Morados v Cordina Chicken Farms Pty Ltd
[2021] NSWPIC 16
•11 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Morados v Cordina Chicken Farms Pty Ltd [2021] NSWPIC 16 |
| APPLICANT: | Rose Morados |
| RESPONDENT: | Cordina Chicken Farms Pty Ltd |
| MEMBER: | Mr Glenn Capel |
| DATE OF DECISION: | 11 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Accepted left shoulder injury; neck injury disputed due to lack of objective evidence of radiculopathy; Lyons v Master Builders Association of NSW Pty Ltd, Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Hancock v East Coast Timbers Products Pty Ltd and Davis v Council of the City of Wagga Wagga discussed and applied; Held- award for applicant in respect of the injury to her neck; claim remitted for assessment of whole person impairment. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to her left shoulder and neck arising out of or in the course of her employment with the respondent on 10 May 2018 (deemed). 2. The applicant’s employment was the main contributing factor to her injury. |
| ORDERS MADE | 3. I remit this matter to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment of the whole person impairment of the applicant’s left upper extremity (shoulder) and cervical spine due to injury sustained 10 May 2018 (deemed). 4. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attachments; (b) Reply with attached documents, and (c) Application to Admit Late documents received on 22 February 2021. |
STATEMENT OF REASONS
BACKGROUND
Rose Morados (the applicant) is 54 years old and commenced employment with Cordina Chicken Farms Pty Ltd (the respondent) as a process worker on 22 July 2013. She ceased work in July 2019.
There is no dispute that the applicant injured her left shoulder arising out of or in the course of her employment on 10 May 2018 (deemed). Liability was accepted by AAI Ltd t/as GIO (the insurer) and I understand that weekly compensation and medical expenses were paid from 4 June 2018 to 11 November 2020.
On 9 March 2020, the applicant’s solicitor served a claim for lump sum compensation on the insurer in respect of injuries sustained to her left upper extremity (shoulder) and cervical spine on 10 May 2018 (deemed).
On 23 June 2020, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant had injured her cervical spine and that her employment was the main or a substantial contributing factor to her condition. It disputed that the applicant was entitled to lump sum compensation as her assessment of impairment of the left upper extremity (shoulder) did not pass the threshold in s 66(1) of the Workers Compensation Act 1987 (the 1987 Act). It cited ss 4, 4(b), 9A and 66 of the 1987 Act.
On 7 October, the applicant’s solicitor served further medical evidence and he requested the insurer review its decision.
On 25 November 2020, the insurer reviewed its decision pursuant to s 287A of the 1998 Act and confirmed that it intended to maintain its position.
By an Application to Resolve a Dispute (the Application) registered in Workers Compensation Commission (now the Personal Injury Commission) (the Commission) on
10 December 2020, the applicant claims lump sum compensation due to an injury sustained to her left shoulder and cervical spine on 10 May 2018 (deemed).
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
i) whether the applicant sustained an injury to her neck arising out of or in the course of her employment with the respondent – s 4(b)(ii) of the 1987 Act;
ii) whether her employment the main contributing factor to his injury– ss 4(b)(ii) and 9A of the 1987 Act, and
iii) quantification of the applicant’s entitlement to lump sum compensation – s 66 of the1987 Act.
The parties agreed that in the event that the applicant succeeded, her claim should be referred to a Medical Assessor. In the alternative, the claim would not be remitted because the applicant’s assessment in respect of her left upper extremity (shoulder) did not exceed the threshold in s 66(1) of the 1987 Act.
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) The Application with attached documents;
(b) Reply with attached documents, and
(c) Application to Admit Late Documents received on 22 February 2021.
Oral evidence
Neither party sought leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Applicant’s statements
The applicant provided two statements on 3 July 2020. In the first statement, she indicated that she had to season chickens, tie their legs together and place them on a different conveyor belt. The workers dealt with “huge” numbers each hour. She also was required to remove chickens from plastic tubs and place them on the conveyor belt for the chiller.
The applicant claimed that they had to lift hundreds of “reasonably heavy chickens” over and over each day. Each chicken weighed around 1 kg, but the weights varied. At times they had to take chicken parts and place them into tubs located on pallets. The tubs would weigh around 20 kg. The tubs were lifted by two workers and turned over onto the conveyor belt for the chiller.
The applicant believed that the injury was caused by repetitive lifting. Her claim was accepted by the insurer and she was referred to Dr Yalizis, who performed two operations on her shoulder.
The applicant stated that she had continued to experience pain in both shoulders. She also experienced pain in her neck when she kept her head or neck flexed for any lengthy period. Her symptoms impacted on her life.
In the applicant’s second statement, she advised that she had been referred to Dr Suttor and he had recommended a neck injection. She stated that her neck was very painful all of the time and she could not look down for any lengthy period. She could move her head a little bit left and right, but her neck felt very tight at the end of the range of movement. Curiously, she also said that she could turn her head left and right reasonably well. She had difficulty sleeping due to her neck pain. Her shoulders were also sore, especially the left shoulder, and she could not raise her left arm above shoulder height.
The applicant stated that she attributed her neck and shoulder pain to repetitive work in fixed positions for long hours at the respondent. There was no proper rotation of duties and the machines and tubs were not safe. She ceased work in July 2019 because of her neck pain and her duties were causing a deterioration in her condition. She took Lyrica but she tried to avoid taking it every day. She had been advised that she might need neck surgery, but she was not prepared to have the operation.
Clinical notes, reports and medical certificates of the Argyle Streety Medical Centre
The clinical notes of the Argyle Street Medical Centre commence on 1 March 2005 and conclude on 19 January 2021. At the beginning of the notes, it was reported that the applicant had an active past history that included cervical radiculopathy and shoulder pain on
23 July 2007. The clinical note of that date recorded no details of her complaints or the doctor’s findings on examination. Dr Lau referred the applicant to Kelly Fong and Michael Shilson-Josling. An internet search shows that Ms Fong is a dietician and Mr Shilson-Josling is a physiotherapist. Dr Lau also prescribed Voltaren.The first record of any left shoulder symptoms was on 27 April 2018, when Dr Ngo noted that the applicant had left shoulder pain caused by lifting her arm frequently at work. The doctor recorded that there was a normal range of movement and non-specific tenderness.
