Morton v Secretary, Department of Transport

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Morton v Secretary, Department of Transport [2023] NSWPIC 556
APPLICANT:	John Morton
RESPONDENT:	Secretary, Department of Transport
MEMBER:	John Turner
DATE OF DECISION:	20 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; injury to the cervical spine and both shoulders; injury to the cervical spine disputed; injury to the shoulders accepted; claim for permanent impairment compensation; sections 4 and 66; Kooragang Cement Pty Ltd v Bates and Mason v Demasi applied; Held – award for the respondent in respect to the claimed injury to the cervical spine; matter remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of both upper extremities (shoulders) and scarring/TEMSKI for whole person impairment with a deemed date of injury of 9 October 2020.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent in respect to the claimed injury to the cervical spine. The Commission orders: 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 9 October 2020 (deemed) – Disease. (b) Body systems / parts: i. right upper extremity (shoulder); ii. left upper extremity (shoulder), and iii. scarring/TEMSKI (both shoulders). (c) Method of Assessment: Whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents, and b. Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Mr John Morton, the applicant, was employed on a full-time basis as a train guard by the Secretary, Department of Transport, the respondent.
The applicant filed with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (ARD) on 2 August 2023 in which, as amended, it is relevantly alleged that he sustained injury to both his shoulders and cervical spine as a result of the nature and conditions of his employment as a train guard. The applicant relies on a deemed date of injury of 9 October 2020.
The applicant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 in respect to the cervical spine, left and right upper extremities (shoulders) and scarring/TEMSKI relying on a date of injury of 9 October 2020.
It is not disputed that the applicant sustained injury to both his shoulders with a deemed date of injury of 9 October 2020.
The applicant underwent surgery on both shoulders with the right shoulder being operated on first and subsequently the left shoulder.
The respondent disputes the alleged injury to the cervical spine as a result of the nature and conditions of employment. The applicant does not claim that he has suffered a consequential condition of the cervical spine as a result of the accepted shoulder injuries.

ISSUES FOR DETERMINATION

The issues to be determined are:
(a)    injury to the cervical spine;
(b)    whether employment with the respondent was a substantial contributing factor to the alleged injury to the cervical spine;
(c)    whether employment with the respondent was the main contributing factor to the alleged injury to the cervical spine, and
(d)    whether employment with the respondent was the main contributing factor to either the contraction of any disease or the aggravation, acceleration, deterioration or exacerbation of any underlying condition involving the cervical spine.
It is not disputed that the applicant sustained injury to both his shoulders with a deemed date of injury of 9 October 2020.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
19 September 2023. Mr Ty Hickey, counsel, instructed by Ms Zahra Panju, solicitor, appeared for the applicant, who was present. Mr Josh Beran, counsel, appeared for the respondent, instructed by Mr Daniel Wilkins, solicitor. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence.

