Macey v Platts Partnership - [2021] NSWPIC 77

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Macey v Platts Partnership [2021] NSWPIC 77
APPLICANT:	Shawn Macey
RESPONDENT:	Platts Partnership
MEMBER:	Mr Brett Batchelor
DATE OF DECISION:	13 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for permanent impairment compensation pursuant to section 66 of the 1987 Act as a result of undisputed injury to the left upper extremity (shoulder), disputed injury to the cervical spine on the date of injury to the left shoulder, and disputed condition in the cervical spine consequent upon injury to the left shoulder and subsequent surgery thereon; examination of the evidence of post shoulder injury complaint in respect of the cervical spine in the clinical notes of the treating practitioners; finding in accordance with the principles of causation referred to in Kooragang Cement Pty Ltd v Bates and Murray v Shillingsworth that the applicant had suffered injury to the cervical spine on the date of the undisputed injury to the left shoulder, and also a condition in the cervical spine consequent upon injury to the left shoulder and the subsequent surgical treatment of that shoulder injury; matter referred to Medical Assessor for assessment of whole person impairment as a result of injury to the left upper extremity (shoulder) and to the cervical spine, and condition in the cervical spine consequent upon the left shoulder injury.
DETERMINATIONS MADE:	1. The applicant sustained injury to the cervical spine on 29 March 2015. 2. The applicant suffered a condition in his cervical spine consequent upon injury to the left upper extremity (shoulder) on 29 March 2015. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as a result of: (a) injury to the left upper extremity (shoulder) on 29 March 2015; (b) injury to the cervical spine on 29 March 2015, and (c) condition in the cervical spine consequent upon injury to the left upper extremity (shoulder) on 29 March 2015. 4. The documents to be referred to the Medical Assessor are : (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) this Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

Shawn Macey (the applicant/Mr Macey) claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury to his left upper extremity (shoulder) and cervical spine on or about 28 March 2015 arising out of or in the course of his employment with Platts Partnership (the respondent). Mr Macey was working on the respondent’s dairy farm at that time.
On the date of injury Mr Macey was performing his work duties in the dairy. He was wearing gumboots, pushing cows from the yard onto a concrete area which lead into the dairy, when he slipped on a section of concrete which had become slippery from rain, dirt and cowpats. He lost his footing and as he fell to the ground, attempted to grab hold of a nearby gate in order to stop himself from falling.
As he grabbed the gate, his arm became caught, dislocating his left shoulder.

Mr Macey managed to put his shoulder back into place and continued with his shift despite experiencing severe pain in his left shoulder and arm. He states he reported the injury to supervisors and attended Bega Hospital on the afternoon of 28 March 2015 where he received treatment in the Emergency Department.

The applicant attended upon his general practitioner, Dr Reza Meschi, on 30 March 2015 complaining of pain in his left shoulder “…from yesterday”[1]. On 8 April 2015, the applicant underwent an MRI scan on his left shoulder and on 10 April Dr Meschi referred him to orthopaedic surgeon, Dr Nott, who advised that little could be done by way of surgical intervention and referred Mr Macey for physiotherapy.
[1] Application to Resolve a Dispute (ARD) p 81.

The applicant commenced physiotherapy with Sapphire Coast Physiotherapy in Bega on or about 20 April 2015. In August 2015 he returned to see Dr Nott who referred him to Dr Maurizio Damiani, orthopaedic surgeon, for a second opinion. Dr Damiani first saw Mr Macey on 14 October 2015[2]. After reviewing scans the doctor recommended surgery which was carried out on 13 November 2015, a left shoulder arthroscopy and anterior and superior labral repair. The applicant remained under the care of Dr Damiani who carried out further surgery on the left shoulder on 13 September 2016 and 29 August 2017. The surgery of 13 September 2016 was decompression of the suprascapular nerve, and that of 29 August 2017, a latissimus dorsi transfer in an attempt to regain shoulder function and alleviate pain levels.
[2] Reply p 45.

The applicant continued to work in the respondent’s dairy until May 2017, attempting his normal hours and duties but struggling because of the pain, stiffness and weakness in the left shoulder. He was off work from May 2017, being certified for restricted duties 18 hours a week. From August 2017 he was unable to work at all. He then moved to Queensland and came under the care of general practitioner, Dr Adie, and pain specialist, Dr Georgius. An attempted trial at return to work in February 2019, doing gardening and handyman work four hours a day, three days a week was not successful because of arm pain, weakness and loss of function.