On 9 May 2018, Dr Siddiqui recorded that the applicant had been troubled by a painful left arm for one month. She had a restricted range of movement and signs of impingement. He diagnosed a sprain, tendinitis and possible bursitis. The doctor referred the applicant for an ultrasound that showed an articular surface tear of the supraspinatus tendon and subacromial bursitis. There was a history of symptoms being caused by lifting at work.
On 1 June 2018, Dr Siddiqui recorded that the applicant was seeing Dr Hakimi for the purposes of a worker’s compensation claim.
The applicant’s attendances on the practice in the latter part of 2018 largely concerned other health issues. There were references to the applicant’s left shoulder in December 2018, both before and after her operation. Her sutures were removed by Dr Villanueva on
7 January 2019. The notes do not mention any left shoulder or neck problems throughout 2019.The applicant attended the practice on 31 January 2020 for a coronary condition. Dr Siddiqui reported that the applicant had seen Dr Renganathan, and she still had some chest and neck pain. It is unclear whether these symptoms related to her heart issues. The notes do not mention any left shoulder or other neck problems in 2020.
On 11 January 2021, Dr Siddiqui recorded a history of the applicant’s heart and left shoulder problems. The applicant complained that her right shoulder was very tight. There was a restricted range of movement in both shoulders. The doctor referred the applicant for x-rays and ultrasounds. These tests showed degenerative changes and subacromial bursitis in both shoulders, a partial thickness tear of the left rotator cuff, and tendinosis in the right rotator cuff.
Clinical notes, reports and medical certificates of Dr Hakimi
The clinical notes of Nelsons Ridge Medical Centre commence on 29 May 2018 and conclude on 20 December 2019.
On 28 May 2018, Dr Hakimi recorded the following history:
“working in (Cordina Chickens factory)
she does a lot of manual lifting and repetitive work in her job on daily bases
has had Lt shoulder for 3 months
was seeing by her regular GP started on NSAID 4-5 weeks ago
on anti-inflammatory medication under her regular GP care
Reviewed the US and the reported noted confirmation of an articular surface thickness tear Anteriorly in the supraspinatus, there is subacromial bursitis with impingement. There is tendinosis of the subscapularis and supraspinatus tendons. There is a small tear of the posterior labrum and there is minor bicipital tendinitis”.[1]
[1] Application, p 53.
On examination, the doctor observed tenderness in the anterior aspect of the applicant’s left shoulder and a reduced range of movement in all directions. The right shoulder and neck were normal on examination. Dr Hakimi diagnosed a left supraspinatus tear and subacromial bursitis with impingement.
On 4 June 2018, Dr Hakimi recorded the following:
“has constant pain radiates to the Lt arm with weakness and numbness all night was in pain very distressed
Examination:
restriction of shoulder and neck movement
Lt arm weak then the Rt side
Management:
Explanation, advice / listening & reassurance, pt education was given
Physiotherapy
MRI of the neck
Reason for visit:
Worker's Compensation certificate
shoulder and neck injury at work”.[2]
[2] Application, p 54.
Subsequent entries by the physiotherapist, Twinkle Valani, referred to left shoulder and neck pain. On 14 June 2018, Dr Hakimi referred the applicant for an MRI scan of her neck and left shoulder. The doctor also referred to the applicant having suffered a “work injury”.
An MRI scan was undertaken on 14 June 2018. A copy of the actual scan report is not in evidence, but Dr Hakimi recorded the findings in referrals to Drs Dandie, Owler and Suttor dated 18 June 2018. It would seem that she merely cut and pasted the radiologist’s summary into her notes, her medical certificates and the referrals as follows:
“Multilevel mild spondylitic changes most pronounced at the C4/5 level where there is left eccentric osteochondral bar and associated foraminal component clearly seen to be severely narrowing the left foramen and impinging the left C5 nerve root.”[3]
[3] Application, p 57.
On 18 June 2018, Dr Hakimi noted that the reason for the consultation was “cervical spine radiculopathy”. She referred the applicant to Dr Owler for an opinion and management of her cervical spine radiculopathy.
On 9 July 2018, Dr Hakimi recorded that the applicant was doing repetitive labelling duties at work and at the end of the day, she experienced soreness in her neck and shoulder.
On 16 October 2018, Dr Hakimi referred the applicant to Dr Suttor for treatment of her cervical spine radiculopathy. The applicant continued to complain about neck and left shoulder symptoms when undertaking restricted duties until she had shoulder surgery in December 2018.
On 25 February 2019, Dr Hakimi reported that the applicant had ongoing shoulder and neck pain, and on 6 May 2019, she noted that the applicant had increased pain with radiculopathy.
On 22 August 2019, the applicant informed the doctor that she had pain in her neck, more so at night, with radiation to her left arm. On 22 October 2019, Dr Hakimi reported that the applicant had pain in her right shoulder that was due to overuse caused by overcompensation for her injured left shoulder. At that stage, the doctor referred the applicant for an ultrasound. Surprisingly, the applicant has not made a claim for a consequential condition in her right shoulder.
In a report dated 9 October 2020, Dr Hakimi indicated that she first saw the applicant on
4 June 2018. This is inaccurate and not consistent with the clinical notes. She reported that the applicant had complained of progressive left shoulder pain over a long period, but her symptoms had become worse. The pain initially started in the applicant’s left shoulder and radiated to her neck and left arm.The doctor noted that the applicant’s duties involved repetitive picking, packing, and lifting of tubs of chicken onto a conveyer. An ultrasound showed an articular surface thickness tear anteriorly of the supraspinatus tendon, subacromial bursitis with impingement, tendinosis of the subscapularis and supraspinatus tendons, a small tear of the posterior labrum and minor bicipital tendinitis. An MRI scan showed similar pathology.
On examination, the doctor observed tenderness in and a reduced range of motion in the left shoulder and neck pain when the applicant moved her neck to the right side.
Dr Hakimi concluded that the applicant’s employment as a process worker was a contributing factor to the degenerative disease in the applicant’s joints and soft tissues, with the most likely cause being her daily work tasks at the respondent. The doctor believed that sitting for long hours and bending of the neck, together with repetitive shoulder movements caused chronic tendinosis of the rotator cuff and degeneration of the applicant’s cervical spine with aggravation of pain and the reduction of normal function.
