McMahon v DPG Services Pty Limited trading as Domain Principal Group

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	McMahon v DPG Services Pty Limited trading as Domain Principal Group [2023] NSWPIC 255
APPLICANT:	Rosalia McMahon
RESPONDENT:	DPG Services Pty Ltd trading as Domain Principal Group
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	1 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits for balance of 130 weeks and past medical expenses; liability accepted for injury to cervical spine; liability for injury to lumbar spine and right upper extremity disputed; consideration of Wollongong Nursing Home Pty Ltd v Dewar; Held – the applicant sustained injury to her lumbar spine and right upper extremity, as well as to her cervical spine; the applicant had no current work capacity during the period in dispute; award for the applicant of weekly benefits; and medical expenses incurred for injury to her cervical spine, right upper extremity, and lumbar spine.
determinations made:	1. There is an award for the applicant pursuant to s 37 of the Workers Compensation Act 1987 as follows: (a) $617.22 per week from 29 July 2014 to 16 August 2014, and (b) $461.86 per week from 17 August 2014 to 23 August 2016. 2. The respondent is to pay, pursuant to s 60 of the Workers Compensation Act 1987, the applicant’s reasonably incurred medical expenses in respect of injury to her cervical spine, right upper extremity and lumbar spine. 3. The parties have liberty to apply.

STATEMENT OF REASONS

BACKGROUND

The applicant, Rosalia McMahon (Ms McMahon) was employed by the respondent, DPG Services Pty Ltd trading as Domain Principal Group (Opal Florence Towers) as an assistant in nursing (AIN).
Ms McMahon sustained an injury to her neck on 17 August 2013. She also claims to have sustained injury to her back and right shoulder.
The respondent completed an undated Notification of Injury Form to its insurer, GIO. It advised of an injury notified by the applicant on 19 August 2013. The applicant was supporting a resident when she sustained a “back strain”. She had returned to selected duties on 21 August 2013.
On 16 June 2014, GIO issued the applicant with a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed that the applicant had sustained injury to her right shoulder on 17 August 2013, and that her employment had been a substantial contributing factor to such injury. It therefore disputed liability for weekly benefits or medical treatment as a result of injury to her right shoulder. It also disputed liability for ongoing treatment to her cervical spine.
On 7 July 2014, GIO issued the applicant with a further notice pursuant to s 74 of the 1998 Act. This notice disputed liability for injury to both her right shoulder and cervical spine, and that employment was a substantial contributing factor to either injury.
The notice included reference to the effects of the injury to the applicant’s cervical spine having ceased, so the dispute as to “injury” and “substantial contributing factor” with respect to her cervical spine was obviously notified in error.
The applicant’s employment was terminated on 18 July 2014, as she was unable to fulfil the inherent requirements of her position.
On 8 December 2015, GIO issued the applicant with a further notice pursuant to s 74 of the 1998 Act.
GIO disputed that the applicant was wholly or partially incapacitated as a result of injury to her right shoulder and back; that in the alternative, employment was the main contributing factor or a substantial contributing factor to any injury to her right shoulder or back; that any incapacity she suffered was related to any right shoulder or back injury sustained in the course of her employment; and that treatment expenses were reasonably necessary as a result of injury sustained in the course of her employment.
GIO further disputed that the applicant was wholly or partially incapacitated as a result of injury to her cervical spine; that any incapacity she suffered was related to any injury sustained in the course of her employment; and that treatment expenses were reasonably necessary as a result of injury sustained in the course of employment.
On 16 December 2015, GIO issued the applicant with a further notice pursuant to s 74 of the 1998 Act. The notice was in similar terms to that dated 8 December 2015.
On 18 June 2020, GIO issued the applicant with a notice pursuant to s 287A of the 1998 Act, having been asked to review its decision/s.
GIO maintained that the applicant was not suffering from an “ongoing injury” to her cervical spine; that she was not suffering from any ongoing injury in accordance with s 9A [sic] of the Workers Compensation Act 1987 (the 1987 Act) to her cervical spine and right shoulder; and she was not entitled to weekly compensation or the costs of medical treatment in relation to her cervical spine and right shoulder condition.
On 30 November 2021, GIO issued the applicant with a notice pursuant to s 78 of the 1998 Act.
GIO disputed the applicant’s claim for permanent impairment compensation. Her injuries were referred to as cervical spine “(previously accepted, declined on recovery)”; right shoulder/arm and lumbar spine “(disputed)”.
GIO maintained that the applicant’s accepted physical injury to her cervical spine had not resulted in more than 10% permanent impairment, as required by s 66(1) of the 1987 Act.
The applicant lodged an Application to Resolve a Dispute (the Application) on 28 November 2022. The injury was pleaded as both a personal injury on 17 August 2013, and the aggravation, acceleration, exacerbation, or deterioration of a disease, deemed to have occurred on 17 August 2013.
The applicant claimed that on 17 August 2013, she was assisting an agitated resident with dementia to shower. He fell from a shower chair, and she caught him to prevent him from falling to the shower floor. She sustained an injury to her neck, which caused and/or aggravated or accelerated degenerative disc disease of the cervical spine, injury to her right shoulder, including the right rotator cuff, injury to her right arm, and injury to her back.
The applicant claimed weekly benefits from 17 August 2013 to 17 August 2018; past medical expenses of $7,303.70; and $20,350 pursuant to s 66 of the 1987 Act with respect to 14% whole person impairment (WPI) as a result of injury to her cervical spine, right upper extremity, and lumbar spine.
The respondent lodged its Reply on 22 December 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained injury on 17 August 2013 to her right shoulder/arm and/or lumbar spine;
(b)    whether the applicant has any incapacity for work; and if so, the extent of the incapacity, and
(c)    whether the applicant is entitled to payment of the medical expenses claimed.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for preliminary conference before me on 23 January 2023. Mr McMahon appeared for the applicant; and Ms Blake appeared for the respondent. The applicant and Ms Leneve from GIO attended.
The applicant discontinued her claim for WPI. The Application was amended to claim weekly benefits from 23 April 2014 to 17 August 2018, weekly benefits having been paid until 22 April 2014.
The matter was listed for conciliation/arbitration hearing on 21 February 2023, on the Teams platform. Mr Perry of counsel, instructed by Mr Velleley, appeared for the applicant; and Mr Grimes of counsel, instructed by Ms Blake, appeared for the respondent. The applicant and Ms Leneve attended.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were as asserted by the respondent in its wages schedule.
The applicant confirmed that she made no claim for weekly benefits beyond the period of 130 weeks.
The respondent objected to some of the evidence served on it by the applicant on 23 January 2023.
Due to the time taken in conciliation and preliminary matters, it was not possible to conclude the matter, and directions were made for the provision of written submissions, including submissions from the respondent with respect to the admission of the applicant’s late evidence.
The respondent’s solicitors advised the Commission by email on 16 May 2023 that it withdrew its objection to the applicant’s late evidence on the basis that the applicant conceded its PIAWE; it had referred in its submissions to the clinical notes; and the applicant’s statement did not take it by surprise.
The parties were advised that at the conclusion of the time provided for submissions, the matter would be determined “on the papers”.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    respondent’s wages schedule dated 7 February 2023;
(d)    applicant’s wages schedule dated 8 February, and
(e)    Application to Admit Late Documents dated 31 March 2023 and attached documents, filed by the applicant. Copies of the documents were provided during the conciliation/arbitration hearing; and a direction was made that they be lodged as an attachment to an Application to Admit Late Documents on or before 28 February 2023.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Rosalia McMahon