The applicant was independently medically assessed at the request of his solicitor by
[3] ARD pp 4 & 12.
[4] ARD p 15.
Dr J G Bodel, orthopaedic surgeon, on 22 August 2019. Dr Bodel produced reports date 22 August 2019 (x2)[3] and 24 June 2020[4]. In his Impairment Assessment report dated 22 August 2019 Dr Bodel assessed the applicant as having sustained 5% whole person impairment (WPI) as a result of injury to the cervical spine to which he added 2% for interference with activities of daily living to give 7% WPI for the neck. Dr Bodel assessed 15% WPI in respect of injury to the left upper extremity and 3% for scarring resulting from the extensive surgery undergone by the appellant. The total WPI assessed by Dr Bodel was 23%.

On 15 May 2020 the appellant was independently medical assessed at the request of the insurer of the respondent, GIO, by Dr Anthony Smith.[5] The doctor expressed the opinion that Mr Macey had, in all probability, symptomatic cervical degenerative disease producing most of his current symptoms and also glenohumeral osteoarthritis. He said that it was more likely than not that the labral tear that was repaired predated the work accident, which could be producing symptoms of its own.
[5] Reply p 6.

On 8 July 2020, the appellant made a claim for permanent impairment compensation based on the assessment of Dr Bodel.[6]
[6] ARD p 117.
On 8 February 2021, GIO issued to the applicant a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the applicant’s claim for permanent impairment lump sum compensation for injury on 29 March 2015 [sic], specific to the cervical spine.[7] In the reasons for the decision in that notice, GIO referred to the substantive report of Dr Bodel dated 22 August 2019, and the failure of the doctor to record any history of injury to the cervical spine nor any consequential condition in the cervical spine as a result of the incident on or about 28 March 2015. Reference was also made to the supplementary report of Dr Bodel dated 22 August 2019. The author of the s 78 notice also referred to the clinical notes from Canning Street Medical Centre and the initial report of Dr Damiani dated 14 October 2015 in which there is no reference to the cervical spine.
[7] Reply p 3.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Did the applicant sustain injury to the cervical spine on or about 28 March 2015 when he sustained injury to the left shoulder, which is not disputed by the respondent?
(b) Did the applicant sustain a condition in the cervical spine consequent upon injury to the left shoulder on or about 28 March 2015?

PROCEDURE BEFORE THE COMMISION

The parties attended a conciliation/arbitration on 29 March 2021 conducted via telephone conference. Mr G Niven of counsel appeared for the applicant instructed by Mr J Watt. The applicant attended on a separate line. Ms N Compton of counsel appeared for the respondent instructed by Mr N Bennett of the GIO.
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 attachments, and
(b) Reply and attachments.

Oral evidence

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

SUBMISSIONS

The submissions of the parties are recorded in the Transcript (T) and will not be repeated in full. In summary they are as follows:

Applicant

The applicant bases his submissions on the opinion of Dr Bodel that he suffered a frank injury to his neck at the time he injured his left shoulder on or about 28 March 2015. In fact, in accordance with the QBE Notification of Injury dated 2 April 2015, the correct date of injury is 29 March 2015[8]. In that document the “Injury/Diagnosis” is recorded as:
[8] Reply p 49.
“Left shoulder injury
Slipped on concrete and used arm to brace fall”
This date is corroborated by the clinical note of the applicant’s attendance of Dr Reza Meschi on 30 March 2015[9] who recorded:
“pain in left shoulder from yesterday
no numbness in hand ,tingling in left hand
pain was very severe…pain stil sever…felt pop
happened during work” [sic]
Nothing turns on this discrepancy in dates. The respondent accepts liability for the left shoulder injury recorded by Dr Meschi in that clinical note.
[9] ARD p 81.
The applicant submits that Dr Bodel clearly states that as a result of a primary injury, he has experienced ongoing issues with his neck, contemporaneously reported. He points to the entry of 23 April 2015 in the clinical notes of Sapphire Coast Physiotherapy[10], where “sore through neck” is recorded, and subsequent entries dated 30 July 2015 and 6 August 2015[11] where complaints of headaches and “STR through neck and shoulder” are recorded. The applicant also relies on the first record of complaint of neck pain to Dr Sanoubar Keshavarzi in his clinical note dated 15 August 2016, “he has pain everywhere including neck.”[12]
[10] ARD p 84.
[11] ARD pp 87 & 88.
[12] ARD p 78.
The applicant relies upon the opinion of Dr Bodel expressed in his third report dated 24 June 2020 that he suffered further aggravation to his original neck injury as a consequence of the treatment protocol, directed to the left shoulder.