FINDINGS AND REASONS

Consideration and findings

The applicant bears the onus of proving on the balance of probabilities that he has sustained injury to his cervical spine as alleged. A commonsense evaluation of the causal chain is required to determine if the applicant has sustained injury to his cervical spine as alleged.[1]
[1] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
It is the applicant’s evidence that he worked for the respondent on four variations of trains being Silver Sets, Tangara, Millenniums and Waratahs and that as a train guard he repetitively opened and closed train doors approximately 200 times or more per day.
The Silver Sets required the operation of doors and driver communications by three spring loaded buttons mounted above head height. The applicant would stand in the doorway and when the train comes to a stop, he would raise his arms, firmly pressing and holding the button and releasing it to open the doors. He would then observe the passengers boarding and leaving the train and then raise his arms again and firmly press and hold a second button to close the train doors. As the doors are closing, his arm would remain raised observing passengers who may run towards the closing doors. If he observed a passenger, he would quickly open the doors again and repeat the process. When safe to do so, he would raise his arms again and tap a third bell button which alerted the driver that it was safe to depart. His arm would remain raised ready to tap the bell button again twice, which indicates to the driver to perform an emergency stop should the need arise.
On the Silver Sets the driver intercom and public address system also uses spring loaded buttons mounted at head height. The button needed to be continuously pressed when communicating with the driver and making announcements.
It is the applicant’s evidence that the operation of the Tangara trains is similar to that of the Silver Sets except that the driver intercom and public address system is mounted at waste height and utilises a handset similar to a telephone with a soft touch panel.
It is the applicant’s evidence that on the Millennium trains the spring-loaded door buttons are mounted to the left or right of the guard’s door at head height. The operation of the buttons requires a motion similar to a stop sign. These buttons are harder to press and need to be held on until the doors begin to open or close. The applicant’s arm would remain in this position in the event that passengers are seen running towards the train or until the train has safely left the platform. The driver’s intercom and public address system is a handset mounted at chest height. To use it, the applicant removed the handset from the cradle, pressed an activation button to make the announcement and then placed the handset back into the cradle.
It is the applicant’s evidence that Waratah trains have all the door control buttons, driver’s intercom and public address system mounted at chest height. The same safety requirements of standing in the doorway for the trains arrival and departure apply. The buttons are spring loaded and need to be firmly held in until the doors open or close. The applicant’s arms need to remain in the same position until the train safely left the platform. The driver’s intercom and public address system utilises a telephone handset similar to the Tangara and Millennium trains.
It is the applicant’s evidence that as a train guard, he was required to carry essential equipment in a backpack. The backpack would weigh approximately 5-7k and he would have to carry it every day to and from different locations and up and down various stairs at stations. He would pick up and put down this bag approximately 20 times per day. This also caused pain in his back over time.
It is the applicant’s evidence that he had been in pain for months prior to reporting his injury. He was experiencing pain in his shoulders, as well as stiffness and pain in his back and neck. Pins and needles and a burning sensation that would extend from both of his shoulders and down his arms. He attempted to manage the pain and discomfort with paracetamol, ibuprofen and hot and cold Ice packs. When he returned home after a day at work, he would sit and place cushions under his arms to rest them.
It is the applicant’s evidence that on 16 September 2020, he worked on a Millennium train. He was in excruciating pain in both shoulders and couldn’t carry on working. He called the respondent’s injury hotline and reported his situation.
The applicant relies on three medico-legal reports of Dr Bodel, orthopaedic surgeon, dated 21 June 2022, 19 April 2023 and 23 June 2023
Dr Bodel in his report of 21 June 2022 records a history that the applicant began to develop arm pain in both arms from the shoulders to the wrists and hands in 2020. The pain gradually worsened and became unbearable on 16 September 2020. The applicant provided a history to the doctor that in the course of his employment on 16 September 2020 he had to operate buttons whilst he was in a “Stop sign position”. He had such severe pain in his neck, both shoulder and arms that he could not continue working and reported the matter and logged it into the internal reporting system for injury.