In the initial certificate dated 29 May 2018, Dr Hakimi certified that the applicant had no current work capacity from 29 May 2018 to 4 June 2018 due to right shoulder rotator cuff disease and bursitis caused by manual lifting and repetitive duties at work. The reference to the applicant’s right shoulder was obviously a typographical error.
Dr Hakimi issued a similar certificate on 4 June 2018 in respect of the applicant’s left shoulder, but she added the handwritten words “and cervical neck pain (radiculopathy)”. She indicated that the applicant required an MRI of her neck because she had radiculopathy in her left arm.
The next certificate issued on 12 June 2018 omitted any reference to the applicant’s neck, although the doctor still recommended that she have an MRI scan of her neck. The certificate issued on 18 June 2018 and subsequent certificates certified that the applicant had no current work capacity or had some capacity for work due to a left rotator injury and bursitis, and within the diagnosis paragraph, she included a summary of the MRI scan findings that seems to have been cut and pasted from the scan report.
Reports of Dr Yalizis
There are a number of reports in evidence from Dr Yalizis, but they are lacking any history of the applicant’s injury, past treatment, or complaints.
On 11 September 2018, Dr Yalizis recorded that the applicant had received some injections, and these had been of some benefit.
In his report dated 4 February 2019, Dr Yalizis advised that the applicant had surgery six weeks earlier, but she was troubled by swelling. On 7 February 2019, the doctor advised that the applicant had a loose biceps tenodesis screw that required removal. The insurer approved this procedure.
In his final report dated 4 April 2019, Dr Yalizis stated that the applicant’s shoulder pain was similar to the pain that she had experienced before her surgery, and she had developed a frozen shoulder. He arranged for her to have an injection.
Report of Dr Owler
Dr Owler reported on 7 August 2018. He recorded that the applicant began to develop pain and numbness over the left hand and shoulder around 31 May 2018. Her pain seemed to increase with repetitive movements of her left arm. He observed tenderness over the shoulder, particularly around the bursa aspect of the joint. There was pain on shoulder abduction, however, power in the upper limbs was normal. There was no neurological defect.
Dr Owler commented that the MRI scan of cervical spine showed relatively minor changes. There was foraminal stenosis on the left side at C4/5, which could affect the shoulder.
Dr Owler considered that the applicant’s symptoms were more likely due to the shoulder pathology that was identified in the MRI scan. He recommended that the applicant have left shoulder injections.
Reports of Dr Suttor
Dr Suttor initially reported on 30 October 2018. He recorded that the applicant had a two-year history of axial neck pain. This has been developing whilst working for the respondent in duties that involved prolonged neck flexion.
The applicant had pain and numbness over the base of the neck that intermittently radiated into the interscapular area. There had been no improvement in her symptoms over time. She has also had bilateral shoulder complaints with the left worse than the right.
Dr Suttor reported that the applicant had a full range of movement in her neck, but she complained that fine flexion exacerbated her symptoms more than any other movement. There were no neurological abnormalities. The doctor suspected that the applicant’s shoulder joint pathology was causing the symptoms.
In a report dated 28 June 2019, Dr Suttor noted that the applicant had pain in her left shoulder despite having two operations and she had referred pain from the axial neck region to the top of her shoulder. On examination, the doctor observed a full range of neck movement. He recommended a C5 nerve root injection.
Clinical notes of Con Bonovas
The clinical notes of Con Bonovas, physiotherapist, commence on 5 February 2020. He recorded that the applicant had pain, stiffness and tenderness in the cervical and thoracic spines following a work-related injury. He saw the applicant on only three occasions. The notes are of little assistance regarding the current dispute.
Report of Dr Thomson
Dr Thompson, injury management consultant, reported on 29 April 2019. He recorded that the applicant had sustained an acute onset of left shoulder pain on 10 May 2018 due to too much lifting from work. The applicant denied having any prior symptoms. The doctor noted that the applicant had left shoulder surgery on 13 December 2018 and 14 February 2019. The applicant was working for 25 hours per week in suitable duties.
Dr Thompson focused his examination on the applicant’s shoulders. He did not examine her neck and he was not provided with copies of the MRI scans. The doctor diagnosed a left supraspinatus tear with two operations, and he accepted that the applicant had not recovered from her injury.
Reports of Dr Stephenson
Dr Stephenson reported on 18 February 2020. He recorded that the applicant worked full time for the respondent for five to six years, averaging 40 to 45 hours a week. Her duties involved a lot of heavy lifting of large plastic tubs of containers each containing eight chickens. The tubs weighed 12 kg to 15 kg.
The doctor was provided with a description of the applicant’s duties that largely mirrors the applicant’s initial statement. He noted that the applicant would season and stuff chickens, tie the legs together and place them on a conveyor. She handled between 50 and 100 chickens per hour depending on the line. She also removed chickens from tubs on pallets and placed them on the conveyor belt for the chiller. She had to lift heavy chickens repeatedly, weighing from 1 kg to 12 kg or 15 kg.
Dr Stephenson noted that the applicant had undergone two operations on her left shoulder, and she had three stents inserted in her heart. She had declined to have the neck injection that had been recommended by Dr Suttor.
On examination, the doctor noted that she had an asymmetric loss of the range of motion in her neck but there was no clinical evidence of radiculopathy. He noted a restricted range of motion in the applicant’s left shoulder and reduced grip strength in the left hand, but there was no abnormality in the right shoulder.
Dr Stephenson did not provide a diagnosis, but he was aware of the findings in the MRI scans. He agreed that the applicant’s employment was the main contributing factor to her left shoulder and neck condition and stated that the applicant was unfit for her pre-injury duties. He assessed 7% whole person impairment of the cervical spine and 10% whole person impairment of the left upper extremity (shoulder) for a combined total of 16% whole person impairment due to injury on 10 May 2018. There was no impairment due to scarring and he declined to make a deduction in accordance with s 323 of the 1998 Act.
For the purposes of his report dated 31 August 2020, Dr Stephenson reviewed extracts from the clinical notes of Dr Hakimi and the reports of Dr Suttor and Associate Professor Shatwell.