Respondent

The respondent opened its submissions with the well-known quote of Kirby J (as he then was) in Kooragang Cement Pty Ltd v Bates[13] in respect of the evidence required, assessed on a “commonsense evaluation of the causal chain”, to show that incapacity or death “results from” a work injury, and thus enable a court or tribunal (in that case the Compensation Court of NSW) to award compensation.
[13] (1994) 35 NSWLR 452 (Kooragang Cement v Bates).
The respondent then went on to address the issue of whether the applicant suffered a frank injury to his neck at the same time that he suffered the undisputed serious injury to his left shoulder. It notes that the first ‘contemporaneous’ report which addressed the neck was in the records of the physiotherapist, referred to above in the applicant’s submissions. The respondent submits that, while it may be that the applicant suffered pain in the area of the neck, the Commission would not be satisfied that he suffered an actual injury to the neck; any such pain was referred pain from the shoulder.
The respondent eventually submitted that, after an examination of the records of the treating practitioners including the physiotherapist, the general practitioner and the pain management specialist Dr Peter Georgius who the applicant consulted in March 2018 after his move to Queensland[14], there had been a break in the chain of causation between the injury suffered by the applicant in March 2015 and complaints of pain in his neck. In this regard the respondent refers to the incident described by the applicant at [60] of his statement dated 4 November 2020[15] when he experienced a flare up of pain in his left shoulder.
[14] ARD p 65.
[15] ARD P 23.
In respect of the applicant’s submission that he suffered a frank injury to his neck in March 2015, the respondent submits that the highest the evidence gets is a complaint of some sort of pain. The respondent submits that this is referred pain from the left shoulder injury. There is no evidence of any structural injury to the applicant’s neck in the early stages after the fall.
The respondent highlights the fact that Dr Bodel made an assessment of WPI in the neck in his supplementary report dated 22 August 2019 before he made a diagnosis of injury to the neck in his later report dated 22 June 2020 (emphasis added). The complaint of pain in the neck recorded by Dr Bodel is consistent with similar complaints recorded by the treating surgeon, Dr Damiani. However, that does not demonstrate that the applicant suffered a frank injury to his neck. Dr Bodel does not take a history of any such injury. The respondent submits that Dr Bodel, without a further consultation with the applicant, “…has turned around and made a specific diagnosis”[16] of injury to the neck from the complaints of neck pain recorded by him.
[16] T p 16.20.
The respondent relies upon the opinion of Dr Anthony Smith[17] who does not accept that the applicant sustained a frank injury to his neck, conceding at the same time that Dr Smith also is of the opinion that Mr Macey has not suffered an injury to his shoulder, liability for which has been admitted by the respondent.
[17] Reply p 6.
The respondent also relies upon the report of Dr Andrew Keller, occupational physician, who examined Mr Macey on 11 March 2020 and produced an Injury Management Consultant Report dated 16 March 2020[18]. Dr Keller notes the history of injury to the left shoulder provided by the applicant which does not include any complaint of injury to the neck at that time. Dr Keller’s report makes no reference to a neck condition.
[18] Reply p 12.
The respondent refers to the complaint by the applicant in respect of his neck pain in the clinical note of the treating physiotherapist dated 23 April 2015 following the injury to the left shoulder on 29 March 2015. This is the first report of neck pain. The respondent examines the further clinical notes of the physiotherapist and notes that there is a record of treatment to the neck recorded on 27 August 2015.This is submitted to be clearly treatment in relation to the shoulder zone. Further records of treatment by the physiotherapist to the shoulder area are not indicative of a frank injury to the left shoulder. The respondent submits that it is not until 15 August 2016 that there is a record of complaint of pain in the neck in the notes of the treating general practitioner, Dr Keshavarzi, (“…has had pain everywhere including neck…”).