The applicant then went to see his local doctor and an ultrasound of the right shoulder was performed and subsequently an ultrasound was performed.
Dr Bodel recorded that boarding and disembarking a train which is not parked at a station, for example in a holding yard, was difficult for the applicant. This observation by Dr Bodel seems to relate to the applicant’s ability to board and disembark trains following sustaining injury.
Dr Bodel records that on examination the applicant complained of pain in both shoulders.
Dr Bodel did not record any complaints in respect to the neck. The doctor’s examination of the applicant on 21 June 2022 included an examination of the neck which was normal with no restriction in range of motion, no localised tenderness and movement of the neck did not cause any pain in the neck or shoulders.
Dr Bodel concluded that the history of the injury is of a gradual onset of symptoms in both shoulders over a period of some months which became unbearably painful during the course of his work with the respondent on 16 September 2020. The doctor diagnosed injuries to both shoulders. The doctor did not mention any diagnosed injury to the neck.
Dr Bodel re-examined the applicant on 22 February 2023 providing a second report on
19 April 2023 in which the doctor summarised the applicant’s injuries as gradual onset of pain in both shoulder and consequential back injury.
Dr Bodel in his report of 19 April 2023 noted that at the time of his initial examination the applicant had made no mention of his back “but that apparently did come on in his neck and back gradually over a period of time associated with the original injury to his shoulders”.[2]
[2] ARD p. 48.
Dr Bodel observed that the applicant associated the onset of pain with the nature of his work as a guard noting that the older style carriages required him to reach above his head to a button or a series of buttons above the door of the guard’s carriage. The applicant reported to Dr Bodel that he developed increasing shoulder girdle pain, wrist and hand pain and then neck and upper back pain and it gradually worsened over a period of time throughout the middle part of 2020 and which became unbearable on 16 September 2020.
Dr Bodel records that on 16 September 2020 the applicant reported neck and shoulder girdle pain, bilateral arm pain, wrist and hand pain and pain in the upper part of his thoracic spine. The matter was recorded. The internal reporting system was activated and the matter reported to his supervisor and he then went home.
The applicant’s complaints on examination included neck pain.
On examination the applicant complained of tenderness in the trapezius muscles at the base of the neck on the right side and a reduced range of neck flexion, extension and rotation was observed on rotation to the left. There were no clinical signs of radiculopathy in either upper limb.
Dr Bodel accepted that the applicant had sustained consequential injuries to his back as a consequence of the nature and conditions of his work in general. The doctor also concluded that it is likely that the nature of the applicant’s work duties, particularly climbing in and out of the guard’s carriage when the train was not at a platform and the operation of overhead buttons put an undue strain on that region. The doctor accepted “that the ‘injury’ to the area which is a ‘consequential injury’ in this circumstance has arisen as a result of the nature and conditions of his work in general causing aggravation, acceleration, exacerbation and deterioration to that disease process”.[3]
[3] ARD p. 55.
Dr Bodel goes on to state in response to a separate question that “The primary ‘frank’ injury to the shoulders has put quite a considerable load on the neck and the back and has led to aggravation, acceleration, exacerbation and deterioration to that disease process”.[4]
[4] ARD p. 54.
Dr Bodel concluded that he was satisfied that the applicant’s employment was a substantial contributing factor to the injuries to the shoulders and the spinal injuries.
Dr Bodel provided to the applicant a supplementary report dated 23 June 2023 for which no additional examination of the applicant was conducted. Dr Bodel observed that the applicant developed a gradual onset of shoulder girdle pain and the nature of the work also involved him extending his back and reaching to undertake these activities, and in the view of
Dr Bodel, the back complaint is a consequential injury for that reason.
Dr Bodel opines that the causal link relates to the posture adopted when undertaking his work as a train guard. That in reality, the injury to the back is part of the mechanism which has caused the gradual onset of pain, initially in the shoulders and also in the back, rather than a consequential injury in the true sense. It takes into account the posture that he adopts when undertaking his normal tasks as a train guard, which has put a load on that area and rendered it symptomatic.