The applicant has provided a handwritten account of the injury and subsequent events. It is not dated, but the last entry is dated 4 July 2014.
Ms McMahon stated that on 17 August 2013, she was showering a resident who became agitated. He was sitting on the edge of the shower chair leaning forward. He could have tipped over and fallen forward had she let him go.
She pressed the call buzzer with her other hand. She waited for approximately five minutes, then pressed the other call buzzer, with no response. She then pressed the emergency [assumed to be buzzer or button], trying to reach it while supporting the resident with her other hand. She was holding him for quite some time. She could feel her neck/back were aching.
She reported the incident to clinical manager (CM) Lynn Plumb, who told her to seek medical attention. Her general practitioner (GP) was not available, so she saw Dr Timofticiuc and got a medical certificate.
The CM said she had the wrong certificate. She did not understand the WorkCover certificate she was talking about, so she gave the CM permission to talk to the doctor. The CM convinced the doctor to put her on light duties.
The CM made her work on days she requested the doctor to have a day off because she was in pain. The CM told the doctor she could work for 6.5 hours a day for 5 days.
She asked the CM to guide her to fill out the Riskman (incident) in the computer, but she insisted on doing it and said, “You have already wasted four whole days off. Go home and have a good rest.”
On 26 August 2013, she consulted her GP, Dr Gerald Hindman, who referred her to Anne Warner, physiotherapist, and prescribed pain management medication. She worked in the dementia ward on light duties for six hours a day, five days a week.
On 30 August 2013, Dr Hindman reduced her hours to five per day, five days a week.
On 3 October 2013, Rebecca Payne, rehabilitation coordinator, asked her to bring to Dr Hindman a suitable duties form requesting increased working hours to average 33.5 hours per week.
Dr Hindman could not sign off on the increased hours “as duties with current symptoms. Muscle pain, continuing pain and stiffness.” Capacity for employment was five hours a day five days a week, on light duties.
On 28 October 2013, her hours of work were increased to six hours a day, five days a week, on light duties. She was having ongoing physiotherapy/treatment.
On 29 October 2013, Andrew Pierron, facility manager, asked physiotherapist Victoria Povis to review her. Ms Povis recommended combining acupuncture with physiotherapy.
On 27 November 2013, Dr Hindman certified her with capacity to work for six hours per day, five days a week.
On 13 December 2013, a trial of increased hours was requested by her rehabilitation coordinator, for 6.5 hours a day, five days a week, with a change to a less dependent work environment/less physically demanding patients.
On 30 December 2013, she saw Dr Hindman with Lynn Plumb, to request increased hours and duties to 33.5 hours per week. There was to be a trial of 6.5 hours a day for four days a week, and 7.5 hours for one day a week, and change to a less dependent environment/less physically demanding patients. She was to have regular physiotherapy and treatment.
On 13 January 2014, she saw Dr Hindman. There was no improvement in her capacity for employment. She was on light duties as a supernumerary with restrictions.
On 27 February 2014, her capacity for employment was for 33.5 hours per week, as a supernumerary on light duties. She was to continue physiotherapy for four weeks. She had ongoing pain and palpable muscle spasm. “Gradual improvement is apparent”.
On 5 March 2014, she saw Dr Hindman with the CM. Her capacity was fit for pre-injury duties from 6 March 2014 to 18 April 2014, but she required treatment/physiotherapy. “Ongoing pain and palpable muscle spasm”.
She returned to pre-injury duties on 7, 8 and 9 March 2014. This included showering and ADLs (activities of daily living) of residents, with caution with heavy clients. She worked with pain, as the doctor said pain would be there, but she needed to keep moving, so she thought her body was just getting used to the workload.
On 9 March 2014, her neck, back and shoulder were “terribly aching”. It was too painful to bear, and she could hardly lift her right arm.
On 10 March 2014, she notified Andrew (Pierron) that she was in so much pain in the neck, back and shoulder, and had a headache. She had made an emergency appointment with her doctor. He said he had to get “Yolanda”, the care coordinator, to go with her.
She saw Dr Hindman, accompanied by Yolanda, who brought a suitable duties form. Her capacity for employment from 10 March 2014 to 18 March 2014 was 33.5 hours per week, with continuing caution with heavy clients. She had ongoing pain and palpable muscle spasm.
On a date in March 2014 (the date may not be discerned from the copy of the document), Dr Hindman gave her a referral for an ultrasound of her right shoulder.
On 14 March 2014, she saw Dr Hindman, on her last day of work before going overseas, with the results of the ultrasound. She was referred for ultrasound guided injection. She could not get GIO approval, and no doctor was available until the following Monday, so she booked it for 14 April 2014, when she came back.
She left her medical certificate and ultrasound result under Andrew’s door, as the office was closed on the weekend.
She had the injection on 14 April 2014.
On 15 April 2014, Dr Hindman gave her from 15 April 2014 to 21 April 2014 off work. She had capacity to work from 22 April 2014 to 30 April 2014 as a supernumerary, with continuing caution with heavy clients.
On 30 April 2014, she was certified with capacity for 33.5 hours a week, with continuing caution with heavy and fall risk clients. She was to avoid heavy linen and trolleys. The care coordinator/CM assured them that common sense would be used regarding her normal duties.
On 23 June 2014, the applicant was to trial increased hours and a change of duties to a less dependent work environment/physically demanding patients.
On 4 July 2014, the applicant saw Dr Hindman with Tony de Ambrosis, rehabilitation consultant, to talk about graduation/arrangement/plan for pre-injury duties, but Dr Hindman would not allow pre-injury duties. Tony suggested referral to a psychologist regarding chronic pain management. She had “major stress re: ongoing pain”.
On 21 August 2013, the applicant wrote to Mr Pierron.
She described the injury on 17 August 2013 in similar terms to those above. She could feel her back aching trying to hold the resident with an awkward position. She told “Sue” that her back was painful after holding him for so long. She had also told “Mandy”, duty-in-charge, that her back was painful from holding the resident, “but she did not seem to care”.
On 20 February 2017, the applicant made a statement. Much of the statement repeated the evidence she gave in the handwritten document.
She described the circumstances of the injury on 17 August 2013. She was holding/supporting the resident for quite some time and could feel her neck/back aching. She described her injury as back/neck strain.
She had been assigned to work as a diversional therapy [sic] without prior consent. This was outside her “work of scope and before my doctor’s direction of suitable duties.” She had been working since her injury with restrictions of pulling/pushing, lifting heavy trolleys and clients.
On 5 March 2014, Andrew Pierron arranged for her to get her doctor to increase her hours of work and duties, and told her to go with the CM. She felt she had been pressured to see the doctor with the CM and convince him to increase her work hours and duties.
She had had an ultrasound on 12 March 2014, which showed bursitis in her right shoulder. Andrew pressured her to use her annual leave, so she went overseas from 17 March 2014 to 13 April 2014.
After Easter 2014 she continued to work, “as Andrew say[s] ‘a light duties’”, which included showering, making beds, feeding, assisting residents with ADLs, attending their hygiene/ needs, documentation “and etc. (most of an AIN duties)” for 33.5 hours a week, with the restriction of continuing caution with heavy clients.
She believed she had been discriminated “my (disability) restricted duties with heavy lifting/pushing with my right shoulder and in some ways.”
At the time of her dismissal/beforehand, the respondent required a diversional therapist (DT). She asked for a job as a DT but “he” (assumed to be Mr Pierron) refused to give it to her because she could not push a client in a wheelchair. The AINs had good teamwork with the DT when it came to taking residents to their activities.
The facility required a physio-aide, but Andrew rejected her application. He said under her circumstances, he could not employ her, and employed one of the AIN staff.
The applicant made a further statement dated 8 March 2017.
Around 17 August 2013, she suffered serious injuries to her neck, right shoulder, right arm, and back. She tried to support a client in an awkward position for a period exceeding 10 to 15 minutes.
Throughout the day, she had increasing pain in her neck, right shoulder, right arm and back, and headaches.
The insurer had rejected her claim and she had been unable to afford a lot of the treatment she needed. She was unable to earn an income due to her injuries.
She had conditions that included depressed mood; pain in her right shoulder, right arm, back, and headaches in the right side of her head; pins and needles down her right arm and hand; numbness and pain in her arms and hands; difficulty lifting, carrying, and pushing; difficulty with household tasks; stiff neck, muscle spasms and shooting pain in her back; muscle stiffness; and continuous pains and aches.
The applicant’s next statement is dated 14 February 2018.
She had been unable to find alternative employment. She could not do any manual handling job due to pain in her right shoulder, neck, and back disc bulge. This also affected her when lifting, carrying, pushing, twisting, and sitting and standing for long periods. Her back and neck hurt when looking up, down, left, and especially right.

She did not have the qualifications or experience to work in an office or administrative job. She had enrolled in and continued to attend a business administration course at TAFE, to gain a qualification for three hours a week in a future non-manual handling job, but the course was a struggle.
One to 1.5 hours sitting in an ergonomic office chair caused pain and stiff neck, and her back ached, “following headaches”. As a result, she found it hard to concentrate. It took time to finish the tasks she was required to do. She struggled in writing and typing continuously, as her right hand got numbness/pins and needles. She was constantly stopping, and just passed the accuracy test.
She is right-handed. Her right shoulder was painful when she raised her arm/hand above her head and sideways. Her right shoulder, neck and back hurt when lifting, carrying, bending, twisting, pulling, and pushing with weight/strength and/or force. She had lost strength in her right shoulder and had limited capacity to do things.
Her neck ached and was stiff, followed by a terrible headache on the right side. The pain travelled down her back, around her right shoulder blade, her right shoulder, and her right arm/hand got pins and needles and numbness. She got painful back spasms, especially at night. She could only drive a short distance.
Her other previous job involved activities that she was still capable of performing, such as welcoming customers; taking food orders; processing transactions; serving food and drinks; resetting tables; collecting plates one or two at a time; making beverages; wiping cutlery; and re-stocking light products.
Her other previous job involved activities she could no longer perform, such as AIN duties; loading and unloading dish racks; carrying a stack of plates; pushing the hot food trolley; loading and unloading food into the trolley and bain-marie; mopping the floor; dishwashing; and putting away plates and cups.
She could not do all the duties involved in food production, as they involve manual handling in a fast-paced environment and repetitive movement. She could not perform food packaging, quality control, labelling and stacking boxes, or cleaning workspaces. Production duties always included heavy lifting, carrying, pushing, pulling, bending, twisting, and long periods of standing.
She could not do the duties of a room attendant, as she could not clean or dust, vacuum or mop, change bed linens, scrub bathrooms and toilets, and empty bins. The duties included heavy lifting, carrying, pushing, pulling, bending and twisting, and “constantly on your feet.” She could not push the linen/towel trolley. The work is fast-paced and “all manual handling” activities.
Any movement such as lifting, carrying, bending, pulling, and pushing with weight or strength/force, caused her right shoulder/arm, neck and back to hurt/ache/pain. When the pain in her neck triggered, it travelled to the right side of her head. She then found it hard to concentrate.
The applicant’s final statement is dated 23 January 2023.
On 17 August 2013, she was showering an elderly resident, who was seated in a shower chair. He became agitated and started to slip from the chair. She grabbed him with both hands and attempted to pull him back onto the chair.
She took his full weight, and as she pulled him back onto the chair, she extended her neck upwards, straining it. She managed to lift him onto the edge of the chair. She held him there with her left arm and extended her right arm behind her to try and press the emergency button, while yelling for help.
She held the resident for around 15 minutes, straining her neck and right arm and shoulders in a very awkward position. As she did this, she felt pain in her neck, right shoulder and mid to upper back across the shoulder blade region.
While she also strained her lower back, it was her neck, right shoulder and mid to upper back that bore the brunt and were the cause of her ongoing symptoms.
Immediately prior to her injury, she had another job with Twin Towers Services Club as a waitress on weekends. She earned $9,480 gross for the financial year ended 30 June 2013. She did not work there after she was injured.
She experienced numbness and pins and needles in her right arm down to her fingertips, neck pain, right shoulder pain, and pain in the mid to upper back across the shoulder blade area. She had regular headaches. Her neurosurgeon, Dr Wayne Ng, had placed her on the Gold Coast University Hospital’s (GCUH) waiting list for neck surgery.
She had not worked since her employment with the respondent was terminated. She had been in receipt of Centrelink benefits since 6 August 2014. She could not work because of the ongoing symptoms due to the injury on 17 August 2013.