Dr Stephenson indicated that unlike Associate Professor Shatwell, he found an asymmetric loss of motion in the applicant’s cervical spine which justified a Category II diagnosis and assessment. He stated that Associate Professor Shatwell had failed to comment on the range of flexion and extension of the neck, which was of relevance.
Dr Stephenson noted that the MRI scan showed the potential for nerve root compromise at the left C5 nerve root, consistent with the applicant’s complaints of discomfort that extended from her neck to the left side over the left shoulder. He agreed that it was likely that the applicant suffered some aggravation of pre-existing cervical spondylitis and that her employment was a substantial contributing factor to her neck symptoms.
Report of Associate Professor Shatwell
Associate Professor Shatwell reported on 15 June 2020. He noted that the applicant developed gradual left shoulder and posterior neck pain about 2 years earlier. Her duties involved “a great deal of manual lifting work” and her shoulder issues came to a head in
May 2018. She had undergone two left shoulder surgical procedures and she had been unable to return to work. The applicant had been referred to Dr Suttor before her shoulder surgery and he thought that her neck pain was related to degenerative changes rather than any nerve root impingement. The applicant had declined to have a cervical spine injection.Associate Professor Shatwell recorded that the applicant had pain in her left shoulder and in the posterior part of the neck which bothered her intermittently. She had difficulty standing for long periods, sitting for more than 30 to 60 minutes and she could not carry more than 2 kg. She was still able to perform household tasks.
On examination, the Associate Professor noted that neck movements were approximately 80% of the range. She had pain at the extremes of movement but there was no radiation of pain into the upper limbs or wasting in the arms. There was symmetrical rotation and lateral flexion. He noted that the MRI scan showed multilevel mild spondylosis with possible impingement on the left C5 nerve root, but there was no clinical evidence of this.
Associate Professor Shatwell diagnosed chronic tendinosis of the left rotator cuff caused by repetitive lifting and bending at the respondent. He believed that the scan findings were consistent with chronic repetitive lifting of heavy loads weighing at least 15 kg and lifting away from the body. He considered that she was totally unfit for her pre-injury employment, but she would be able to manage supervisory work with a limited lifting capacity.
Associate Professor Shatwell assessed 6% whole person impairment of the applicant’s left upper extremity, but there was no impairment of the applicant’s cervical spine because she did not injure it. He commented that there was no asymmetry of motion in the cervical spine on movement to allow any impairment and her radicular complaints could not be verified on examination or in the diagnostic tests.
APPLICANT’S SUBMISSIONS
The applicant’s counsel, Mr Adhikary, submits that the dispute in this matter is whether the applicant suffered an aggravation of the disease process in her cervical spine in terms of
s 4(b)(ii) of the 1987 Act. The authorities confirm that one must look at the evidence as a whole.Mr Adhikary submits that in her first statement, the applicant described the nature of her repetitive duties and the problems that she experienced in her left shoulder and neck. Her claim was accepted by the insurer and she ceased work in July 2019.
Mr Adhikary submits that there was reference to cervical radiculopathy in the Argyle Street Medical Centre notes on 23 July 2007, but there is no corresponding consultation entry. The report of Dr Hakimi dated 9 October 2020 recorded the issues that the applicant had with her left shoulder and neck, and this evidence supports the applicant’s claim.
Mr Adhikary submits that on 4 June 2018, Dr Hakimi noted that the applicant had restriction of movement in her left shoulder and neck which she attributed to an injury at work. This entry is consistent with the doctor’s report, is contemporaneous, and confirms a causal connection. Thereafter the applicant complained of neck symptoms.
Mr Adhikary submits that Dr Suttor recorded a history of neck pain for two years. He accepted that the applicant had axial neck symptoms, so his opinion is consistent with that of Dr Hakimi. Dr Suttor noted that the applicant had radiological evidence of impingement, but he suspected that the shoulder joint pathology was more responsible for her symptoms. In June 2019, the applicant still had neck symptoms, so Dr Suttor recommended a C5 nerve root injection.
Mr Adhikary submits that Mr Bonovas recorded that the applicant had had pain in her neck and upper back for a few years. Her pain was constant.
Mr Adhikary submits that there was no mention of the applicant’s neck in the initial certificate and the certificate dated 12 June 2018, but Dr Hakimi added the words “cervical neck pain (radiculopathy)” in her certificate dated 4 June 2018. There was refence to the applicant’s neck in the remaining certificates, which are consistent with the clinical notes.
Mr Adhikary submits that Dr Stephenson obtained a history from the applicant and was assisted by the letter of instructions. There is no dispute regarding the nature of the applicant’s duties and the history is consistent with the evidence. The doctor confirmed that the applicant sustained an injury to her neck and left shoulder as a result of her duties and her employment was the main contributing factor.
Mr Adhikary submits that Dr Stephenson noted that his examination findings differed from those of Associate Professor Shatwell. He found asymmetric loss of range of motion and the MRI scan showed disc pathology at C5. Dr Stephenson agreed that there had been an aggravation of the mild degenerative disc disease at C3/4 and C4/5 consistent with
s 4(b)(ii) of the 1987 Act.Mr Adhikary submits that Dr Owler considered that the applicant’s symptoms were due to the left shoulder pathology, but his opinion does not negate the possibility of a neck injury. He did not comment on any aggravation of the neck pathology.
Mr Adhikary submits that Associate Professor Shatwell recorded a history of left shoulder and neck pain of two years duration and he noted that the applicant’s neck symptoms had persisted. He accepted that the applicant’s symptoms were related to her employment, meaning that her neck symptoms were also related.
Mr Adhikary submits that Associate Professor Shatwell stated that there was no impairment in the cervical spine because the applicant did not injure her neck. He did not give any reasons for his opinion and his statement was merely an “Ipse dixit”. There is no evidence to suggest any other cause for the applicant’s neck symptoms. One can be satisfied that in light of the applicant’s complaints, treatment and the views of Drs Hakimi, Suttor and Stephenson that the applicant sustained an injury to her neck at work.
In reply, Mr Adhikary submits that there is no evidence that suggests that the applicant’s neck condition was related to the episode in 2007. The fact that the applicant had a full range of movement when examined by Dr Suttor and Dr Owler does not mean that she did not injure her neck.