Dr Bodel in the supplementary report in effect only deals with injury to the back and not the alleged injury to the neck.
The applicant submits that whilst the opinion of Dr Bodel is convoluted, he has ultimately concluded that the applicant has developed an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent and not as a consequence of the accepted injuries to the shoulders. The respondent submits that in the opinion of
Dr Bodel the applicant sustained injury to his back as a result of the nature and conditions of his employment with the respondent and a consequential condition of the neck as a result of the injury to the shoulders. In the respondent’s submission there is no support from Dr Bodel for injury having been sustained to the cervical spine due to the nature and conditions of the applicant’s employment with the respondent. In the respondent’s submission the supplementary report of Dr Bodel dated 23 June 2023 is purely in respect to the back and adds nothing in respect to the neck.
I accept the respondent’s submission. Dr Bodel in his report dated 19 April 2023 describes the applicant as having sustained “consequential injuries” to his back as a consequence of the nature and conditions of his work in general. The doctor concluded that it is likely that the nature of the applicant’s work duties, particularly climbing in and out of the guard’s carriage when the train is not at a platform and the operation of overhead buttons put an undue strain on that region. The doctor accepted “that the ‘injury’ to the area which is a ‘consequential injury’ in this circumstance has arisen as a result of the nature and conditions of his work in general causing aggravation, acceleration, exacerbation and deterioration to that disease process”.
The doctor’s opinion is confused by the doctor’s reference to “consequential injuries” to the back. The doctor states, in respect to the back, that what he is referring to is injury as a consequence of the nature and conditions of the work duties not a consequential injury as a result of the accepted shoulder injuries. However, the doctor only refers to the back in this context and makes no reference to any injury having been sustained to the neck.
Dr Bodel in response to a separate question, being question 2, clearly and unambiguously states that in his opinion the injury to the shoulders had put “…quite a considerable load on the neck and the back and has led to aggravation, acceleration, exacerbation and deterioration to that disease process”.[5] Such an injury to the neck would be a consequential condition and the applicant does not allege in the ARD that he has sustained a consequential injury to his neck as a result of the accepted shoulder injuries. Dr Bodel’s supplementary report of 23 June 2023 does not assist the applicant as it only deals with injury to the back and not the alleged injury to the neck.
[5] ARD p. 54.
It is submitted on behalf of the applicant that the term “back” is not used by the applicant in its usual sense but rather to refer to the entire spine including the neck. I do not accept the applicant’s submission. There is no evidence that English is not the applicant’s first language. The terms “back” and “neck” are of common everyday usage with the difference between the neck and back being commonly known and understood. It is clear from the applicant’s statements as well as the medical evidence that the applicant understood the distinction between his neck and back and would use both words.
The applicant in his statement made 16 February 2023 uses both terms. At [31] the applicant states that he “...was experiencing…sstiffnessand [sic] pain in my back and neck”. At [42] the applicant states “At this time my doctor also referred me to physiotherapy who explained to me the connection between shoulder, neck and back pain.” At [57] the applicant states “On 22 April 2022, I reported to my exercise physiologist that I was experiencing a strain like feeling on the right side of my cervical spine.” At [58] the applicant stated “The pain is present on both the left and right sides of my cervical and lumbar spine.”
Dr Bodel in his report dated 21 June 2022 records that the applicant reported that on
16 June 2020 he had such severe pain in his neck, both shoulders and arms that he reported the matter, logged it into the internal reporting system for injury. Dr Bodel in his subsequent report of 19 April 2023 records that the applicant reported to him that he developed increasing shoulder girdle pain, wrist and hand pain and then neck and upper back pain and it gradually worsened over a period of time throughout the middle part of 2020.
The exercise physiologist, Abdul Baraka, in reporting to Dr Shahnaz on 22 April 2022 recorded that the applicant had been reporting a strain like feeling occurring on the right side of his cervical spine with resisted shoulder flexion movements.