Termination of employment

On 21 July 2014, the respondent wrote to the applicant. The letter is signed by Ms Heather Napier, national work, health and safety manager.
The respondent referred to meetings with Ms McMahon on 2 July 2014 and 8 July 2014 regarding her ongoing injury and partial incapacity for work, and whether there was a likelihood of her returning to her pre-injury duties.
The applicant had been providing certificates for restricted duties, which she had been performing for 33.5 hours per week. On 8 July 2014, GIO notified her and the respondent that her claim had ceased as “the medical opinion” was that her workplace injury had resolved.
The purpose of the meetings was to discuss the applicant’s capacity to resume her pre-injury duties. However, she advised Andrew and Ms Napier that she was unable to return to her full pre-injury duties due to her ongoing injury, and therefore understood that her position would be terminated, as she was unable to fulfil the inherent requirements of her substantial [sic: substantive] position.
The applicant was advised that her employment would be terminated, effective 18 July 2014.
The reason for termination of the applicant’s employment was that she continued to be unable to fulfil the inherent requirements of her contracted position at Opal Florence Towers.

Medical evidence

Complete Health Medical Centre Pty Ltd/Kennedy Drive Medical Centre

On 2 September 2009, Dr Hindman recorded “stiff neck – frontal headache – tender trap muscle trigger points 1,2,3,4.”
On 19 August 2013, Dr Mircea Timofticiuc recorded no spinal tenderness. “From C spine but bit limited lat flexion”. “Advised to follow the rules – says she buzzed for help after 5’, but buzzer was not working”.
On 26 August 2013, Dr Hindman recorded back pain “trying to hold difficult patient on shower chair”.
On 30 August 2013, Dr Hindman recorded “still complains of back pain ++”. He noted that the applicant was “not sleeping re: pain” and had muscle spasm.
On 3 September 2013, Dr Hindman recorded “ongoing muscle spasm lumbar area bilateral. Pain and muscle spasm trapezius bilateral RIGHT > LEFT”. (Capitalisation in original).
On 13 September 2013, Dr Hindman recorded that the applicant had ongoing muscle spasm and pain and stiffness in the lower cervical and upper thoracic spines. He requested CT of the cervical and upper thoracic spines, noting persisting neck and upper thoracic pain, “onset following lifting and straining”.
On 3 October 2013, Dr Hindman recorded that the applicant was “getting hassles from work re: increasing duties”. She had persisting trapezial muscle spasm and pain, and tender trigger points.
On 17 October 2013, Dr Hindman recorded persisting RIGHT scapular and neck pain. (Capitalisation in original).
On 10 March 2014, Dr Hindman recorded increased pain after a day’s work on “normal duties. Showers and bed making”. The physiotherapist said the applicant did not do the exercises. The applicant said she did.
Dr Hindman noted “? follow up with US (ultrasound) RIGHT rotator cuff tendons”. (Capitalisation in original). The reason for contact was recorded as shoulder pain.
On 12 March 2014, Dr Hindman recorded that the applicant’s main pain now seemed to be in the RIGHT shoulder. “SS to deltoid region, wakes her with pain and pins and needles to elbow.” (Capitalisation in original).
Dr Hindman referred the applicant for ultrasound of the right shoulder, recording injury at work in August 2013, persisting pain and loss of function in the right neck and shoulder “? rotator cuff tear, ? evidence capsulitis”.
On 14 March 2014, Dr Hindman recorded that ultrasound of the right shoulder showed no rotator cuff tear. The appearance was consistent with moderately severe bursitis.
Dr Hindman recorded on 15 April 2014 that the applicant had an ultrasound injection to her right shoulder on 14 April 2014, “not settled yet”.
On 30 May 2014, Dr Hindman recorded that the applicant had ongoing problems, continuing subacromial bursitis, stiff neck pain, and shoulder pain with movement.
On 4 July 2014, there was a case conference between Dr Hindman, the applicant and
Mr de Ambrosis.
Dr Hindman advised that the applicant would not be able to return to her pre-injury duties, due to ongoing restrictions associated with back and neck symptoms. Both he and Ms McMahon identified the manual handling required as the main barrier to a return to pre-injury duties.
Dr Hindman confirmed that the right rotator cuff injury had resolved, but the ongoing neck and back symptoms the applicant experienced were due to the injury.
Dr Hindman was advised that the respondent was no longer able to provide or fund suitable duties within the current medical restrictions, and the applicant could only return to work if she was cleared for pre-injury work tasks.
Dr Hindman was also advised of the findings from the workplace assessment, and the adjustments that could be made, along with support strategies that could be implemented to facilitate a return to work.
Mr de Ambrosis suggested to the applicant and Dr Hindman that a graduated upgrade to pre-injury duties be considered to confirm the long-term return to work prognosis. Suggestions included continuing to work in a supernumerary role but taking on additional tasks to provide specific work hardening, without the pressure of having to complete the task.
The applicant did not believe she could upgrade her duties in any capacity, given her current pain levels. Dr Hindman advised that ongoing recovery was variable and did not support trialling an upgrade to pre-injury duties and hours on a graduated basis.
The applicant was assessed with capacity to work at pre-injury hours, 33.5 hours per week, five days per week, continuing to avoid heavy clients or those at risk of falling.
Dr Hindman advised that all appropriate physical treatment options had been explored and no alternatives were likely to be of assistance.
The applicant advised that she had good pain relief from massage therapy. The therapist identified the problems in her neck and shoulder and recommended ongoing treatment to resolve symptoms.
Dr Hindman observed that all the therapists providing conservative treatment had predicted the same outcome, with no success. The applicant was advised that further physical treatment was unlikely to be of assistance unless a different problem or area was identified via the thermal imaging, the results of which had not been received.
A referral for adjustment counselling and pain management was provided. The applicant reported that she loved her pre-injury role and would love to return once her symptoms resolved. She believed they would but was unsure when or how.
Dr Hindman provided a report to the applicant’s solicitors, which he has reproduced in his records on 20 August 2015. The actual report appears to be dated 9 September 2015.
Dr Hindman recorded a history that the applicant first consulted him on 26 August 2013. She complained of general back pain. She had been showering a heavy male patient, whom she tried to prevent falling. She tried to hold him while twisting and reaching for the buzzer, noting “sudden onset” [assumed to be of pain] in her back.
The applicant had consulted Dr Hindman over 50 times between August 2013 and August 2015. The consultations mainly related to reviewing progress with physiotherapists, prescribing medications, and keeping up with WorkCover certificates and reports.
The applicant’s diagnoses remained paravertebral back muscle sprain, involving the neck, thoracic, and lumbar levels. She also had trapezius (neck and shoulder) muscle pain and tenderness, resulting in persisting recurrent headaches.
The applicant’s progress was slower than expected by all treating practitioners. She continued to have palpable muscle spasm throughout her spine and shoulders, the right more than the left.
Dr Hindman opined that the applicant had continued to have paravertebral and trapezius muscle spasm and tightness “throughout the time period”. Her symptoms were exacerbated by the attempted return to work and increasing pressure towards pre-injury duties. Repetitive, heavy work with patients was a frequent pre-injury requirement, and the applicant would not manage those duties.
The applicant had presented with no complaints regarding back, shoulders, neck, or headaches before this injury. Dr Hindman opined that the symptoms, injuries, and disabilities were a result of the incident at work.
Dr Hindman opined that soft tissue injuries involving the vertebral column and muscle are always slow to resolve. They usually resolve within the first year or two. He had treated several people who had returned to alternative employment after three to five years. The applicant would take longer to get past this injury.
The frequent comments of several of those involved in the applicant’s treatment that they could be of no further help had increased her anxiety and depression feelings. These feelings, in turn, reduced her capacity to get past the physical symptoms. Dr Hindman expected her to require intervention “for all the above” for at least another 12 months.
On 21 March 2016, Dr Hindman referred the applicant to Dr Michael Graze, orthopaedic specialist.
Dr Hindman noted that the applicant had a WorkCover claim from August 2013. She had persisting neck and shoulder pain, and headaches; and right paravertebral muscle pain from head to lumbar. There were minimal degenerative disc and spine changes on imaging.
There had been a long period of WorkCover stress, no improvement with physiotherapy (helpful for only two to three days after each session), orthopaedic reviews “etc”. The final straw was a letter from GIO denying that any of the applicant’s symptoms was related to her work injury.
On 17 May 2017, Dr Hindman referred the applicant to Dr Leong Tan, neurosurgeon.
Dr Hindman noted that the applicant had long term neck to lumbar pain, right shoulder pain, and C5/6 disc degeneration on imaging.
The applicant was showering a patient who was slipping. There was an onset of right shoulder, back, and neck pain while she was twisting to reach the buzzer and holding the patient with her right hand.
On 26 October 2017, Dr Hindman recorded that the applicant had trouble keeping up with her TAFE course. Her neck and shoulder pain were ongoing.
On 30 August 2018, Dr Hindman recorded that the applicant had seen Dr Graze and had an injection in the AC (acromio-clavicular) joint, with no improvement in her symptoms. There was “no specific localised pain – all RIGHT trap/neck/shoulder”. (Capitalisation in original).
On 3 December 2018, Dr Hindman reported to MetLife regarding a total and permanent disablement claim.
Dr Hindman reported that the applicant was on the waiting list for right shoulder acromioplasty, with up to a 12 month wait. She had local stabbing pain centred around the right AC joint; scapular muscle pain; right trapezius muscle pain; cervical disc bulge; and neck pain. He noted “nil that doesn’t involve manual labour” and “minimal as explained above” (assumed to be responses to questions about skills and capacity for work).
“Hopeful expectation” that the pain would resolve, and function would improve after surgery was “<50%”.
On 3 December 2019, Dr Hindman recorded that the applicant was booked for right shoulder repair on 16 December 2019.
On 25 March 2020, Dr Hindman recorded that the applicant was frustrated regarding persisting neck, shoulder, and shoulder blade pain. There was no surgical pathology to fix. She was to continue with physiotherapy/home exercises and “orthopod” reviews.
On 13 January 2021, Dr Hindman recorded ongoing shoulder problems.
On 9 February 2021, Dr Hindman recorded “old work injury shoulder. Ongoing orthopaedic, psychologist care re: poor progress and persisting pains.”
On 30 July 2021, Dr Hindman recorded “multiple problems. Ongoing shoulder pain, persisting GI symptoms”.
On 17 September 2021, Dr Hindman recorded that the reason for contact was shoulder pain.
On 1 March 2022, Dr Hindman reported to the applicant’s solicitors.
He had first seen the applicant on 26 August 2013, following the incident on 17 August 2013. She stated that she was supporting an unsteady patient on a shower stool while reaching for a call button that was almost out of reach.
The applicant felt a sudden pain in her RIGHT shoulder. She had trouble sleeping and RIGHT shoulder pain. The symptoms progressed from RIGHT shoulder pain to both shoulders to lumbar pain that restricted home duties, and to neck pain over the next two months. She was seen on 10 occasions by the end of October. (Capitalisation in original).
Dr Hindman reported that the applicant was referred for physiotherapy, taking NSAIDS (nonsteroidal anti-inflammatory drugs), and opioid analgesics, but did not report improvement. She was referred for orthopaedic review for the persisting shoulder and neck pain.
Imaging showed old degenerative changes with no acute pathology. There was no further intervention to recommend.
Dr Hindman noted that the more recent recommendations from Dr Graze sounded hopeful. After extensive investigations showing rotator cuff pathology/tendon tears, he suggested hydrocortisone and local anaesthetic injections and then shoulder surgery in November 2018, and further injections in March 2020.
Dr Hindman was unable to predict any further improvement in the applicant’s symptoms. The surgical interventions did not seem to have provided any significant improvement.
Dr Hindman noted that the symptoms all appeared and progressed after the described incident, so he considered that “the reaching and strain” was the cause. The reason the applicant had not returned to work was “definitely those related symptoms”. Her restricted return to work plan was based on the expectation that she would be able to manage duties that did not involve lifting and reaching with her RIGHT arm. (Capitalisation in original).
The applicant’s symptoms had all progressed following the incident on 17 March 2022 [sic]. There were degenerative cervical spine changes present initially. There was evidence of rotator cuff tears on MRI.
Dr Hindman did not expect that further surgery would be advised. NSAID and analgesia would usually be helpful. The applicant had not, after the initial round, found much further benefit with physiotherapy.
Dr Hindman had suggested that infrared imaging of the shoulder and neck may help to localise pathology that had not been seen on other imaging. He understood that Medicare, workers compensation and other insurers did not consider it cost effective, but it may (or may not) help focus treatment by localising inflammation to an area not previously identified.
On 6 June 2022, Dr Hindman recorded that the applicant was seeing Dr Graze tomorrow. She had an “indefinite” referral for her shoulder. Dr Graze had suggested a different pain clinic referral, “who will deal with W/C”, and also a neurosurgeon to review neck pain. “Seems these requests have been overlooked”.
On 16 December 2022, Dr Hindman recorded that Dr Ng had the applicant on the waiting list at GCUH. She had a physiotherapist who told her he could fix it, so “don’t do the surgery”. She was unsure what to do. There would be a long wait for surgery. She would know if the physiotherapist was helping in the next month or so.