Mr Adhikary submits that the respondent has not adduced any evidence to challenge the applicant’s description of her duties. Dr Siddiqui treated the applicant’s general health issues and he was not treating her for her workers compensation injuries. This explains the absence of any record of neck complaints in his notes.
RESPONDENT’S SUBMISSIONS
The respondent’s counsel, Mr Baker, submits that the applicant provided a very general description of her duties in her initial statement, using words such as “huge” and “reasonably heavy chickens”. She said that the chickens weighed 1 kg each with slight variations, suggesting that the weights varied from 700 g to 1.2 kg. She lifted tubs “at times”. They weighed about 20 kg, but she lifted these with assistance.
Mr Baker submits that the applicant claims that if she keeps her neck flexed, she experiences neck pain, However, there is no history of her having to continuously lean forward at work or of developing symptoms in those circumstances.
Mr Baker submits that some of the terminology used in the applicant’s second statement suggests that she has an intimate knowledge of medicine. She claimed that her neck was painful all of the time, but she did not say that in her first statement. She indicated that she had difficulty sleeping due to her neck pain, but in her first statement, she claimed that her left shoulder caused such problems. The applicant also stated that her condition had deteriorated, but she was no longer working. Her comment that her pain was caused by performing “repetitive work in fixed positions for long hours” is a generic description to cover the field, and there is no medical evidence regarding any neck surgery.
Mr Baker submits that the Argyle Street Medical Centre notes show that the applicant had cervical radiculopathy on 23 July 2007, she was prescribed anti-inflammatory medication, and she was referred to Ms Fong and Mr Shilson-Josling. There was no mention of any neck symptoms when the applicant told Dr Siddiqui about her left arm pain on 9 May 2018 or during the subsequent consultations.
Mr Baker submits that on 31 January 2021, the applicant saw Dr Siddiqui about a coronary condition. The doctor noted that the applicant still had chest and neck pain, but this related to her cardiac issues. Dr Siddiqui has treated the applicant for a long time, and he did not record any neck issues.
Mr Baker submits that when the applicant saw Dr Hakimi on 29 May 2018, she only complained about her left shoulder, and the doctor noted that the applicant’s neck was normal. The doctor referred the applicant to Dr Gupta, but there are no reports from that doctor in evidence. On 4 June 2018, the physiotherapist in the practice recorded that the applicant had been troubled by left shoulder pain for a few months, but there was no mention of the applicant’s neck. This entry does not accord with the entry made by Dr Hakimi on the same date.
Mr Baker submits that the applicant was referred to a shoulder specialist, Dr Yalizis, and he did not mention the applicant’s neck in any of his reports. Dr Owler recorded a slightly different history and he concluded that the applicant’s symptoms were more likely related to her shoulder pathology. There was no reference to any neck pain. There is no complaint of neck pain in the evidence to corroborate the applicant’s claim until January 2021.
Mr Baker submits that the physiotherapist recorded symptoms of upper back and neck pain on 5 February 2020, but this was after the applicant had her cardiac surgery. It is true that the applicant had past problems in 2007, but the suggestion that her condition had worsened is inconsistent with the Argyle Street Medical Centre notes. The physiotherapy treatment had provided good relief.
Mr Baker submits that Dr Suttor recorded a different history, namely axial neck pain of two year’s duration. The doctor noted a full range of movement and there were no neurological signs in the upper limbs. He attributed the applicant’s symptoms to the left shoulder pathology. In his second report, Dr Suttor noted that the applicant had a full range of movement in her neck. He suggested a C5 injection to see if the neck was responsible for her symptoms, but the applicant declined.
Mr Baker submits that the first certificate of Dr Hakimi referred to the applicant’s right shoulder, so this must have been a typographical error. The certificate dated 4 June 2018 has a handwritten alteration that includes reference to the applicant’s neck and there was no mention of the applicant’s neck in the certificate dated 12 June 2018. The reference to the applicant’s neck in the subsequent certificates is in a larger font, which is unusual.
Mr Baker submits that Dr Stephenson recorded a history that the applicant lifted 12 kg to
15 kg of chickens and only processed whole chickens, but this is inconsistent with her statements. He had access to the reports of Drs Owler and Suttor, but he made no mention of their opinions regarding the relationship between the applicant’s neck condition and her left shoulder.Mr Baker submits that the doctor did not record details of his examination and no report of his clinical findings in the body of the report. He referred to asymmetric loss of the range of motion, but this could only relate to the applicant’s left shoulder, and he found no evidence of radiculopathy. One could not be convinced by his report, and this was compiled shortly after the first mention of any neck pain.
Mr Baker submits that in his second report, Dr Stephenson commented on the evidence of the applicant’s doctors. There was limited reference to the extracts from Dr Hakimi’s notes and there was no mention of any restrictions. Dr Suttor found no restriction of movement in the applicant’s neck.
Mr Baker submits that Associate Professor Shatwell reported that the applicant’s condition had improved and there was no great restriction in her neck when he examined her. Even if Dr Stephenson found asymmetric motion in the applicant’s neck, this was after she had cardiac surgery. Dr Stephenson’s history regarding the persistence of symptoms is contrary to the histories recorded by Drs Suttor, Owler and Shatwell, all of whom found a full range of motion.
Mr Baker submits that Dr Stephenson was not provided with the clinical notes from the Argyle Street Medical Centre, so he was unaware of the 2007 episode. He made no deduction pursuant to s 323 of the 1998 Act despite the history of longstanding issues and the MRI scan findings. If there was an aggravation of the neck pathology, it occurred on or about the time that the applicant had the triple stenting and reported neck pain.
REASONS
Did the applicant sustain injury to her cervical spine and was her employment the main contributing factor? – s 4(b)(ii) of the 1987 Act
Section 4 of the 1987 Act defines injury as follows:
“In this Act-
Injury-
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined”.
In order to be satisfied that an injury has occurred, there must be evidence of a sudden
or identifiable pathological change: Castro v State Transit Authority (NSW)[4], or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd [5], “the word ‘injury’ refers to both the event and the pathology arising from it”.[4] [2000] NSWCC 12; 19 NSWCCR 496.
[5] (2003) 25 NSWCCR 422, [429].
The issue of causation must be determined based on the facts in each case and the application of the common-sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[6].