The respondent then deals with the condition claimed by the applicant in his left shoulder consequent upon the injury to the left shoulder, in the context of the three lots of surgery on the left shoulder. The respondent submits that any such condition was not a consequence of the three surgical interventions on 13 November 2015, 13 September 2016 or 29 August 2017. In this regard, attention is drawn to the opinion of Dr Bodel that the applicant’s neck condition has been further aggravated by the extensive surgical undertakings in the region of the left shoulder, ultimately leading to the latissimus dorsi transfer surgery.
The respondent submits that it is not until more recent times that the applicant has been complaining about problems in his neck, and not in association with the three occasions on which he was subject to surgery. Reference is made to the applicant’s statement evidence at [56]-[58] where complaints of neck pain in or about March 2019 are recorded.
The respondent submits that the physiological treatment he received following the surgery in November 2015 is not indicative of a condition in the neck resulting from that surgery. Similarly, leading up to and following the September 2016 surgery, references in the physiotherapist’s clinical notes to neck pain are not indicative of a condition in the neck consequent upon surgery. In June 2016, the applicant was still working in the dairy milking cows for the respondent, reference to which is made in the clinical notes. That could have constituted a further aggravation of the applicant’s condition. This situation with work in the dairy continued on into the early part of 2017 when the applicant was still working for the respondent. In this regard the respondent notes the entry of 28 February 2017[19] where shooting pain up the back of shoulder and up into the neck is recorded. This is the first report of neck pain following the second surgery, according to the respondent.
[19] ARD p 107.
The applicant refers to the clinical notes of the treating general practitioner, Dr Keshavarzi, following the second surgery on 13 September 2016. Whilst there are reports of limited range of motion in the neck, there are no reports of injury to the neck.
Similarly, following the third surgery on 29 August 2017, there were no complaints recorded of pain in the neck at the consultations with Dr Keshavarzi on 24 October 2017 and 17 November 2017 [20], notwithstanding the prescription of significant pain medication on 17 November 2017.
[20] ARD p 72.
The respondent then examines the records of the Morayfield Family Doctors, whom the applicant consulted following his move to Queensland in late 2017[21]. These cover the period from 27 December 2017 until 27 March 2018. The respondent submits that these show that, whilst an examination of the neck is recorded, there are no complaints of pain therein. The diagnosis in February 2018 is of the shoulder injury, and it is not until March 2018 that there is any complaint of neck pain.[22] The respondent submits that the complaint of neck pain recorded on 20 March 2018 as coming on 10 days previously is indicative of some further intervening factor, and not as a result of the surgery that took place in August 2017.
[21] ARD p 109.
[22] ARD p 112.
The respondent also notes the lack of further clinical notes in evidence beyond March 2018 in the context of the applicant’s complaint at [41]-[42] in his statement dated 4 November 2020 that in late February 2018 his neck symptoms were getting worse, and at [60], that he experienced a flare up of symptoms in his left shoulder. The absence of records from treating practitioners from March 2018 “…speak loudly to potentially an ultimate third party situation.”[23] As I understand the respondent’s submission on this issue it is that, without going so far as to ask the Commission to draw a Jones v Dunkel inference from the lack of clinical records from March 2018 onwards, there is no independent evidence to corroborate the applicant’s evidence that he suffered a significant aggravation of his condition or increase in symptoms in about February 2019 as he alleges at [50] of his statement.[24]
[23] T p 39.05.
[24] ARD p 22 and T p 38.10.
The respondent refers to the most recent WorkCover certificate of capacity issued 4 August 2020 (showing dated of injury incorrectly as 29 March 2014 rather than 29 March 2015)[25], as making no reference to a neck injury.
[25] Reply p 17.