Ms Victoria Povis – physiotherapist

Ms Povis reported on 29 October 2013.
She was employed by the respondent and had been asked by Mr Pierron to review the applicant for her ongoing cervical/thoracic spine pain. The applicant was on workers compensation for this claim and working at the facility.
The applicant still had persistent and more chronic pain on movement. Her pain appeared joint and muscular in origin, with neural referral.
Ms Povis recommended acupuncture with physiotherapy combined as a treatment option. She described the applicant as valued and hardworking, and “we are concerned about her rehabilitation”.
On 27 November 2013, Ms Povis reported to Dr Hindman.
The applicant had had four treatments of physiotherapy, inclusive of massage, mobilisation, and acupuncture of the cervical, thoracic, and lumbar spines.
The applicant’s CT scan report showed disc bulges at C5/6. Her pain referral site on the right was indicative of disc referral in a Cloward’s sign distribution area to the right mid thoracic area and right trapezius.
The mechanism of injury was sustained overreach. Widespread reach, trying to hold a resident from falling, and reaching for an alarm, pointed to involvement of muscular lower tears in latissimus dorsi, erector spinae, quadratus lumborum and trapezius – upper, middle, and lower portions.
Ms Povis opined that the applicant was 50% better in pain levels and functional movement. She referred to the cervical and thoracic/lumbar spines. The applicant had muscle weakness, which Ms Povis opined was due to inhibitory pain response wasting, and disuse wasting, from lack of work-specific tasks over the last three months.
The applicant was still on light duties and reduced shifts. Pilates would strengthen and work harden her for the strenuous tasks of an aged care worker. She was still in a recovery phase, and Ms Povis could not “allow her to step up” until strength and pain levels improved.

Dr Doug Turner – orthopaedic surgeon

Dr Turner reported to Dr Hindman on 30 October 2013.
The applicant’s presenting complaint was recorded as injury to the neck.
Dr Turner recorded that about two months ago, the applicant was lifting a basin [sic: patient] at work when she had a sudden onset of pain in her neck. The pain was in the region of the cervical spine. It radiated into both shoulders and down the thoracic area. It was made worse by certain movements.
Dr Turner noted that CT scan of the cervicothoracic spine on 13 September 2013 was reported as showing degenerative changes in a number of levels, but there were no reported signs of injury.
Dr Turner opined that the applicant’s neck pain was non-specific in nature and was “presumably” due to aggravation of some underlying degenerative changes. He did not think there was any treatment that would benefit her. It may be that physiotherapy and acupuncture would provide short-term symptomatic relief, but he did not think anything would make any difference to the underlying problem.
Dr Turner suggested that the applicant continue with her work as best she was able, and he hoped the problem would settle down with time.

Ms Kelsie Ford – physiotherapist

Ms Ford reported to Dr Hindman on 27 February 2014.
The applicant had had seven physiotherapy sessions and attended four exercise classes. Her pain had significantly improved, and she was experiencing intermittent pain between the shoulder blades.
Ms Ford reported that the applicant achieved full neck rotation to the left and right, full extension and 90% forward flexion. She had full shoulder range of motion on the left and right. She did have a kyphotic thoracic posture and some hypomobility through the thoracic region, which explained the tightness between the shoulder blades.
The applicant was on light duties, which she was tolerating very well. Ms Ford believed she could commence full duties on restricted hours, to see how she tolerated her return to full duties. She had been approved for a further two physiotherapy sessions.

Dr Paul Robinson – orthopaedic surgeon

Dr Robinson was qualified by the respondent and reported first on 27 May 2014.
Dr Robinson recorded a history that, in supporting a patient who was falling forward, the applicant developed pain in the cervical region. This extended into her right shoulder and between her shoulder blades. The applicant stated that the pain in her right shoulder developed in March 2014 without any real precipitating cause. Dr Robinson noted that this was mentioned in a physiotherapy report on 10 March 2014, with no history of injury to the shoulder. It was now a worse pain than her neck.
The applicant had returned to her normal duties and had been on these duties since 13 April 2014. She was struggling but managing. Shopping and cleaning were difficult, requiring assistance from her family.
Dr Robinson opined that the applicant could be considered to have had a soft tissue irritation, aggravating mild degeneration of the cervical vertebra. Her right shoulder had not been injured at work in a definitive incident but may have been irritated in certain movements and lifting patients. She had no clinical evidence of problems that required intervention or further investigation. If symptoms persisted, an injection into the subacromial space would be appropriate.
Dr Robinson believed the symptoms in the applicant’s cervical region were associated with the incident in August 2013. The injury to her right shoulder had only developed when she returned to normal duties. It was soft tissue and constitutional in nature and not related to any workplace injury, but possibly aggravated by return to normal duties after time off. She had no significant back problems.
Dr Robinson opined that the applicant’s work had aggravated an underlying, pre-existing constitutional problem in her cervical spine. This was temporary and should have almost ceased, nine months after the injury.
The applicant’s presentation was consistent with pain, rather than any loss of function. There was exaggeration of impairment on examination, as compared to her being observed, and some exclamations of pain with examination.
As regards the applicant’s work capacity, Dr Robinson noted that she had returned to pre-injury duties. She should avoid excessive bending of the neck and lifting for a short period, if such work was available. She should be able to work her normal hours and was doing so. Being careful in appropriate lifting “etc” would be most essential.
Dr Robinson next reported on 25 June 2014.
He opined that the aggravation of a pre-existing problem should have ceased. The aggravation was producing subjective symptoms, but there was no objective evidence of any problem that would require further investigation and/or treatment. He therefore believed the aggravation had ceased.
Dr Robinson’s final report is dated 2 November 2021.
The applicant had had surgery to her right shoulder in 2019, by Dr Graze. She stated that it improved her symptoms only to a mild extent, and they were aggravated by any activity, for example, household chores or cooking.
The applicant complained of pain in the back of the right shoulder, which passed up into the neck. She believed the range of movement of her shoulder was reasonably satisfactory, but it was painful, particularly in the extremes of movement.
The applicant also complained of continuing cervical pain, pointing to C5 to C7 as the site. This intensified with any movement of the neck and could be associated with paraesthesia and numbness extending into her hand. This was not in any dermatomal or nerve root distribution. Pain in her neck could wake her, and any continuous movement aggravated symptoms, although Dr Robinson was unsure what this meant. Headaches occurred with the cervical pain.
Dr Robinson recorded that the applicant was not working. She had studied business and had a certificate from TAFE, but stated it was difficult to find a position in the area. She was unable to perform any activities involving prolonged lifting. Her last position was in 2014. She had tried to return to this work but was unable to do so because of shoulder pain with lifting.
The applicant continued to complain of problems that she related to injury in 2013. She had had decompression and excision of the acromioclavicular joint and repair of the muscle, although Dr Robinson could not determine that there was any tear in the investigations forwarded to him.
The operation had not improved the applicant’s symptoms and she continued clinically to have a decreased range of movement of the right shoulder. She had clinical evidence of median nerve compression of both hands, more on the right. Dr Robinson opined that the latter condition was constitutional. The cervical problem had continued, but he believed, as in his previous report, that it was constitutional.
Dr Robinson opined that, with the applicant’s symptoms, her description of such, and aggravation by lifting “etc”, she would be unable to return to her work in nursing, and she had not done so for over seven years. It would be difficult for her to obtain a position with the history of her problems. She may be able to use her business diploma to obtain a position. Restrictions would involve avoidance of overhead or heavy lifting.
Dr Robinson again reported that the applicant’s shoulder symptoms commenced in March 2014 and opined they were not related to the work incident. She did have decreased movement. Any aggravation of her cervical problem caused by employment had ceased.