[6] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
Although the High Court in Comcare v Martin[7] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the facts of the case.
[7] [2016] HCA 43, [42].
The applicant bears the onus of establishing that he sustained an injury, and in order to discharge that onus, I must feel an actual persuasion of the existence of that fact: Department of Education & Training v Ireland[8].
[8] [2008] NSWWCCPD 134 (Ireland), [89].
The applicant relies on s 4(b)(ii) of the 1987 Act, namely an aggravation, acceleration, exacerbation, or deterioration in the course of employment of the degenerative disease in her cervical spine.
What constitutes an aggravation of a disease process was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[9]. His Honour stated:
“The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient”.
[9] [1964] HCA 34; 110 CLR 626 (Semlitch), [369].
Prior to the 2012 amendments, s 4(b)(ii) of the 1987 Act provided that the employment had to be a contributing factor to the aggravation of a disease, and that being the case, in accordance with s 9A of the 1987 Act, it had to be a substantial contributing factor to the aggravation as opposed to the disease itself. This was confirmed by Burke CCJ in Harpur v State Rail Authority(NSW)[10] and in Cant v Catholic Schools Office[11]where he stated:
… the employment is required to substantially contribute to the aggravation and not the pre-existing condition other than by way of such aggravation. The frame of reference is the contribution to the aggravation not to the overall disease.”
[10] [2000] NSWCC 3; (2000) 19 NSWCCR 256, [79].
[11] [2000] NSWCC 37 (Cant), [23].
However, s 4(b)(ii) of the 1987 Act provides that the employment must be the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. Therefore, as in Cant, the employment needs to be the main contributing factor to the aggravation of the disease rather than the main contributing factor to the disease itself. This was confirmed by Deputy President Snell in AV v AW[12], where he stated:
“The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[13]
[12] [2020] NSWWCCPD 9 (AV v AW).
[13] AV v AW, [78].
The principles of statutory interpretation are well established and have been confirmed by the High Court in Project Blue Sky v Australian Broadcasting Authority[14] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)[15], and in the Commission in Hesami v Hong Australia Corporation Pty Ltd[16].
[14] [1998] HCA 28; 194 CLR 355.
[15] [2009] HCA 41; 239 CLR 27 (Alcan).
[16] [2011] NSWWCCPD 14.
In order to understand what “main contributing factor” means, one must interpret the ordinary and grammatical meaning of the text, the language and structure of the legislation, the legal and historical context, and the purpose of the statute in order to come to a reasonable conclusion as to its meaning and application
A consideration of the text can be assisted by reference to dictionary definitions of the words used in the legislation. According to the online version of the Macquarie Dictionary, “main” means “chief” or “principal”, suggesting a higher degree that a “substantial contributing factor”.
There is no dispute that the applicant has spondylitic changes in her cervical spine, especially at C4/5, with radiological evidence of impingement of the nerve root at C5. The pathology was confirmed by MRI scan taken on 18 June 2018.
What I need to determine is whether these degenerative changes were aggravated, accelerated, exacerbated, or deteriorated during the course of her employment on
10 May 2018 (deemed).
In her first statement, the applicant described the heavy and repetitive nature of her duties. Although Mr Baker made submissions regarding the nature of the duties and the weights of the chickens that the applicant processed, no evidence has been adduced by the respondent to challenge the applicant’s evidence. The evidence shows that each chicken weighed in the vicinity of 1 kg, and if the applicant lifted tubs weighing up to 20 kg, she did so with the assistance of co-workers.
In both statements, the applicant claimed that she experienced pain in her neck when she kept her head or neck flexed for long periods, but she was able to move her head to the left and right. She did not suggest that her neck symptoms occurred at work or was the cause of her injury. It seems that the applicant attributed her injury to repetitive work in fixed positions for long hours. Whilst one can understand the repetitive nature of her work, she did not explain how she was required to maintain a fixed position for long hours. Of course, the question of causation is largely a medical issue.
Mr Baker submits that there was no history of the applicant having to continuously lean forward at work or of developing symptoms in those circumstances. There is merit in this submission when one has regard to the applicant’s statements, but there were histories recorded by the applicant’s treating doctors that are consistent with her statements.
In her report dated 9 October 2020, Dr Hakimi stated that sitting for long hours and bending of the neck together with repetitive shoulder movements had caused rotator cuff tendinosis and degeneration in the applicant’s neck. Similarly, Dr Suttor recorded that the applicant’s axial neck pain had developed at work where she performed duties that involved prolonged neck flexion, so presumably both doctors were told that she had to bend her neck for long periods.
The two statements relied upon by the applicant were signed on the same date, but it seems that they were taken at different times. There are certainly some inconsistencies in the two statements as suggested by Mr Baker, such as the reference to constant pain and difficulties sleeping due to either her left shoulder or her neck, but that could largely be due to a lack or care and precision by the person who drafted the statements. It begs the question why the two statements could not have been combined into one statement.
It is true that the statements contain medical terms that I accept would not be regularly used by the applicant in her day to day conversations. In my view, her statements have been poorly drafted and do not properly address the circumstances that gave rise to the applicant’s alleged neck injury. In those circumstances, less weight can be given to this evidence.
The clinical notes of the Argyle Street Medical Centre lack any reference to the applicant’s neck symptoms. There was a reference to cervical radiculopathy on 23 July 2007 in the summary at the beginning of the notes, but the entry of that date lacks any content. There were some references in April and May 2018 to the applicant’s left shoulder injury that had been caused by lifting at work, but there is no reference whatsoever to any neck complaints or to any injury to that part of her body. The remaining entries identified general health issues, including the applicant’s coronary condition. There was reference to the applicant still having neck and chest pain, but the cause of the neck symptoms was not disclosed. Therefore, one cannot draw a conclusion one way or another.
In decisions such as Davis v Council of the City of Wagga Wagga[17], Nominal Defendant v Clancy[18], King v Collins[19]and Mastronardi v State of New South Wales[20], the Court of Appeal cautioned against placing too much weight on the clinical notes of treating doctors, given their primary concern was treatment. In the Court’s view, the notes rarely, if ever, represent a complete record of the exchange between a busy doctor and the patient.
[17] [2004] NSWCA 34.