David Yau, chiropractor, in a report dated 17 August 2022 records that the applicant initially mentioned neck pain on 25 November 2020.
It is the applicant’s evidence that before reporting his injury on 16 September 2020, he had been in pain for months prior. He was experiencing pain in his shoulders, as well as stiffness and pain in his back and neck.
The certificates of capacity which commence on 10 February 2022 do not refer to a neck injury.
The clinical notes of CHA Medical Centre Campbelltown record that the applicant attended on Dr Shahnaz on 15 September 2020 and 14 September 2020 in respect to his right shoulder.
On 24 August 2020 the applicant attended on Dr Shahnaz complaining of right shoulder pain. The doctor recorded that there was “generalised tenderness in the right upper trapezius, worse at nape of neck and right upper trapezius muscle, with some referred pain going to right left ear”. The applicant was to be reviewed if he developed severe neck pain or weakness in his arms/hands. The applicant was referred for an ultrasound of the right shoulder.[6]
[6] ARD p. 186.
The applicant attended on Dr Jackson Lam on 20 July 2020, Dr Shirazul Islam on
17 June 2020, Dr Shahnaz on 16 May 2020 and Dr Lam on 6 April 2020 for unrelated condition.
Whilst the clinical note of 24 August 2020 refers to the neck the clinical note is clearly referring to generalised tenderness in the right upper trapezius at the nape of the neck and not neck pain with the pain being referred from the trapezius around to the right ear.
The contemporaneous clinical records do not support the applicant’s evidence that he was experiencing neck pain for some months prior to reporting the injury on 16 September 2020. Whilst inconsistencies between the applicant’s evidence and the medical history in the clinical notes should be treated with caution as Basten JA observed in Mason v Demasi [2009] NSWCA 227:
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)     the health professional who took the history has not been cross-examined about:
(i)the circumstances of the consultation;
(ii)the manner in which the history was obtained;
(iii)the period of time devoted to that exercise, and
(iv)the accuracy of the recording;
(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)     the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
In this case the applicant has attended on the medical practice on a number of occasions, and on different doctors, prior to 16 September 2020 without the doctors recording any complaints in respect to the applicant’s neck but further the clinical note from the attendance on 24 August 2020 specifically deals with pain in the region of the applicant’s neck but which is clearly identified as being located in the trapezius or radiating therefrom.
The respondent submits that the clinical records support that the neck pain complained of by the applicant was referred pain and not due to injury to the neck itself or as a consequence of the accepted shoulder injuries. No consequential condition is alleged by the applicant.
On 22 October 2020 Dr Shahnaz referred the applicant for chiropractic treatment after speaking to the applicant about his right shoulder condition. The clinical records from Innovation Wellness & Health Chiropractic Clinic Campbelltown (the chiropractor) record that the applicant initially attended on 28 October 2022 with a history of left and right shoulder pain which commenced one year prior. A diagnosis was made of right shoulder near full thickness tear of the supraspinatus as well as left shoulder subscapularis tendinosis and subacromial bursitis. Whilst “associated” restrictions of the cervical spine and thoracic spine were noted no history of injury to the cervical spine was recorded or any diagnosis in respect to any injury to the cervical spine made.
On 30 November 2020 the applicant attended on Dr Shahnaz in respect to neck pain as well as right rotator cuff injury.[7] However there is no history taken as to the cause of the neck pain some 2½ months after the applicant ceased duties on 16 September 2020.
[7] ARD p. 181.
Mr Abdul Baraka, exercise physiologist, reported to Dr Shahnaz on 21 March 2022 that the applicant reported pain symptoms presenting at the anterior aspect of his bilateral shoulders and laterally to his cervical spine on both sides.[8]
[8] ARD p. 349.
A clinical note for the applicant’s attendance on Mr Baraka on 13 April 2022 records that the applicant reported right sided neck strain with shoulder flexion.[9]
[9] ARD p. 326.
Mr Baraka reported to Dr Shahnaz on 22 April 2022 that the applicant had been reporting a strain like feeling occurring on the right side of his cervical spine with resisted shoulder flexion movements.[10]
[10] ARD p. 117.
Mr David Yau, chiropractor, in a report dated 17 August 2022 records that the applicant was referred to him for chiropractic care by Dr Shahnaz on 28 October 2020 in respect to rotator cuff tears and chronic inflammation of both shoulders. Sessions consisted of two visits per week until 9 June 2021 when treatments were reduced to one visit per week. In the opinion of the chiropractor the applicant’s neck and thorax mechanics had compensated for the lack of the applicant’s ability to manoeuvre his shoulders voluntarily and from his initial session the neck and thorax had both been included in his weekly treatments to aid in his upper body mechanical imbalances.
Mr Yau noted that an initial mention of neck pain was made on 25 November 2020 which has been discussed above.[11]
[11] ARD P. 62-64.
On 5 November 2022 the applicant completed a South West Pain Clinic form that asked the applicant to shade on a diagram the areas where he felt pain. The applicant shaded over both shoulders as well as the thoracic spine and lumbar spine but not the neck.[12]
[12] ARD p. 460.
Mr Baraka reported to Dr Shahnaz on 18 November 2022 that the applicant’s pain symptoms continued to travel towards the cervical spine and the applicant had been trying to stretch his cervical spine between exercises to continue managing his symptoms.[13]
[13] ARD p. 365.
I accept the respondent’s submission that the clinical records support that the neck pain complained of by the applicant was referred pain and not due to injury to the neck itself or potentially as a result of a consequential condition which is not alleged by the applicant.