Dr Swapna Sebastian – neurologist

Dr Sebastian reported to Dr Hindman first on 22 October 2014.
Dr Sebastian noted that the applicant had had pain in her right shoulder girdle, scapula, and back since August 2013.
Dr Sebastian recorded a history that the applicant was supporting a patient with her left hand and turned sharply to the right to press the buzzer behind her. She noticed a sharp pain down the neck to the shoulder girdle and shoulder blade. This pain had persisted despite several rounds of physiotherapy and acupuncture. An orthopaedic surgeon had ruled out significant orthopaedic/musculoskeletal problems.
The applicant had trouble lifting her right arm above the shoulder, due to pain. She also had pins and needles on the entire right side of the upper limb, from the shoulder to the tip of her hand, which was constant and appeared bothersome.
Dr Sebastian recorded that the applicant attempted to go back to work for three days in March. Because of the recurrence of right shoulder pain, she had to stop working. X-ray showed bursitis, which was injected with steroid, with temporary relief. She was currently unable to go back to work.
Dr Sebastian opined that the applicant’s symptoms were non-specific. He had explained that there could be a functional basis for them. He had organised MRI of the whole spine to exclude any significant nerve root impingement or cord problems to explain the symptoms. He had explained in detail to the applicant that the mechanism of injury did not explain her symptoms and their duration.
On 21 November 2014, Dr Sebastian reported to Dr Hindman that MRI showed some degenerative changes in C4/5/6, with very minor changes in the upper thoracic spine.
Dr Sebastian did not think this explained the applicant’s symptoms, which sounded neuromuscular in origin. He would discuss the scan with a neurosurgeon to see if surgery would be useful.

Dr James Bodel – orthopaedic surgeon

Dr Bodel was qualified by the applicant and reported first on 22 October 2015.
Dr Bodel summarised the applicant’s injuries as being to the neck and right arm, and back.
Dr Bodel recorded a consistent history of the mechanism of the injury. He noted that the applicant was in an awkward position for about 15 minutes in total (he also recorded that she was supporting a client in an awkward position for over five minutes). The applicant developed increasing pain in the neck and right shoulder and arm, and back. She managed to complete her shift but had increasing pain in the injured areas.
The applicant went to her local doctor because of neck and interscapular pain, right shoulder, and arm pain. She was sent for scans. She was told she had “disc bulges at C4/5 and C5/6” and “bursitis in the right shoulder”.
Dr Bodel recorded that the applicant was put off work in July 2014, as she could not return to her normal work. She was working decreased hours and duties and had a certificate to that effect. She had not been able to return to work and there had been no change in her clinical circumstances since ceasing work.
Dr Bodel reported that investigations confirmed definite disc pathology in the cervical spine, particularly at C5/6, and rotator cuff pathology in the right shoulder; and he diagnosed disc injury in the cervical spine and rotator cuff injury to the right shoulder. The applicant’s employment was a substantial contributing factor to her ongoing injury in her neck, right shoulder, and arm.
Dr Bodel opined that the applicant’s employment had aggravated, accelerated, exacerbated, and deteriorated the disease process in her neck and caused additional structural damage in the cervical spine and right shoulder as a result of the injury.
The applicant could not engage in work that required pushing, pulling, or lifting, or overhead use of the arms.
Dr Bodel next reported on 5 February 2020.
The history of the injury remained the same, but Dr Bodel did record that “during this whole period of time” (about 15 minutes altogether) there was a significant strain on the applicant’s neck, right shoulder, and arm.
The applicant had not been able to return to work since she was last seen by Dr Bodel.
Ms McMahon had recently undergone arthroscopic surgery to her right shoulder. She had had a further injection of local anaesthetic and hydrocortisone into the subacromial space, which had not helped.
Dr Bodel referred to the applicant’s local doctor’s continuation notes, which he reported confirmed ongoing problems with her neck and right shoulder since the original injury. The shoulder clinically deteriorated over time.
Dr Bodel diagnosed soft tissue injury to the cervical spine, in the form of a whiplash associated disorder and aggravation of some underlying degenerative change in the cervical spine, as a result of the event on 17 August 2013. The applicant also suffered a rotator cuff injury to the region of the right shoulder, for which she had had definitive treatment.
Dr Bodel opined that the injury in August 2013 caused significant pathology to the region of the applicant’s right shoulder, for which the surgery was reasonably necessary. He had been given no history of any other event that may have led to the rotator cuff tear.
Dr Bodel’s final report is dated 26 August 2021.
Dr Bodel noted that the applicant managed to do light duties for about a year after the injury but had not returned to work. She was keen to try but did not consider there was any work she could do, for which she had appropriate education, physical fitness, training, and experience, because of her continuing levels of pain.
The history of the injury remained unchanged. Dr Bodel recorded that the applicant may have been holding the resident in a very awkward position for as long as 15 minutes. During that time, she developed increasing head, neck, and right shoulder girdle pain; upper back pain in the periscapular region of the thoracic spine on the right; and pain that eventually radiated down the arm to the hand, with numbness and tingling in all digits of the hand.
The applicant said that, just over 18 months after shoulder surgery, there was minimal improvement. She still had ongoing pain in the base of the neck and over the top of the right shoulder, pain in the front of the shoulder, and numbness and tingling all the way to the hand.
The applicant also had pain in the periscapular region of the upper back on the right and had been left with swelling in the supraclavicular fossa above the clavicle on the right. She had had no recommendation for injections or surgery involving the neck.
The applicant had been referred to a pain clinic, and she was to see the pain specialist in December 2021. She was very disappointed with the outcome (assumed to refer to the surgery) and her inability to cope with day-to-day activities or return to work.
The applicant’s complaints included headache, neck pain, and right shoulder girdle pain. Head down posture and use of the right arm overhead could aggravate the pain. She woke if she rolled onto her right side at night. She could not push, pull, lift, or use her arm overhead. She developed increasing numbness and tingling in the right hand if she used her right arm for more than 15 minutes.
Dr Bodel opined that the applicant had had a rotator cuff injury to the right shoulder and a soft tissue injury to the neck, with aggravation, acceleration, exacerbation, and deterioration of underlying disc disease in the cervical spine. There was a direct causal link between the lifting incident at work and her ongoing complaints in the neck, right shoulder, and arm.
The applicant had had appropriate treatment, including surgery. That had helped a little, but overall, she was disappointed with the outcome because she still had significant pain and woke if she tried to lie on the right side. This aggravated her neck, right shoulder, and arm.

Dr Michael Graze – orthopaedic surgeon

Dr Graze reported to Dr Hindman first on 27 January 2017. Much of the report is missing.
Dr Graze recorded a history that the applicant was holding a resident with her left hand, while attempting to reach for the buzzer with her right. It was approximately 10 minutes before she received assistance. Since that time, she had had ongoing pain in her right shoulder, with no prior problems.
The applicant’s current pain was at the shoulder, with retrograde radiation to the medial scapular, and to the neck and right side of the head “(? greater occipital nerve)”. The discomfort was aggravated with any attempt at lifting. There was associated paraesthesia involving the hands, significant at times.
Dr Graze noted that ultrasound of the right shoulder in March 2013 revealed an intact cuff and moderate bursitis. An MRI of the spine in October 2014 revealed loss of cervical lordosis and degenerative change at C4/5 and C5/6. An annular bulge at that level was causing a degree of deviation of the cord.
The above appears on page one of the report. The next page that is provided is page eight, the final page.
Dr Graze summarised that the applicant presented three years post an injury to her shoulder at work, and not having worked for at least two years in relation to this. He believed a degree of her symptoms was coming from the spine. He had requested MRI of the cervical spine and would likely recommend spinal review.
A component of the applicant’s symptoms may have been coming from the shoulder, and Dr Graze referred her for two subacromial ultrasound guided cortisone injections, with review in three months with X-ray. If the symptoms were not completely relieved, and ongoing tenderness was at the AC joint, consideration could be given to AC joint cortisone injection.
Dr Graze reported to Dr Hindman on 14 August 2018, the applicant having consulted him about her ongoing right shoulder concerns. She had been seen by neurosurgeon Dr (Li Kuin) Chang in May, and conservative measures had been recommended. She was undertaking rheumatological referral.
The applicant’s shoulder symptoms persisted and were associated with headaches. She was tender at the AC joint, which had not been injected with cortisone. Dr Graze had referred her for this, to which she had responded relatively well in early 2018.
Dr Graze reported to Dr Hindman on 21 November 2018.
Dr Graze had reviewed the applicant’s right shoulder. He noted that it had been five years since the onset of symptoms that she related to a workplace injury. Despite time and conservative measures, including AC joint injection in August 2018, symptoms persisted. The applicant remained markedly tender at the site of the injection and experienced neck discomfort.