The respondent also refers to the report of the neurologist, Dr Ram Malhotra, dated 25 August 2016, recording the results of nerve conduction studies, in which there is no report of neck injury.[26] The respondent submits that, having regard to the very significant injury that the applicant suffered to his left shoulder, if there was an injury to the neck it would have been referred to.
[26] Reply p 40.
In summary, the respondent submits that there is no evidence that would comfortably satisfy the Commission that the applicant suffered a frank injury to the neck on 29 March 2015, a condition in the neck consequent upon injury to the left shoulder on that day, or consequent upon the three surgical interventions to the left shoulder.

Applicant in response

The applicant draws attention to the fact that Dr Smith in his report dated 15 February 2020, does acknowledge that he has issues with his neck, corroborated by what he says at [62] in his statement about a referral to a Dr Chris Blinken, orthopaedic surgeon, on or about 20 May 2020. Dr Blinken referred Mr Macey for an MRI scan on the neck. This scan did not take place because of the failure of the respondent’s insurer to fund this investigation.
The applicant emphasises the clarity with which Dr Bodel finds injury to the neck when he injured his left shoulder, and the complaint of neck pain to the physiotherapist within one month of the left shoulder injury. The applicant submits that, on a common sense evaluation of the evidence throughout the period in which he was treated for his shoulder injury, there should be findings of injury to the neck, and a condition in the neck consequent upon the shoulder injury and surgical treatment therefor. Both the injury to and the condition in the neck should be included in the referral of the matter to a Medical Assessor for assessment of WPI along with WPI to be assessed as a result of injury to the left shoulder.

FINDINGS AND REASONS

Injury to, condition in, the cervical spine

In Kooragang Cement v Bates Kirby J stated at 463-464:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase `results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death `results from' a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death `results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death `resulted from' the work injury which is impugned.”

The relevant entries in the clinical notes of the treating physiotherapist and general practitioners of complaints of pain in the neck following the significant injury that the applicant suffered to his left shoulder on 29 March 2015 are referred to above in the background information and summaries of the parties’ submissions. The first reference to neck pain is in the complaint recorded by the physiotherapist on 23 April 2015, “…sore through neck.” The applicant continued to receive regular physiotherapy treatment throughout 2015 and 2016, and in early 2017, from Sapphire Coast Physiotherapy. The last treatment was on 6 March 2017. On 30 July 2015, the physiotherapist records daily headaches and “STR through neck and shoulders” (“STR” being a term not clarified in the evidence). This term is again recorded on 27 August 2015.
The first reference to neck pain in the general practitioner’s clinical notes is on 15 August 2016 to Dr Keshavarzi (“…he has pain everywhere including neck…”). The doctor also records on that day “did not have any imaging done on the spine” and ordered an x-ray of the cervical spine which was carried out on 18 October 2016[27]. The report is as follows:
“Clinical Note: 37 year old male, fell at work twice, head spins and headaches and reduced lateral flexion of the neck.
Findings: The overall bony alignment is normal.
No fracture is seen.
[27] Reply p 39.
There is minor loss of disc height and small peripheral osteophytes at C6/7. The bony neural foramlna remain patent at all levels. The facet joints appear clear at all levels. The atlanto-axial articulation appears intact.”
In his clinical notes post-dating that x-ray, the first of which is dated 24 October 2016[28], Dr Keshavarzi does not appear to comment on the x-ray result.
[28] ARD p 77.
The only other radiological investigation of the cervical spine appears from the report of Dr Anthony Smith dated 15 May 2020. The report of the x-ray itself is not in evidence. Dr Smith notes in respect thereof:
“His general practitioner was a Dr Crosland, who ordered an x-ray of the neck, which was undertaken on 11 February 2020. This demonstrated degenerative narrowing of the discs at C5-6 and C6-7, with posterior osteophyte formation at C6-7 and neurocentral joint osteoarthritis at C3-4. The left shoulder was also x-rayed, which demonstrated AC joint osteoarthritis and, in my opinion, glenohumeral joint osteoarthritis.”
Dr Smith’s opinion is that the applicant:
“This man has, in all probability, symptomatic cervical degenerative disease, producing most of his current symptoms. He also has, in my opinion, glenohumeral osteoarthritis and it is more likely than not that the labral tear that has been repaired predates the work accident (please see excerpts of Park et al and Schwartzberg et al at the end of this report).”

