeping.[30]
[29] ARD p 4.
[30] ARD p 5.
The clinical records support that the applicant did not suffer from any significant low back or neck complaints prior to the incident on 2 May 2015. The applicant did attend on
Dr Hattotuwa on 27 August 2014 to discuss ongoing back pain however it appears that this may have been related to endometriosis and I have not otherwise identified any other prior complaints in the clinical records in respect to the low back or neck.
I am of the view and find that the applicant has suffered consequential conditions of the cervical and lumbar spine as a result of the injuries sustained to her shoulders for the following reasons.
The law is settled that it is not necessary for the applicant to establish that the alleged consequential conditions of the cervical and lumbar spine are an ‘injury’ within the meaning of s 4 of the 1987 Act.[31] What the applicant needs to establish is that the conditions have resulted from the work related shoulder injuries.[32]
[31] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23.
[32] Moon v Conmah Pty Limited [2009] NSWWCCPD 134.
The question of whether a consequential condition has been sustained is a question of fact.[33] Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain.[34]
[33] State of New South Wales v Bishop [2014] NSWCA 354.
[34] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
I accept the applicant’s evidence that she did not suffer from any pre-existing injuries or conditions affecting her neck or lower back. Whilst it is the applicant’s evidence that her work duties put strain on her lower back and neck and that at times, she felt sore, it is also her evidence that she normally recovered after a good night’s sleep and/or rostered day off. The clinical evidence does not reveal any neck or back complaints of any significance prior to
2 May 2015.
I also accept the applicant’s evidence that due to her shoulder injuries she could not sleep on either side or flat on her back. Instead, she slept propped up on several pillows to reduce the pressure on her shoulders or in a recliner chair which was paid for by the insurer. The applicant’s evidence is supported by the clinical records which record that the applicant was having difficulties sleeping due to her shoulder injuries at least by January 2016 with the applicant complaining to Dr Hattotuwa on 19 January 2016 that she was finding it hard to sleep due to the pain.[35]
[35] ARD p 159.
The clinical evidence also supports that the applicant made significant and repeated complaints of neck and lower back pain following the shoulder injuries as well as complaints in respect to her sleeping position.
On 15 March 2016 the applicant again reported to Dr Hattotuwa that she was having difficulty sleeping due to pain.[36] On 15 July 2016 the applicant reported to Dr Hattotuwa that she was unable to sleep due to difficulty in turning to either side which was causing neck pain.[37]
[36] ARD p 158.
[37] ARD p 154.
On 14 October 2016 the applicant complained to Dr Hattotuwa of neck and low back pain related to posture and inability to turn or sleep in certain positions due to shoulder problems.
The clinical record for the applicant’s attendance also records “Back problem also due to chronic strain due to the nature of work.”[38] We do not know from the clinical record if that was an opinion of Dr Hattotuwa or the applicant’s belief. We also do not know on what basis that opinion or belief was formed given the lack of complaint in respect to the low back prior to
[38] ARD pp 152-153.
2 May 2015 and the fact that the applicant had been off work by 14 October 2016 for over a year.
The applicant attended on Dr Soni for her neck pain on 16 January 2017,[39] and on
Dr Hattotuwa for neck and shoulder pain on 30 January 2017.[40] On 10 March 2017
[39] ARD p 102.
[40] ARD p 100.
[41] ARD p 99.
Dr Hattotuwa recorded that the applicant was having difficulty sleeping due to back pain “as she was sitting on bed”.[41]
On 30 March 2017 Dr Hattotuwa noted Dr Dave had apparently told the applicant that her neck condition was related to the way she had been sleeping due to her shoulder problem.[42] On 15 May 2017 Dr Hattotuwa appears to record that Dr Dave was of the opinion that the neck pain was related to over compensation for shoulder pain and the posture in which she was sleeping which was exacerbating asymptomatic degenerative disease.[43]
[42] ARD p 98.
[43] ARD p 97.
On 13 October 2017 the applicant complained to Dr Hattotuwa of back and neck pain causing sleep deprivation.[44] On 7 November 2018 Dr Hattotuwa noted that the applicant’s sleep was affected by ongoing neck pain and that there was some back pain.[45] On
11 December 2018 the applicant complained to Dr Hattotuwa of back pain[46] and on
[44] ARD p 93.
[45] ARD p 82.
[46] ARD p 82.
[47] ARD p 81.
9 January 2019 of a recent exacerbation of her lower back pain during Christmas.[47]
On 22 January 2019 the applicant attended on Dr Hattotuwa for a workcover consultation. The clinical record of the attendance records that the applicant was not managing her ongoing shoulder and back pain and that the insurance company had not accepted liability for the back condition. Dr Hattotuwa recorded in the clinical note that the back pain started gradually due to the applicant’s sleeping position as she could not lie down since her shoulder operation. The applicant was sleeping in a recliner. Dr Hattotuwa noted that the applicant had never had back pain prior to the shoulder problem. Dr Hattotuwa noted on examination that the applicant was in pain and unable to sit for more than 20 minutes.[48]
[48] ARD p 80.