Dr Graze recommended that the applicant proceed to arthroscopic acromioplasty and distal clavicle excision. She was aware of a likely one year wait for the surgery.
On 17 March 2020, Dr Graze reported to Dr Hindman that he had reviewed the X-ray of the applicant’s right shoulder post-operatively. The X-ray revealed adequate acromioplasty, along with distal clavicle excision. Dr Graze recommended a subacromial cortisone injection and review in six to eight weeks.
If the applicant’s paraesthesia persisted, Dr Graze may proceed with nerve conduction studies at a later date, to assess for carpal tunnel syndrome.
Dr Graze reported to Dr Hindman on 14 July 2020.
The applicant had been reviewed seven months after surgery. She had ongoing symptoms despite a post-operative cortisone injection.
On examination, the applicant had a largely restored symmetrical range of motion, but remained tender at the AC joint, and impingement testing was positive.
The applicant had been having physiotherapy throughout. Dr Graze had arranged for an MRI of the shoulder and base of the neck, given the applicant had commented on persistent swelling medial to the AC joint. The MRI had been requested to exclude any lymphadenopathy or other space occupying lesion.
If the MRI did not demonstrated pathology, then nerve conduction studies could be appropriate, given the sensory symptoms the applicant got from time to time at the hand. Otherwise, Ms McMahon would have further cortisone injections and ongoing physiotherapy to eliminate residual inflammation.
Dr Graze reported to Dr Hindman on 16 February 2021.
The applicant had undergone the surgery just over a year ago. She remained symptomatic, despite the surgery and two subsequent cortisone injections.
The applicant’s range of motion was relatively preserved. She normally worked as an AIN and was keen to return to that work, but felt her shoulder was restricting her.
Dr Graze recorded that the applicant was tender at the level of the AC joint and described neck pain. As such, despite adequate clearance on the X-ray at the site of the distal clavicle excision, he would trial an AC joint cortisone injection and review in six to eight weeks. He encouraged ongoing physiotherapy.
There is an undated report of Dr Graze that refers to it having been 18 months since the applicant’s shoulder surgery on 16 December 2019, which would place the date as about June 2021, although the reference to injection six weeks ago on 10 March would date it in about mid-April.
Dr Graze reported that the applicant’s symptoms persisted but were not specifically based at the right shoulder. She described periscapular discomfort and radiation up the right side of the neck. Range of motion was relatively preserved at the shoulder.
The applicant was happy with the range of motion overall, but any pushing or pulling through this arm caused discomfort. MRI had previously been undertaken to assess for any space occupying lesion, but none had been identified.
Dr Graze had arranged for a CT scan of the applicant’s cervical spine, to exclude referred pain from C4/5 nerve root impingement. If this was not evident, he suspected a chronic pain clinic would be appropriate to see if the discomfort could be managed, given that surgery, injections, and time, had not helped.
The applicant had had multiple injections since her acromioplasty, most recently an AC joint injection approximately six weeks ago on 10 March, once again with no effect.
Dr Graze again reported to Dr Hindman on 7 December 2021.
The applicant was two years post right arthroscopic acromioplasty and distal clavicle excision. She had ongoing pain, despite an AC joint cortisone injection in March 2021, and ongoing neck discomfort and paraesthesia radiating to the hand.
MRI and CT scan had revealed a broad based disc bulge at C5/6. The applicant had been planned to have a chronic pain management review with Dr Grice, but due to ongoing potential workers compensation claim and solicitor input, this did not proceed.
In view of the applicant’s radicular symptoms and neck pain, Dr Graze had suggested a spinal opinion was appropriate. Her shoulder range of motion was quite functional.
Dr Graze had arranged to see the applicant in four to six months, with hopefully spinal opinion in the interim, and potentially chronic pain physician review if symptoms were persisting despite these interventions, and then they may proceed with repeat MRI of the shoulder.

Dr Li Kuin Chang – neurosurgeon

Dr Chang reported to Dr Hindman first on 28 November 2017.
Dr Chang recorded a consistent history of the injury. “Since then,” the applicant had been having chronic stabbing pain in the nape, right scapular, and armpit region. It sometimes radiated to the right side of her head and face, anterolateral aspect of the arm, and proximal forearm. It was worse with use of her upper limb in every manner, such as working on the computer and washing the dishes.
The applicant had pins and needles in the radial three digits of the right hand. Except for right lower back and leg numbness after prolonged sitting, she denied issues in the legs, or urinary or bowel habit.
An MRI of the cervical spine on 8 May 2017 showed reversal of cervical lordosis without compromising the cord or nerve roots. There seemed to be nerve root diverticuli in the lower cervical spine. The X-ray of the right shoulder was unremarkable. The applicant had had four trials of right shoulder injections, which did not yield much relief.
Dr Chang opined that the applicant’s right shoulder girdle symptom was likely a referred pain from the neck. He would proceed with MRI of the brachial plexus and thoracic outlet and nerve conduction study.
On 31 January 2018, Dr Chang reported to Dr Hindman.
The MRI of the cervical spine showed that the cervical cord was slightly indented but not impinged at C5/6 and C6/7 nerve roots. There was mild foraminal stenosis at C5/6, with nerve roots appearing to exit freely. The brachial plexus appeared to be normal.
The applicant’s symptoms in the neck, shoulder girdle, and right arm had not changed since November 2017. Her right jaw and facial pain had settled after root canal clearance.
Dr Chang wanted to wait for a nerve conduction study in April 2018 before seeing the applicant again.
On 17 May 2018, Dr Chang reported that the nerve conduction study, performed by Dr Meenakshi Raj, was normal.
The applicant claimed that her right shoulder girdle remained unchanged. It was again felt in the right trapezius, scapular, latissimus dorsi and triceps area. At times she had burning paraesthesia in the forearm and fingers.
Dr Raj thought the applicant had chronic tension-type headache and neck pain. She was under a pain management program and seeing Amy Castle regularly. There were no discernible dystrophic changes in the right upper limb.
There was more flexibility in the neck and much less aggravation of discomfort [of the] right upper limb on examination. The strength and sensation were otherwise intact.
Dr Chang was unable to explain the applicant’s unilateral symptoms based on the changes in the cervical spine. “…thinking out of the box”, he would refer her to the rheumatology department at GCUH to rule out an underlying rheumatological condition that may explain the symptoms.
On 15 May 2019, Dr Chang reported that the applicant’s left neck-shoulder-upper limb symptoms were essentially unchanged. Examination of her upper and lower limbs showed intact strength and sensation. There was a full range of motion in the neck, without any significant tenderness.
The applicant was scheduled for right shoulder surgery in the near future. She had been seen at the Rheumatology Outpatient Clinic at GCUH and referred for pain management.
The applicant had not been able to return to work, despite training, as she was unable to cope with her symptoms whilst at work. Her claim for total permanent disability had been approved.
Dr Chang planned to repeat the MRI of the cervical spine to exclude cord signal changes. Should this be the case, he would refer the applicant to the neurosurgical department at GCUH for surgical consideration.
Dr Chang reported on 11 June 2019 that MRI on 6 June 2019 showed stable findings, with no further progression of spinal cord indentation at C5/6 and 4/5, or signal cord changes. He would therefore continue to manage the applicant expectantly, given there was a paucity of clinical or radiological progression.

Dr Wayne Ng – neurosurgeon

Dr Ng reported first to Dr Hindman on 25 August 2022.
Dr Ng recorded that the applicant had ongoing neck pain and stiffness. She also had some right shoulder and lower back pain.
The applicant also had some tingling and numbness in the palmar aspect of her right hand and all her fingers. She experienced this more when driving and could wake with it. The symptoms only affected her right hand. A wrist brace had not helped, and she found it uncomfortable. She also had some pain when looking up and down.
The applicant had no radicular arm pain. She had some right shoulder pain. She had normal walking, writing, and could use a fork, spoon, and knife normally.
Dr Ng had compared the applicant’s recent cervical MRI scan to those performed in 2019, 2017 and 2014. There was no substantial change in the findings. There was still no significant change in alignment. There was no neural compression, spinal cord compression, or cord signal abnormality.
Dr Ng had arranged for the applicant to undergo flexion/extension MRI of the cervical spine to ensure there was no dynamic compression of the spinal cord, particularly at C5/6. He would also refer her to Dr Arman Sabet for repeat NCS (nerve conduction study)/EMG (electromyography) to exclude a right median neuropathy.
Dr Ng again reported to Dr Hindman on 27 October 2022.
The applicant reported that she had progressed symptomatically since Dr Ng last reviewed her by telehealth. She had pain in the neck most of the time, along with Lhermitte’s pain (electric shock sensation) when flexing and extending. She reported electric shocks up and down the spine.
The applicant also complained of radiation of pain into the right shoulder and at times down the lateral forearm into the thumb and index finger. She still had numbness in her right hand, which was worse with driving and woke her from sleep. She had just seen Dr Sabet and was reported to have right carpal tunnel on NCS/EMG.
Dr Ng reported that dynamic MRI confirmed dynamic compression of the cervical spinal cord at “C5/6 > C4/5”. There was flattening of the cord at C5/6. There was no cord signal change.
Dr Ng opined that the finding on MRI was in keeping with the applicant’s clinical symptoms and examination findings. She also likely had a double crush phenomenon in regard to her right hand symptoms, where she likely had concurrent C6 radiculopathy and right carpal tunnel syndrome.
Dr Ng recommended two level C4/5 and C5/6 ACDF (anterior cervical discectomy and fusion) to address the spinal cord compression and right C6 radiculopathy. He had discussed with the applicant that she could undergo right carpal tunnel release at the same time.