The respondent concedes that the opinion of Dr Smith that the labral tear that has been repaired predates the applicant’s work accident does not accord with the respondent’s acceptance of liability for the left shoulder injury. This acceptance of liability appears to be consistent with the report of the MRI scan of Mr Macey’s left shoulder dated 8 April 2015 and reported on by Dr Howard Galloway[29]. The doctor’s findings in respect of the scan of the shoulder were consistent with anteroinferior dislocation with an acute Hill-Sach compression fracture at the posterosuperior aspect of the humeral head. He concludes his report with findings consistent with recent episode of anteroinferior dislocation with a Hill-Sachs compression fracture at the posteroinferior aspect of the humeral head and separation of the anteroinferior aspect of the glenoid labrum with a small bony avulsion fragment.
[29] ARD p 27.
It is apparent from the report of Dr Smith that he had not seen the MRI scan of 8 April 2015 when he prepared his report. In that circumstance I find it hard to accept Dr Smith’s observation that the applicant was embellishing his condition to some extent, although that may have been the situation on the day of examination or at least, Dr Smith’s perception of the applicant’s presentation.
When Dr Keller examined the applicant on 11 March 2020 he found him pleasant and cooperative throughout the interview that he attended with his wife. He found that Mr Macey had suffered a traction injury to the left shoulder causing dislocation and a nerve injury. He said that he had not recovered despite tendon reconstruction and a nerve release operation. He found evidence for left arm wasting, restriction of motion and altered sensation.[30] The finding of left arm wasting contrasts with Dr Smith’s finding that there was an absence of wasting in the left upper limb.
[30] Reply p 15.
When Dr Bodel examined Mr Macey on 22 August 2019 he recorded a history of the incident of 28 [sic, 29] March 2015 and subsequent treatment of the injury sustained on that day, which accords with what is recorded in the reports of Dr Smith and Dr Keller. Under “CURRENT COMPLAINTS” Dr Bodel did not record any complaint in respect of the neck. He did find on examination, tenderness in trapezius muscles at the base of the neck on the left side and guarding in that area. He also found a reduced range of neck flexion, extension and rotation in all directions, most restricted on extension to the right. He said that the restricted neck movement is a complication of the serious left shoulder injury.
In his diagnosis of the applicant’s neck injury in his report dated 24 June 2020 Dr Bodel said:
“The specific diagnosis for the neck pain is a soft tissue musculoligamentous strain to the neck. This has been caused by the event that occurred on 28 March 2015 and has been further aggravated by the extensive surgical undertakings in the region of the left shoulder ultimately leading to the latissimus dorsi transfer.
I am satisfied that the nature of the original injury could have caused a soft tissue
musculoligamentous injury to the neck itself and that the further aggravation has occurred as a consequence of the treatment protocol directed to the left shoulder. He has had extensive surgical interventions as well as periods of immobilisation and physiotherapy which has caused aggravation to that side of the neck.”

When asked his opinion concerning prognosis of the neck injury, Dr Bodel said in that report:
“This gentleman’s prognosis for the neck is better than the shoulder. It is still guarded because the two areas of the body (neck and left shoulder and arm) do not work independent of each other and the very poor level of function that is still present in the region of the left arm, particularly in the area of the left shoulder, will continue to cause aggravation, acceleration, exacerbation and deterioration to the disease process which has now developed in the cervical spine causing the
neck injury.”

When asked for the aetiology of the neck injury (and related impairment), the doctor said:

“As I have indicated above, in my view the neck injury is primarily a frank injury occurring at the time of the original traumatic event. The fact that there is significant ongoing disability with the left upper extremity involving the left shoulder in particular and the various surgical procedures, does render the neck vulnerable to further aggravation over time that is occurring.”

In Murray v Shillingsworth[31] the New South Wales Court of Appeal (Einstein J, Hodgson and Santow JJA agreeing) at [30] addressed the issue of the legal requirements for proof on the balance of probabilities as follows:
“30 These requirements were examined in Seltsam Pty Ltd v. McGuiness [2000] NSWCA 29 where Spigelman CJ put the matter as follows:
i. ‘There are cases in which medical science cannot identify the biological or pathological mechanisms by which disease develops. In some cases medical science cannot determine the existence of a causal relationship. Such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for purposes of attributing legal responsibility...In circumstances where the aetiology of a disease is uncertain, or subject to significant scientific dispute, the courts are not thereby disenabled for making decisions as to causation on the balance of probabilities.’ [at 93 – 94]
ii. ‘When assessing expert evidence on causation, the legal concept of causation requires the court to approach the matter in a distinctively different manner from that which may be appropriate in either philosophy or science, including the science of epidemiology. ‘ [at 142]
iii. ‘The commonsense approach to causation at common law is quite different from a scientist’s approach to causation...an inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.’ [at 143]”
[31] [2006] NSWCA 367.