On 5 February 2019 the applicant attended on Dr Hattotuwa to discuss the failure of the insurer to accept liability for her lower back pain. Dr Hattotuwa appears to have telephoned the applicant’s case manager and explained to them the mechanism of back pain secondary to the shoulder injury however the case manager was not willing to accept liability.[49]
[49] ARD p 79.
On 11 February 2019 Dr Chandra Dave, orthopaedic surgeon, reported to Dr Hattotuwa[50] that the applicant was having ongoing issues with her back as well as her shoulders.
[50] ARD p 34.
Dr Dave observed that a CT scan had shown some spondylotic changes as well as some disc protrusions. Dr Dave noted that the applicant had no history of prior back problems and the applicant felt that the increased load on her lumbosacral spine and stress and immobilisation of her shoulders and hips had caused an exacerbation and precipitated the current situation.
On 19 February 2019 the applicant again attended on Dr Hattotuwa to discuss her lower back pain.[51] On 9 April 2019 the applicant attended on Dr Hattotuwa in respect to her shoulder and neck problems at which time Dr Hattotuwa noted minimal left shoulder movement and that the applicant also had a stiff neck.[52]
[51] ARD pp 78-79.
[52] ARD pp 77-78.
On 30 April 2020 Dr Chandra Dave reported to Dr Hattotuwa[53] that the applicant has a history of low back pain which she feels is from the position in which she is sleeping where she sleeps upright putting pressure on her spine.
[53] ARD p 35.
On 26 October 2021 the applicant attended on Dr Hattotuwa. The clinical note of the attendance relevantly records that the applicant was still unable to sleep in her bed and that she slept on a recliner.[54]
[54] ARD p 55.
The clinical records record that the applicant made significant and continued complaints of neck and back pain following injury to her shoulders. The clinical records also support that the applicant believed that her neck and lower back symptoms were caused by the sleeping arrangements which she had adopted due to her shoulder injuries.
It was submitted on behalf of the applicant that the development of the neck and back symptoms following the injuries to both the shoulders and the consequential alteration in the applicant’s sleeping position is a strong indicator that she had developed consequential conditions of the lumbar and cervical spine.
Whilst I accept that the contemporaneous development of the neck and back symptoms may be indicative of the development of a consequential condition it cannot be ignored that the neck and lumbar spine pain could have resulted from other factors other than the shoulder injuries and it is therefore necessary to consider the expert medical evidence as to causation.
The applicant’s GP, Dr Hattotuwa, reported on 2 November 2020[55] that the applicant had reported that she was having difficulty sleeping due to her bilateral shoulder pain. She had difficulty turning in bed at night and had to adjust her posture to minimise her pain, so that she could have a reasonable sleep and she tended to sit in an inclined position in bed.
[55] ARD pp 38-39.
Dr Hattotuwa was also aware that the applicant was using a recliner chair to sleep following surgery.
In the opinion of Dr Hattotuwa, the applicant’s altered sleeping position is the main factor in her spinal problems. Dr Hattotuwa observed that the applicant was not complaining of any of these symptoms prior to her shoulder injuries causing sleeping issues and in the opinion of Dr Hattotuwa the adjusted posture during sleep to minimise the shoulder pain would have caused significant strain to her neck and back over time.
Dr Hattotuwa was of the opinion, based on MRI scans of the cervical and lumbar spines that the neck pain is discogenic due to C4/C5/C6 disc osteophyte complex and her back pain is due to disc bulges at L2/3 and L3/4.
Dr Hattotuwa again reported on the applicant on 18 May 2022.[56] Dr Hattotuwa reported that the applicant started complaining of neck pain since she had been unable to find a comfortable position to sleep at night due to her bilateral shoulder pain and started to sleep in an upright position to avoid discomfort. Dr Hattotuwa was again of the opinion that sleeping in that sort of awkward position in the longer term could aggravate the pre-existing previously asymptomatic degenerative condition in her cervical spine due to the ongoing strain on her neck.
[56] ARD pp 36-37.
Dr Hattotuwa was also of the opinion that the applicant’s sleeping in a recliner chair to avoid shoulder pain could in the longer term put significant strain on the lower back which could aggravate the previously asymptomatic degenerative disease in her lumbar spine and cause lower back pain.
The respondent criticised the opinion of Dr Hattotuwa that sleeping in the recliner or in an upright position in the longer term could aggravate previously asymptomatic degenerative conditions of the lumbar and cervical spine on the basis that the doctor does not define what the longer term means. I do not accept the respondent’s submission.
Whilst Dr Hattotuwa may not provide a defined period in terms of days, months or years
Dr Hattotuwa clearly concludes that the period had been sufficient to actually cause the injury to the applicant concluding in the doctor’s report of 2 November 2020:
“I believe that ongoing altered sleep pattern is the main factor in her spinal problems as she was not complaining of any of these symptoms prior to her shoulder injury causing sleeping issue. And as I mentioned in my answer to question 4, her adjusted posture during the sleep to minimise her shoulder pain would have cause significant strain on her neck and back over the time.”[57]
[57] ARD p 39.
The respondent submits that the opinion of Dr Bentivoglio that the applicant’s neck and low back condition is entirely constitutional in nature and unrelated to her altered sleeping habits should be preferred and accepted.