[18] [2007] NSWCA 349.
[19] [2007] NSWCA 122.
[20] [2009] NSWCA 270.
This also was confirmed in Winter v NSW Police Force[21], where Deputy President Roche stated:
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34] – [36]).”[22]
[21] [2010] NSWWCCPD 12 (Winter).
[22] Winter, [183].
This might well have been the case in respect of these clinical notes, and this is reinforced by the entry on 1 June 2018, when Dr Siddiqui noted that the applicant was seeing Dr Hakimi for her claim. This might well explain the lack of or minimal reference to the applicant’s left shoulder problems after June 2018, and the total absence of any neck complaints.
Therefore, the notes of Dr Siddiqui are of little probative value, and I doubt that they would have been of any assistance to Dr Stephenson regarding the existence of pre-existing pathology for the purposes of his assessment of whole person impairment.
Despite such reservations regarding the Argyle Street Medical Centre notes, the same cannot be said about Dr Hakimi’s notes. They provide a temporal element and have an important part to play in the evidentiary matrix. In my view, these notes represent the most accurate, reliable, and persuasive evidence.
On 28 May 2018, Dr Hakimi recorded details of the nature of the applicant’s duties, which involved “a lot of manual lifting and repetitive work in her job on a daily basis”. This history is consistent with the applicant’s evidence and it has not been challenged by the respondent. The doctor examined the applicant’s neck and found no clinical evidence of any abnormality. The certificate issued on this date only referred to the applicant’s right shoulder, which is obviously a typographical error. No inference can be drawn regarding the absence of a report from Dr Gupta, as there is no evidence that the applicant consulted this doctor.
On 4 June 2018, Dr Hakimi found restriction of movement in the applicant’s neck, and she was satisfied that the applicant had injured her left shoulder and neck at work. The doctor referred the applicant for an MRI scan, so presumably she had some concerns about the applicant’s cervical spine. The scan showed mild spondylosis and impingement on the C5 nerve root.
The certificate issued on 4 June 2018 included a handwritten addition “and cervical neck pain (radiculopathy)”, which no doubt explains the referral for an MRI scan. The lack of any reference to the applicant’s neck by the physiotherapist on 4 June 2018 does not negate the history recorded by Dr Hakim on the same date.
The absence of any reference to the applicant’s neck in the certificate dated 12 June 2018 would seem to be an oversight by the doctor, when this certificate is viewed in conjunction with the subsequent certificates that mentioned the applicant’s neck.
There were regular references in the clinical notes to the applicant’s neck symptoms in the latter half of 2018, and eventually she referred the applicant to Dr Suttor for management of her neck pain.
There were further complaints of neck symptoms recorded in 2019. In August 2019, Dr Hakimi noted that the applicant had neck pain at night, which accords with her second statement.
In her report dated 9 October 2020, Dr Hakimi described the applicant’s duties that involved repetitive picking, packing, and lifting of tubs of chicken into a conveyer daily. So, she had a full appreciation of the nature of the applicant’s duties. She attributed the applicant’s left rotator cuff pathology and her cervical spondylosis to the nature of her employment duties. She referred to the aggravation of pain, rather than an aggravation of the cervical degeneration, so it is unclear whether she was of the view that the applicant’s duties aggravated a pre-existing degenerative condition.
Dr Hakimi’s certificates included a summary of the MRI scan findings under the “Diagnosis of the work-related injury/disease” heading, so there is little doubt that the doctor was satisfied that the applicant had injured her neck at work. I see nothing sinister about the different sized font, because it seems that the doctor merely cut and pasted this description from the MRI scan report and also included this in his referral letters.
The reports of Dr Yalizis, Mr Bonovas and Dr Thompson are of no assistance to the current dispute. There are only five reports from Dr Yalizis, and they cover the period from
11 September 2018 to 4 April 2019. The doctor’s focus as a shoulder surgeon was to treat the applicant's rotator cuff pathology. The reports do not include a detailed history of her injury, treatment, or symptoms. They merely record the applicant’s progress following her left shoulder surgery.Mr Bonovas’ notes merely confirm that the applicant had pain, stiffness and tenderness in her neck and upper back in 2020. Dr Thomson did not obtain a history about any neck injury and he did not examine the applicant’s neck, so his report is of no assistance.
Both Drs Owler and Suttor believed that the applicant's pain more likely emanated from her left shoulder rather than her neck. Dr Owler’s findings on examination of the applicant’s neck were not recorded, although he noted that there was no neurological deficit. Dr Suttor reported that the applicant had axial neck pain for two years, but she had a full range of movement in her neck, and there was no neurological abnormality.
Dr Owler acknowledged the possibility that the stenosis at C4/5 could be the cause of left shoulder symptoms, and Dr Suttor suggested that the applicant have a C5 nerve root injection. So, both doctors seem open to the suggestion that the applicant could have some neck pain and they did not specifically rule out the neck as being the source of the applicant’s symptoms. I am mindful that their reports were completed in 2018 and 2019, so one has to use caution when comparing their examination findings to the more recent clinical findings of Dr Stephenson and Associate Professor Shatwell.
Dr Stephenson recorded that the applicant lifted eight chickens at a time in tubs that weighed 12 kg to 15 kg. This might be an exaggeration, and we know from the applicant’s statement that she was provided with assistance when lifting heavier tubs. Nevertheless, the doctor was also aware of the nature of the applicant’s duties that mirrored the description in her unchallenged statements.
Dr Stephenson’s report is poorly set out, but on closer inspection, his findings on examination of the applicant’s neck are recorded on page 5 of his report as “asymmetric loss of the range of motion and non-verifiable radicular complaints”. He also referred to his
clinical findings in respect of the applicant’s left shoulder lower down on the same page. Dr Stephenson failed to provide a diagnosis in his first report, but he confirmed that the applicant’s employment was the main contributing factor to her left shoulder and neck condition.In his second report, Dr Stephenson commented on the MRI scan findings. In my view, his failure to engage with the extracts from Dr Hakimi’s notes is of no major concern, given that those extracts merely identified a series of neck complaints in mid-2018 and confirm, rather than negate, the applicant’s evidence regarding her neck pain.