As previously discussed, the clinical note from the applicant attendance on Dr Shahnaz on 24 August 2020 clearly identified the pain and tenderness as being located in the trapezius or radiating therefrom. The clinical note from the applicant’s attendance on the chiropractor on 28 October 2022 only noted “associated” restrictions of the cervical spine and thoracic spine whilst recording no history of injury to the cervical spine or any diagnosis in respect to any injury to the cervical spine made. Whilst the applicant did complain of neck pain to
Dr Shahnaz on 30 November 2020, some 2½ months after ceasing work duties with the respondent on 16 September 2020 there is no history taken as to the cause of the neck pain. Mr Baraka in reporting to Dr Shahnaz on 21 March 2022 records that the applicant reported pain symptoms presenting at the anterior aspect of his bilateral shoulders and laterally “to” his cervical spine on both sides. The clinical note for the applicant’s attendance on
Mr Baraka on 13 April 2022 records that the applicant reported right sided neck strain with shoulder flexion and Mr Baraka reported to Dr Shahnaz on 22 April 2022 that the applicant had been reporting a strain like feeling occurring on the right side of his cervical spine with resisted shoulder flexion movements. In the opinion of Mr Yau the applicant’s neck and thorax mechanics had compensated for the lack of the applicant’s ability to manoeuvre his shoulders voluntarily and from his initial session the neck and thorax had both been included in his weekly treatments to aid in his upper body mechanical imbalances. On
5 November 2022 the applicant completed a South West Pain Clinic form that asked the applicant to shade on a diagram the areas where he felt pain. The applicant shaded over both shoulders as well as the thoracic spine and lumbar spine but not the neck. Mr Baraka reported to Dr Shahnaz on 18 November 2022 that the applicant’s pain symptoms continued to travel towards the cervical spine and the applicant had been trying to stretch his cervical spine between exercises to continue managing his symptoms.
The respondent submits that Dr Rodgers, occupational physician, who examined the applicant on 30 November 2022 took a history of there having been a gradual onset of shoulder pain and that the applicant denied neck pain. In the respondent’s submission this is consistent with the first report of Dr Bodel who found the neck to be normal on examination.
On 30 November 2022 Dr Tania Rogers, occupational physician with Jobfit, recorded that the applicant denied neck pain.[14] This is consistent with the initial examination of Dr Bodel as recorded in his report of 21 June 2022.
[14] ARD p. 68.
On 5 December 2022 Dr Michael Davies, from South West Pain Clinic, in a report to
[15] ARD p. 433-434.
Dr Shahnaz records that in October 2020 the applicant developed pain around both shoulders, which got worse to the point that he had to stop work. The applicant reported constant pain around both shoulders, together with a burning pain in the arms and tingling in the fingers and he also developed pain radiating from about the cervicothoracic junction down to the lower lumbar region. On examination the applicant had a good range of cervical spine movement. It was the impression of Dr Davies that the applicant had chronic pain affecting both shoulders with predominantly nociceptive pain and also secondary muscular pain affecting much of the spinal region.[15]
The respondent submits that the report of Dr Davies supports that any spinal pain which the applicant is suffering from is secondary to the accepted shoulder injuries and muscular pain. I accept the respondent’s submission as this is the opinion which Dr Davies expresses in his report.
The respondent relies on medico-legal reports from Dr Raymond Wallace, orthopaedic surgeon, dated 24 January 2023 and 14 June 2023.
Dr Wallace in his initial report of 24 January 2023 noted that the applicant reported no current neck pain.
Dr Wallace in his report of 14 June 2023 noted that the applicant was now claiming that he had suffered from cervical spinal pain since 2020 but it had been worse over the previous six weeks since he had ceased treatment in April 2023.
The doctor noted that the applicant complained of a constant burning ache at the lateral aspect of his neck on both sides radiating to the medial and the trapezius muscles bilaterally accompanied by intermittent aching pain at his bilateral clavicles with no radiation to his shoulders. The applicant also complained of stiffness of the cervical spine.
Dr Wallace is of the opinion that there is no objective medical evidence that the applicant suffered any injury to his cervical spine as a result of the nature and conditions of employment with the respondent. The doctor was of the opinion that the nature and conditions of his employment were not consistent with having caused any significant cervical spine pathology. In support of his opinion Dr Wallace referred to the American Medical Association Guides to the Evaluation of Disease Injury Causation which concludes one that there is insufficient evidence for heavy physical work as a risk factor for neck pain and two that there is insufficient evidence for neck posture, prolonged work in a sedentary position, or repetitive and precision work as risk factors for neck pain.
Dr Wallace noted that the applicant underwent a bone scan examination on 12 January 2023 which showed evidence of multilevel degenerative cervical spondylosis. In the opinion of
Dr Wallace the applicant’s current cervical spinal symptoms are due to age-related multilevel degenerative cervical spondylosis which is constitutional in origin and unrelated to his employment.
I accept the opinion of Dr Wallace that there is no objective medical evidence that the applicant suffered any injury to his cervical spine as a result of the nature and conditions of employment with the respondent. This opinion of Dr Wallace is consistent with the evidence as discussed above.
For the above reasons I find that the applicant has not sustained injury to his cervical spine as a result of the nature and conditions of his employment with the respondent as alleged.
The applicant does not allege that he has sustained a consequential condition of the cervical spine as a result of the accepted injuries to his shoulders and I therefore make no findings as to consequential injury.
As it is accepted that the applicant has sustained injury to both his shoulders due to the nature and conditions of his employment with a deemed date of injury of 9 October 2020 the applicant will be referred to a Medical Assessor for assessment of permanent impairment of both upper extremities (shoulders) and scarring/TEMSKI.

SUMMARY

I find that:
(a) there is an award for the respondent in respect to the claimed injury to the cervical spine.

[2023] NSWPIC 556

20 October 2023