In this case, medical science, in the form of the opinion of Dr Bodel, has addressed causation of the injury claimed by the applicant in his cervical spine and the condition therein claimed to have arisen in consequence of the significant left shoulder injury on 29 March 2015. Dr Bodel is of the opinion that the nature of the original injury could have caused a soft tissue musculoligamentous injury to the neck itself, and that further aggravation has occurred as a consequence of the treatment protocol directed to the left shoulder. He gives an explanation that the significant ongoing disability with the left upper extremity involving the left shoulder in particular and the various surgical procedures, does render the neck vulnerable to further aggravation over time that is occurring.
It is not in issue that Mr Macey continues to suffer significant ongoing disability with his left shoulder, notwithstanding the three surgical interventions he has undergone. When the opinion of Dr Bodel is considered along with the evidence of the treating practitioners I have summarised above, I think that there is a fair climate for the acceptance of his opinion. The applicant complained to the physiotherapist of pain in his neck just over three weeks following his left shoulder injury. That was a significant traumatic incident involving the left shoulder, sufficient to dislocate the shoulder. There was subsequent complaint of neck pain to the physiotherapist who Mr Macey was seeing on a regular basis. Admittedly, the applicant did not complain to his general practitioner of neck pain until August 2016, at which time an x-ray was requested, which did not appear to show anything of recorded comment by Dr Keshavarzi. Nevertheless, by the time of the further radiological investigation of the cervical spine on 11 February 2020, degenerative narrowing of the discs at C5-6 and C6-7, with posterior osteophyte formation at C6-7 and neurocentral joint osteoarthritis at C3-4 was shown. This is consistent with the opinion of Dr Bodel referred to in [51]-[53] above.
I therefore accept Dr Bodel’s opinion in preference to that of Dr Smith, who found that Mr Macey does have symptomatic cervical degenerative disease but does not relate it to the injury to the left shoulder on 29 March 2015.
I do not accept that any adverse inference should be drawn from the absence of clinical notes post-dating March 2018. Notwithstanding that the respondent did not submit that a Jones v Dunkel inference should be drawn from the alleged failure of the applicant to tender evidence of his treatment after that date, it was open to the respondent to request the production of such evidence. At the telephone conference on 23 February 2021, neither the applicant nor the respondent sought a direction for production of any further medical evidence on which they sought to rely and indicated that the matter was to proceed on the evidence attached to the ARD and the Reply. At that stage, the respondent had access to the applicant’s statement dated 4 November 2020 attached to the ARD. In my view, there is no reason not to accept the evidence of Mr Macey as to the worsening of his symptoms from February 2019, caused by the work trial in which he engaged in February 2019. As the applicant commenced that work trial, he experienced a worsening of his symptoms.
I accept that the applicant suffered a soft tissue to his cervical spine on 29 March 2015 when he injured his left shoulder. I also accept that Mr Macey suffered further aggravation of the condition in his left shoulder resulting from the extensive surgical undertakings in the region of his left shoulder, ultimately leading to the latissimus dorsi transfer carried out on 29 August 2017.

Referral of the matter to a Medical Assessor

The matter will be referred to the President of the Commission for referral to a Medical Assessor for assessment of WPI as a result of:
(a) injury to the left upper extremity (shoulder) on 29 March 2015, and
(b) injury to the cervical spine on 29 March 2015 and condition in the cervical spins consequent upon injury to the left upper extremity (shoulder) on 29 March 2015.

The documents to be referred to the Medical Assessor are:
(a)    the ARD and attachments;
(b)    Reply and attachments, and
(c)    this Certificate of Determination and Statement of Reasons.

SUMMARY

The applicant sustained injury to the cervical spine on 29 March 2015.
The applicant suffered a condition in his cervical spine consequent upon injury to the left upper extremity (shoulder) on 29 March 2015.
The matter is remitted to the President for referral to a Medical Assessor for assessment of WPI as a result of:
(a)    injury to the left upper extremity (shoulder) on 29 March 2015;
(b)    injury to the cervical spine on 29 March 2015, and
(c)    condition in the cervical spine consequent upon injury to the left upper extremity (shoulder) on 29 March 2015.
The documents to be referred to the Medical Assessor are :
(a)    ARD and attachments;
(b)    Reply and attachments, and
(c)    this Certificate of Determination and Statement of Reasons.

Brett Batchelor
MEMBER

13 April 2021