Dr Stephenson had regard to Dr Suttor’s reports and his comments about the potential for nerve root compression at the C5 nerve root. Dr Stephenson thought that this pathology had been aggravated and that:
“there is a sufficient evidence that not only is there asymmetric loss of range of motion of the cervical spine but also the evidence of the imaging study demonstrating at least a disc, which has the potential for nerve root compromise at the left C5 nerve root which would account for the level of discomfort that is extending from the neck to the left side over the left shoulder”[23].
He diagnosed an aggravation of pre-existing cervical spondylitis and he was satisfied that the applicant’s employment was a substantial contributing factor to her neck symptoms.
[23] Application, p 40.
Although Mr Baker submits that Dr Stephenson examined the applicant shortly after she was diagnosed with cardiac issues, the applicant was first referred to a cardiologist by Dr Siddiqui on 8 April 2019. It seems that she did not see Dr Renganathan until 10 July 2019. This was seven months before the applicant was seen by Dr Stephenson.
There is an ECG in evidence that was conducted on 10 July 2019[24]. Further, in Dr Renganathan’s report dated 10 July 2019, the doctor noted that the applicant’s past medical problems included left shoulder surgery and cervical radiculopathy[25]. This doctor, and the applicant’s other cardiologist, Dr Gunalingam, did not report any neck symptoms as a consequence of her cardiac condition in any of their reports. In my view, the comment by Dr Siddiqui that the applicant still had neck and chest pain on 31 January 2021 is nothing more than a report of symptoms, and there was no comment on causation.
[24] Application, p 102.
[25] Application, p 105.
The only doctor to challenge the applicant’s claim of a neck injury is Associate Professor Shatwell. He noted that the applicant’s employment involved “a great deal of manual lifting work”, but he did not mention that the work was repetitive. Nevertheless, he was provided with a large medical file, including three reports from Dr Hakimi dated 9 July 2018,
15 April 2019 and 6 June 2019, which are not in evidence, and more importantly, the report of Dr Stephenson dated 18 February 2020. Therefore, it could not be said that he was unaware of the full extent of the applicant’s duties.Mr Baker submits that Associate Professor Shatwell found “no great restriction” in the applicant’s neck. However, the Associate Professor acknowledged the presence of some restriction in movement in the applicant’s neck with pain on extremes, which differs from the earlier findings of Drs Owler and Suttor, but he found symmetrical rotation and lateral flexion. According to Dr Stephenson, the Associate Professor’s report was lacking because he did not record his findings in respect of the range of cervical flexion and cervical extension.
Associate Professor Shatwell advised that there was no injury to the applicant’s cervical spine, but he gave no explanation whatsoever for this conclusion. He merely stated that he found no asymmetry of motion in the cervical spine and noted that the applicant’s radicular complaints could not be verified on examination or in the diagnostic tests. His opinion regarding the lack of clinical evidence of radiculopathy accords with that of Dr Stephenson, but the Associate Professor did not comment on the significance of the MRI scan finding of impingement at C5.
The Associate Professor did not engage with Dr Stephenson’s opinion on causation or address whether the applicant suffered an aggravation of the cervical spondylosis during the course of her employment at the respondent.
Finally, he did not comment on Dr Suttor’s recommendation that the applicant have a C5 nerve injection. He merely stated that he would not provide an assessment of permanent impairment because there was no neck injury. I agree that this comment is a mere “ipse dixit”. So, there are some major issues regarding the report of Associate Professor Shatwell, and in my view the evidence of Dr Stephenson carries more weight.
In summary, the applicant claims that she injured her neck during the course of her employment as a result of having to maintain a fixed posture for long periods. Her statements regarding the system of work has not been challenged by any evidence adduced by the respondent. Her evidence is corroborated by Dr Hakimi, who attributes her complaints to cervical pathology that was caused, or perhaps aggravated, by her employment duties. The MRI scan showed pathology in the applicant’s cervical spine with impingement on the C5 nerve root, which Dr Stephenson considered to be a significant finding, even though no doctor has found clinical evidence of radiculopathy. Dr Suttor also seemed to have had some concerns about possibility of impingement at C5.
I have already expressed reservations regarding the reports of Drs Owler and Suttor. The clinical notes from the Argyle Street Medical Centre and Mr Bonovas are of no assistance. Associate Professor Shatwell found objective evidence of a restriction of neck movement and although he dismissed any injury to the applicant’s neck, he gave no reasons for doing so, so his opinion can be discounted on the basis of the principles discussed in Hancock v East Coast Timber Products Pty Limited[26]. The applicant’s medical case is not particularly strong, but nevertheless there is still evidence that supports her claim from Drs Stephenson and Hakimi.
[26] [2011] NSWCA 11 (Hancock).
In the circumstances, having regard to the common-sense test in Kooragang and the principles discussed in Ireland, Semlitch, Cant and AW v AV, I accept that the pre-existing degenerative disease in the applicant’s cervical spine was made “more grave, more grievous or more serious”, such that the applicant suffered an injury in the form of an aggravation of a pre-existing degenerative disease.
Although Dr Stephenson indicated in his first report that the applicant’s employment was the main contributing factor to her condition, and a substantial contributing factor in his second report, he is the only doctor to address this requirement.
Given that there is no satisfactory evidence to suggest any other cause for the applicant’s neck symptoms, I am satisfied that the applicant’s employment was the main contributing factor to an aggravation, acceleration, exacerbation or deterioration of the degenerative neck condition in accordance with s 4(b)(ii) of the 1987 Act.
Quantification of whole person impairment
I will remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment of the whole person impairment of the applicant’s left upper extremity (shoulder) and cervical spine due to injury sustained on 10 May 2018 (deemed).
FINDINGS
The applicant sustained injury to her left shoulder and cervical spine arising out of or in the course of her employment with the respondent on 10 May 2018 (deemed).
The applicant’s employment was the main contributing factor to her injury.
ORDERS
I remit this matter to the President for referral to a Medical Assessor for assessment of the whole person impairment as follows:
(a) Date of injury: 10 May 2018 (deemed) – disease.
(b) Body system / part:
(i)Left upper extremity (shoulder), and
(ii)Cervical spine.
The documents to be reviewed by the Medical Assessor are:
(a) Application and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents received on 22 February 2021.
Glenn Capel
MEMBER
11 March 2021
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