Dr Bentivoglio records that the applicant reported that probably in early 2017 she started to experience symptoms in her neck which she attributed to the way that she was sleeping. She had not previously had a problem with her neck.
The applicant reported to Dr Bentivoglio that she started to develop low back pain in 2019 which she also attributed to the way that she had been sleeping. She used multiple pillows around her neck and back and often slept in a recliner chair. The respondent conceded at the arbitration that the purchase of the recliner had been paid for at workers compensation.
In the absence of any incident Dr Bentivoglio considered the applicant’s back complaint and symptoms to be entirely constitutional in origin and not related to her employment or sleeping habits.
Similarly, Dr Bentivoglio is of the opinion that any neck symptoms are not related to the applicant’s employment but are constitutional in origin. Dr Bentivoglio observed that the applicant had a normal amount of degenerative changes present in her cervical spine for a person of her age.
In the opinion of Dr Bentivoglio it is not a rational statement that a person’s sleeping arrangements could produce neck and back pain. Dr Bentivoglio observes that as a spinal surgeon, with two publications in an international journal, nobody had ever advised him, and he has never seen any documentation to substantiate a statement that neck and back complaints could be produced by using stacked pillows. Dr Bentivoglio is therefore of the opinion that the applicant’s neck and back complaints have got nothing to do with the applicant’s employment. In the opinion of Dr Bentivoglio there is no injury to the applicant’s cervical or lumbar spine and her neck and back complaints are constitutional abnormalities.
I do not accept the opinion of Dr Bentivoglio. Dr Bentivoglio does not provide any reasoning as to why a person’s sleeping arrangements could not produce neck and back pain and whilst Dr Bentivoglio states that he has never seen any documentation to substantiate a statement that neck and back complaints could be produced by stacked pillows the doctor does not appear to make any attempt to actually assess whether such a mechanism may lead to aggravation of degenerative spinal conditions. I find the doctors seemingly off handed dismissal of the proposition that an altered sleeping position could cause neck and low back pain somewhat surprising given the significant amount of advertising that occurs in respect to orthopaedic mattress and pillow technology and the not unusual complaints that are made in respect to back pain when sleeping on an unfamiliar mattress or bed.
Dr Lee in his report of 13 April 2021 recorded that in his opinion the applicant’s sleeping in a recliner chair and/or in a semi seated position stacked up on pillows could aggravate her neck and low back and in the opinion of Dr Lee the applicant’s neck and low back injuries are a consequence of the way she has been sleeping after her left shoulder surgery. However, Dr Lee in his report of 10 July 2023 was asked to provide his opinion as to whether the employment duties over time and initial injury to the right shoulder would have caused or materially contributed to the applicant’s cervical and lumbar spine injuries.
Dr Lee responded that the applicant worked in her job for 16 years and in the doctor’s opinion the applicant’s employment duties over time and initial injury to the right shoulder would have caused or materially contributed to her current and consequential cervical and lumbar spine injury. The opinion of Dr Lee is therefore inconsistent between the two reports and the doctor provides no reasoning for his opinion expressed in his report of 10 July 2023 and does not state whether the applicants sleeping arrangements due to her shoulder injuries has resulted in injury to the cervical and lumbar spine regions.
I prefer and accept the opinion of Dr Hattotuwa. Dr Hattotuwa in forming his opinion as to causation has a correct history of the development of the applicant’s symptoms and the applicant’s sleeping arrangements having been the applicant’s GP at the time. The doctor has considered the potential mechanism of injury against the applicant’s underlying pathology and in my view has come to a logical and reasoned opinion.

SUMMARY

I find that:
(a) the applicant sustained a disease injury as defined by s 4(b) of the 1987 Act to her right shoulder being an aggravation of a disease in accordance with s 4(b)(ii) due to the nature and conditions of her employment which included the pushing, pulling and washing of heavy trolleys with a deemed date of injury of 2 May 2015;
(b) the applicant sustained a consequential condition of her left shoulder as a result of the injury to the right shoulder on 2 May 2015;
(c) the applicant sustained consequential conditions of her cervical spine and lumbar spine as a result of injury to her right shoulder on 2 May 2015 and consequential condition sustained to the left shoulder, and
(d) the injuries to the right shoulder, left shoulder, cervical spine and lumbar spine can be combined for the purposes of assessing permanent impairment pursuant to s 66 of the 1987 Act.

[2024] NSWPIC 262

21 May 2024