Associate Professor Arman Sabet – consultant neurologist

A/Prof Sabet reported to Dr Ng on 25 October 2022.
A/Prof Sabet recorded a history of a fall [sic] at work a few years ago, resulting in injury to the right shoulder. Since then, the applicant had had symptoms of neck pain, shoulder pain, and more recently paraesthesia and tingling in the right hand,
The applicant had shoulder surgery in 2019, which helped her symptoms, but only for a short time. She had been investigated for further shoulder pathology. She had also had MRI of the cervical spine, which revealed degenerative changes, but no significant neuroforaminal narrowing to explain her symptoms. A/Prof Sabet understood Dr Ng had requested further MRI with flexion/extension views.
A/Prof Sabet recorded that the applicant had paraesthesia involving the palmar aspect, primarily the first three to four digits. This became worse with certain activities, and bothersome at night. The applicant had been using a wrist splint on occasion. She could not tolerate it well. She described decreased hand grip when she had more symptoms in her hand. Neck pain had no radiation into her arm.
A/Prof Sabet had proceeded with NCS. There was evidence of mild carpal tunnel syndrome in the right hand, which could explain the paraesthesia. He did not find any evidence of more proximal pathology. The symptoms seemed unlikely to be due to radiculopathy. He thought there may still be some shoulder pathology, which was being investigated by the applicant’s orthopaedic surgeon.
A/Prof Sabet recommended that the applicant wear her wrist splint on a regular basis, at least for two to three weeks. If this did not help her symptoms, she may need surgical decompression. Even though the electrophysiological study showed only mild abnormality, she seemed to be fairly symptomatic from this.

SUBMISSIONS

The parties have provided written submissions, so I will refer to them only briefly.

Applicant

The applicant submitted that she sought weekly benefits pursuant to s 37 of the 1987 Act from 29 July 2014, being the last date upon which she received payment from the respondent.
The applicant submitted that from the date of her injury on 17 August 2013 until 22 April 2013 [sic: 2014], the respondent had been reimbursed by its insurer for payments made to her during periods of incapacity while she was engaged on restricted duties prior to 29 July 2014.
The applicant had, indirectly, received benefits pursuant to s 36 of the 1987 Act during the first entitlement period, concluding on 16 November 2013. She was paid, again by the respondent, reimbursed by its insurer, from 17 November 2013 to 22 April 2014, pursuant to s 37 of the 1987 Act. For some of that period, she was working in light duties, more than 15 hours per week, but for the last two weeks she was not working and was paid at the rate of $495.61 per week, which she presumed reflected that the respondent or insurer regarded her PIAWE to be $619.51, as 80% x $619.51 = $495.61.
The applicant submitted that she had then received payment for the first entitlement period (s 36 of the 1987 Act) and for nine weeks of the second entitlement period (s 37 of the Act), based on the list of payments at page 131 of the Reply.
Supported by certificates from Dr Hindman, the applicant was able to remain in restricted duties until 29 July 2014. Her statement dated 8 March 2017 is evidence that she has been unable to work since 29 July 2014. She submitted that she was entitled to weekly benefits for the remainder of the second entitlement period, that is 108 weeks, from 29 July 2014 to 23 August 2016.
The applicant sought an order pursuant to s 60 of the 1987 Act that the respondent pay the expenses she has incurred for injury to her cervical spine, right upper extremity, and lumbar spine.
The applicant submitted that the evidence strongly supported that not only her cervical spine, but her right shoulder and lumbar spine were injured on 17 August 2013.
The applicant referred to her contemporaneous record of her injury.
As regards incapacity resulting from the injury, the applicant submitted she was still in pain when she reported for work on 19 August 2013 and was directed to seek medical assistance. She obtained a certificate permitting her a week off work.
The applicant referred to the history recorded by Dr Hindman in his report dated 9 September 2015. She submitted she had noted and reported symptoms affecting her neck and right shoulder, thoracic and lumbar pains. The neck pain, in particular, led to headaches. She was asymptomatic before her injury.
The accepted injury to the applicant’s cervical spine was the particular source of complaint when she was seen by Dr Turner on 30 October 2013.
The applicant submitted that she had not engaged in any employment since 29 July 2014 and has had no capacity to work in any suitable employment during the period claimed.
The applicant referred to Dr Bodel’s examination in September 2015. While not challenging that she had injured her lumbar spine, he did not identify it as causing significant disability at that time. She submitted that, given she was taking regular medication for her condition, it is unrealistic to regard her as having any capacity for work at that time.
The applicant conceded that on 4 July 2014, Dr Hindman provided her with a certificate that referred to capacity for employment to “the requested 33.5 hours per week”. She submitted this is consistent with her evidence that he had been requested to certify there was some capacity. He noted factors delaying her recovery were “ongoing pain and palpable muscle swelling and spasm”.
The applicant submitted that these objective findings contraindicate a realistic capacity for work. Seventeen days after the issue of the certificate, the respondent terminated her employment.
As regards capacity to earn in suitable employment, the applicant referred to the case conference on 4 July 2014. The respondent was no longer able to provide suitable duties.
The applicant referred to her statement dated 8 March 2017, regarding her condition.
The applicant referred to Dr Graze’s report dated 14 August 2018. She submitted it is clear that Dr Hindman’s suggestion in the case conference that her rotator cuff injury had resolved was optimistic. There is ultrasonic evidence of pathology in the right shoulder, which she submitted the Commission would find was injured when it was wrenched.
The applicant referred to Dr Robinson’s examination in November 2021. His view was that she would be unable to return to work in nursing and it would be difficult for her to obtain a position with the history of her problems. Although this view was expressed subsequent to the period of incapacity for which an award is claimed, she submitted it is of assistance in indicating the level of incapacity caused by the injury on which she relied.
The applicant referred also to Dr Bodel’s report dated 5 February 2020, in which he confirmed his earlier opinion that the injury on 17 August 2013 caused her neck, right shoulder and arm pain.
The applicant sought an award of weekly benefits at $495.61 from 30 July 2014 to 13 February 2016 [sic], reflecting 80% of PIAWE, as indexed; and an order that the respondent pay reasonably incurred medical expenses for the injury to the cervical spine, the lumbar spine, and the right shoulder.
In reply to the respondent, the applicant submitted that the Commission would accept she had established injury to her right shoulder, referring to her uncontested evidence about the nature of the event on 13 August 2013. Dr Hindman reported that the patient was heavy. It is readily acceptable, as accepted by Drs Hindman and Bodel, that she should sustain a strain injury to her right shoulder.
The applicant submitted that her account to Dr Robinson on 27 May 2014 included pain in the right shoulder following the event of 17 August 2013. While he said her right shoulder had not been injured, he provided no explanation why the event of 17 August 2013, precipitating pain, inter alia, in the right shoulder, might not have a causal connection with that pain.
The applicant referred to the clinical history record by Dr Frances Newman, who performed the ultrasound of her right shoulder on 12 March 2014. She submitted that Dr Hindman supported the connection, which is valuable evidence from a GP who had regularly treated her. Dr Bodel, therefore, had support for his conclusion that the pain and disability in the right shoulder was the result of the work injury.
The applicant submitted that the circumstances of the injury; the pathology demonstrated on ultrasonic radiology; the absence of any right shoulder pain prior to the event; and the views of the GP and qualified orthopaedic surgeon, are more persuasive than the absence of a record for a time of complaints of shoulder pain.

As regards injury to her back, the applicant submitted the Commission would be satisfied that she sustained injury to her lumbar spine. The respondent’s submissions point to handwritten notes made on the day of the injury and her letter to Mr Pierron.
The applicant submitted that the Commission would be satisfied that she was, throughout the period for which weekly compensation was claimed, in significant pain. There is no dispute that she sustained injury to her neck. Neck pain continued through the period and continues.
The applicant submitted that the respondent did not, and could not, suggest she was during the period fit for the demanding work she performed prior to her injury.
The applicant submitted that if the Commission is satisfied that there was, as at 13 February 2016 [sic], a continuing legacy of pain in the cervical spine, the lumbar spine, or right shoulder, as a result of the injury, its task under s 37 is to determine whether she has current work capacity. If she has capacity, then s 37(3) applies.

Respondent

The respondent submitted that there is no pleading of frank injury, disease and/or nature and conditions after the alleged deemed date of 17 August 2013. Therefore, any injury sustained after 17 August 2013 is non compensable.
The respondent submitted that proceedings related to the following claims:
(a)    Lump sum compensation in respect of the cervical spine and right upper extremity.
(b) Weekly compensation from July 2014 to 23 August 2016, pursuant to s 37 of the 1987 Act.
(c) General order in respect of medical expenses pursuant to s 60 of the 1987 Act.
(d)    Injury to the right upper extremity (shoulder).
(e)    Injury to the lumbar spine (back).
(f)    Capacity for employment.
The respondent conceded that a general order in respect of medical expenses would flow from a determination of the issues under paragraphs (a) and (b) above. The claim for lump sum compensation was discontinued at the preliminary conference.
The respondent relied on the applicant’s handwritten notes dated 17 August 2013; her letter to Mr Pierron dated 21 August 2013; her statement dated 20 February 2017; the Notification of Injury Form; clinical records; Dr Turner’s report dated 30 August 2013; Ms Povis’ reports; and Dr Robinson’s reports to dispute injury to the applicant’s right upper extremity.
The respondent relied on the CT report dated 8 July 2015; Dr Bodel’s reports; and Dr Hindman’s referral to Dr Hammond dated 1 October 2015 to dispute injury to the applicant’s back.
The respondent submitted that the applicant had no incapacity due to the undisputed injury to the cervical spine, or disputed injuries to the back and right shoulder. It referred to the CT scan of the cervical spine dated 16 September 2013; Dr Turner’s report dated 30 August 2013; Dr Robinson’s reports; Ms Ford’s report; Dr Sebastian’s report; Dr Chang’s report; and Dr Hindman’s report dated 1 March 2022, recording right arm restrictions. Any incapacity resulting from the right shoulder was not compensable.
The respondent submitted that the certificates of capacity (COCs) certified the applicant fit for 6.5 hours x 4 days, with caution with heavy and fall risk clients, from 30 May 2014 to 31 July 2014, and this capacity continued if the Commission did not find the aggravation had ceased.
The respondent submitted that any incapacity found in respect of a secondary psychological is [sic: is not] compensable as this condition is not pleaded.
The respondent submitted that the following orders should be made:
(a) Award for the respondent in respect of alleged injury to the back in the frank injury and/or aggravation of disease on 17 August 2013.
(b) Award for the respondent in respect of alleged injury to the right shoulder in the frank injury and/or aggravation of disease on 17 August 2013.
(c) Award for the respondent in respect of the claim for weekly compensation from July 2014 to 23 August 2016 pursuant to s 37 of the 1987 Act.
(d) Award for the respondent in respect of the claim for a general order for medical expenses pursuant to s 60 of the 1987 Act.

SUMMARY

Section 32A of the 1987 Act provides:
“suitable employment”, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
Section 37 of the 1987 Act provides:

“37 Weekly payments during second entitlement period (weeks 14-130)

(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates--
(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.

(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates--
(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.”

The respondent accepts that the applicant sustained injury to her cervical spine on 17 August 2013. It disputes that she also sustained injury to her back and right shoulder on that date.
For the reasons that follow, I am satisfied that the applicant sustained injury to her back and right shoulder, arising out of or in the course of her employment, on 17 August 2013.
Dealing first with the injury to applicant’s back, the Notification of Injury Form referred to her having sustained a back strain.
The applicant’s statement evidence referred to her neck and back aching as she attempted to keep the resident from falling. Her neck, back, and shoulder were aching terribly on 9 March 2014.
Dr Hindman recorded complaints of back pain after 17 August 2013. There is no other reference to back pain in the clinical records that date back to 2009. He confirmed the complaints of back pain in his report to GIO in 2015.
Dr Sebastian recorded in October 2014 that the applicant had had pain in her right shoulder, scapula and back since August 2013.
Dr Bodel accepted that the applicant had sustained injury to her back. As she conceded, he did not identify it as causing significant disability in September 2015.
There is ample evidence to establish on the balance of probabilities that the applicant sustained injury to her back on 17 August 2013, albeit that it may not now be making a significant contribution to any incapacity for work she may have.
As regards the injury to her right shoulder, it is true that the applicant’s early statements made no reference to her right shoulder.
However, the applicant has given a consistent history of having to hold a heavy (as recorded by Dr Hindman), agitated, male patient, in an awkward position, for a period that may have been up to 15 minutes, while she extended her right arm behind her attempting to summon assistance.

Dr Hindman, who has had the advantage of treating the applicant over a long period, accepted that she injured her right shoulder on 17 August 2013. There is no evidence to suggest that there was any further incident between that date and when she was referred for ultrasound in March 2014.
Dr Hindman recorded in the referral for ultrasound that the applicant sustained injury at work in August 2013. Dr Newman, who performed the ultrasound, recorded the same history, but it is possible she simply adopted that of Dr Hindman.
Dr Hindman confirmed in his report dated 1 March 2022 that the applicant’s symptoms all appeared and progressed after the incident, so the reaching and the strain was the cause. There is no reference in the clinical records to any prior right shoulder symptoms.
Dr Robinson, while recording the onset of right shoulder pain in March 2014, also recorded that the applicant had pain that extended to her right shoulder while she was supporting the patient.
I have already noted the history recorded by Dr Sebastian.
Dr Bodel recorded that, while the applicant was supporting the patient, there was significant strain on her neck, right shoulder, and arm. Dr Robinson described Ms McMahon in his report dated 27 May 2014 as being four feet and 11 inches in height and weighing 55kg. She is obviously a diminutive person. I accept that holding a heavy, agitated man would have placed significant strain on her upper body.
As the applicant submitted, Dr Hindman was optimistic in suggesting in July 2014 that the rotator cuff tear had resolved. She underwent surgery at the hands of Dr Graze in 2019. The medical evidence, including that of Dr Hindman, Dr Robinson, and Dr Bodel, confirmed that she continued to experience symptoms in her right shoulder.
The applicant claims to have had an incapacity for work since 30 July 2014, the date on which her claim for weekly benefits commences, noting that no claim is made after 23 August 2016.
The applicant accepted at the conciliation/arbitration hearing that her PIAWE were as asserted in the respondent’s wages schedule dated 7 February 2023. This was reflected in my direction dated 21 February 2023.
The respondent’s wages schedule claims that the PIAWE was $771.53 per week from 23 April 2014 to 16 August 2014; and $577.33 per week from 17 August 2014 to 11 August 2018.
As 17 August 2014 was 52 weeks after the date of the injury, it is assumed that the second figure represents the “step down” after 52 weeks, provided for by the former s 44C (1)(b) of the 1987 Act.
The applicant, in her written submissions, submitted that her PIAWE were $619.51 per week. The respondent made no further submissions on the PIAWE.
While the applicant has attempted to resile from the concession she made at the arbitration hearing, it does not appear that she has taken into account the reduction after 52 weeks, at which stage the calculation of the PIAWE excluded overtime and shift allowances.
The applicant submitted that she was entitled to payment of weekly benefits at 80% x the PIAWE, that is, that she had no current work capacity during the period in dispute.
The respondent submitted that the applicant continued to have capacity to work for 6.5 hours a day, four days a week, from 30 May 2014 to 31 July 2014; and this capacity continued, if it was not determined that the effects of the aggravation had ceased. The applicant was in fact certified fit for an additional 7.5 hours per day, for one day per week, making a total of 33.5 hours per week. Dr Hindman added to the COC “(to make the requested 33.5 hrs a week)”.
The applicant was working her normal hours but was not able to do her pre-injury duties. Dr Hindman would not allow her to perform them, as recorded at the case conference on 4 July 2014. She had been working as a supernumerary, with caution with heavy and fall risk clients.
Dr Hindman and the applicant were advised at the case conference that the respondent would not continue to provide Ms McMahon with suitable duties. It subsequently terminated her employment because she was unable to perform the inherent requirements of her position.
I accept that, during the relevant period, the applicant did not have the capacity to perform her pre-injury duties. Dr Bodel opined that she could not engage in work that required pushing, pulling or lifting, or overhead use of the arms. Dr Robinson opined in 2021 that she could not return to her nursing duties. While this post-dated the period in respect of which she is claiming, as she submitted, it is of assistance in indicating the level of her incapacity. Dr Robinson also opined that it would be difficult for Ms McMahon to obtain a position with the history of her problems.
The issue, then, is whether the applicant had current work capacity during the relevant period.
I also do not accept that the applicant had the capacity to work for 33.5 hours per week, as certified. I accept her evidence that Dr Hindman was being requested to certify her as fit for increased hours by her rehabilitation coordinator and CM. He noted that ongoing recovery was variable and did not support trialling an upgrade to pre-injury duties and hours on a graduated basis.
In Wollongong Nursing Home Pty Ltd v Dewar,[1] Deputy President Roche considered the extent to which the application of authorities such as Arnotts Snack Products Pty Ltd v Yacob,[2] Ric Developments t/as Lane Cove Pool Mart v Muir,[3] and Lawarra Nominees Pty Ltd v Wilson[4] was affected by the changed provisions going to the meaning of “suitable employment”.
[1] [2014] NSWWCCPD 55 (Dewar).
[2] [1985] HCA 2; 155 CLR 171.
[3] [2008] NSWCA 155; 71 NSWLR 593.
[4] (1996) 25 NSWCCR 206.
Roche DP said:
“The new provisions require a determination of whether a worker has a ‘current work capacity’ or ‘no current work capacity’. A ‘current work capacity’ is an ‘inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. ‘No current work capacity’ exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment.
Having accepted that Mrs Dewar has an ‘inability’ arising from her work injury, the Arbitrator’s task was to determine, having regard to the matters listed in the definition of suitable employment, if she was ‘able to return to work in suitable employment’. The legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is ‘available’ or is of a type or nature that is ‘generally available in the employment market’” (at [47]-[48]).
Roche DP also said (at [58]):
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’.” (Emphasis in original).
The applicant is currently 51 years old. She has not worked since 2014. Although she has not explicitly said this, it would appear from her statement dated 14 February 2018 that her employment history included food service assistant/waiter; food production worker; and room attendant. Dr Robinson recorded that she worked in the hospitality industry after coming to Australia. She had concurrent employment as a waiter while she was employed by the respondent. Work in these employments would involve manual handling and physical exertion, to a greater or lesser degree.
According to Dr Robinson’s evidence, the applicant has studied business and obtained a TAFE certificate, but it was difficult to find a position. She has given evidence that she found the course a struggle. Dr Robinson opined that it would be difficult for her to find a position with her restrictions. As I have noted, his opinion post-dates the date on which the claim for weekly benefits closes, but it is of some assistance.
The applicant’s statements in March 2017 and 14 February 2018 included her then restrictions. The medical evidence confirms that she still has significant ongoing symptoms and restrictions on her activities.
Once the applicant’s employment was terminated in July 2014, there is no evidence of any return to work planning process, or any occupational rehabilitation service being provided to the applicant. She appears to have undertaken the TAFE course on her own initiative, or it may have been initiated by Centrelink. She does not appear to have any experience in office-based work.
Taking into account all of the above matters, I have determined that the applicant had no current work capacity during the period in which weekly payments of compensation is claimed.
I have adopted the respondent’s wages schedule, as the applicant accepted its correctness at the arbitration hearing, and for the reason above regarding her calculations, but I will give the parties liberty to apply.
The only claim made in the Application in respect of medical expenses is for past medical expenses of $7,303.70. She made no other claim for medical expenses.
In her submissions, the applicant sought an order for payment of the reasonable medical expenses she had incurred for injury to her cervical spine, right upper extremity, and lumbar spine. The respondent conceded that a general order pursuant to s 60 of the 1987 Act would follow from finding in the applicant’s favour with respect to the claim for weekly compensation.
Given my findings, and the applicant’s claim and submissions, I propose to make the order sought by the applicant.
The orders are set out in the Certificate of Determination.

[2023] NSWPIC 255

1 June 2023