Mulcahy v Workforce Road Services Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Mulcahy v Workforce Road Services Pty Limited [2022] NSWPIC 608
APPLICANT:	John Mulcahy
RESPONDENT:	Workforce Road Services Pty Ltd
Member:	Jacqueline Snell
DATE OF DECISION:	3 November 2022
CATCHWORDS:	WORKERS COMPENSATION - The applicant claims weekly benefits payable under the Workers Compensation Act 1987 (1987 Act) for injury sustained to his low back and right shoulder on 21 June 2019 in the course of his employment with the respondent; injury and incapacity placed in issue by the respondent; Held – the applicant sustained injury to his low back and right shoulder on 21 June 2019; in the course of his employment with the respondent; employment being the main contributing factor to injury; the applicant has had no current capacity for work since 15 September 2019 resulting from the injury and the applicant has entitlement to weekly compensation payable under sections 36 and 37 of the 1987 Act from 15 September 2019.
determinations made:	1. The applicant sustained injury to his low back and right shoulder on 21 June 2019 in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition in the course of his employment with the respondent, with his employment being the main contributing factor to injury. 2. The applicant has had no current capacity for work resulting from injury sustained on 21 June 2019 from 15 September 2019. The applicant has entitlement to weekly compensation payable under s 36 and s 37 of the Workers Compensation Act 1987 from 15 September 2019 resulting from injury sustained to his low back and right shoulder on 21 June 2019. The respondent is to pay the applicant weekly compensation payable under s 36(1)(a) of the Workers Compensation Act 1987 at the rate of $1,235 and payable under s 37(1)(a) of the Workers Compensation Act 1987 at the rate of $1,040, subject to indexation, from 15 September 2019. 3. The respondent is to have credit for weekly compensation paid to the applicant under the Workers Compensation Act 1987 since 15 September 2019.

STATEMENT OF REASONS

BACKGROUND

At the time the applicant, John Joseph Mulcahy (Mr Mulcahy) allegedly sustained injury the subject of these proceedings, he was employed by the respondent, Workforce Road Services Pty Limited (Workforce). Mr Mulcahy was employed by Workforce on a casual basis, working as a traffic control supervisor, a position he had held for some 15 years prior to injury allegedly sustained in 2019. Mr Mulcahy is currently 64 years of age.
In these proceedings Mr Mulcahy alleges he sustained injury to his low back and right shoulder on 21 June 2019 in the course of his employment with Workforce. The circumstances of injury are described in the following terms:
“slipped and fell while moving a light tower at Harwood NSW”.
Mr Mulcahy claims weekly compensation payable under s 36 and s 37 of the Workers Compensation Act 1987 (1987 Act) from 15 September 2019 resulting from incapacity for work resulting from these alleged injuries. The parties agree Mr Mulcahy’s pre-injury average weekly earnings relevant to these alleged injuries is $1,300 (as indexed).
While Mr Mulcahy’s claim before the Personal Injury Commission (the Commission) is declined, Workforce do not dispute Mr Mulcahy sustained injury to his low back on 26 April 2016 resulting in incapacity for work and he is currently in receipt of weekly compensation payable under the 1987 Act for that injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether Mr Mulcahy sustained injury to his low back and/or right shoulder on 21 June 2019 in the course of his employment with Workforce, and if so,
(b) whether Mr Mulcahy suffers an incapacity for work resulting that injury during the period of his claim for weekly compensation.

Procedure before the Commission

Mr Mulcahy’s claim for compensation came before me for teleconference on 9 June 2022. Mr Mulcahy’s claim did not resolve at teleconference and his claim came before me for conciliation/arbitration hearing on 5 August 2022. Josh Beran of counsel appeared for Mr Mulcahy on this occasion and Mr McMahon of counsel appeared for Workforce. Mr Mulcahy was present.
I am satisfied after my discussions with counsel 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.
When it became evident the arbitration hearing would not conclude during the day of 5 August 2022, I issued directions for the lodgement and service of written submissions, which has now occurred.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 27 July 2022 lodged on behalf of Mr Mulcahy and attached documents (A AALD),
(d)    Application to Admit Late Documents dated 2 August 2022 lodged on behalf of Workforce (R AALD).

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Brief review of evidence

Statements of Mr Mulcahy

Mr Mulcahy provided statements dated 15 May 2020[1], 12 October 2021[2] and 27 July 2022[3].
[1] Reply at page 12.
[2] ARD at page 26.
[3] A AALD at page 77.
In his initial statement Mr Mulcahy described the incident occurring on 26 April 2016 (albeit described as occurring on 17 April 2016).
Mr Mulcahy also confirmed he orally reported the injury the subject of these proceedings to Mr Parry immediately after the incident occurred on 21 June 2019. He said he did not complete an incident report and did not believe Mr Parry completed one either. Mr Mulcahy said David Allars, Traffic Management Consultant with Pacific Complete was sitting with Mr Parry at the time Mr Mulcahy reported the incident. Mr Mulcahy said he continued working up until 12 September 2019 when after complaint of pain, Mr Parry permitted Mr Mulcahy to finish work early to seek medical treatment. While Mr Mulcahy attempted to return to work some three weeks’ later on a return to work plan, his return to work was not successful.
In his subsequent statements Mr Mulcahy confirmed that at the time he sustained injury the subject of these proceedings, he was working suitable duties following injury sustained to his low back on 26 April 2016. He said he had not been in receipt of either weekly compensation or medical and related treatment expenses in respect of that injury. Mr Mulcahy said that in the alleged incident occurring on 21 June 2019, his low back symptoms substantially increased and he sustained injury to his right shoulder, and he ultimately ceased working on or about 12 September 2019 because of his low back and right shoulder injuries. Mr Mulcahy said that while he reported both injury sustained on 26 April 2016 and injury sustained on 21 June 2019 to Workforce, his weekly compensation resulting from his incapacity for work is referable to the injury he sustained to his low back on 26 April 2016 and not referable to any injury he alleges he sustained on 21 June 2019.

Handwritten note of Mr Mulcahy

Mr Mulcahy provided a handwritten note dated 3 December 2019[4] in which he described the incident occurring. Mr Mulcahy explained he slipped and fell onto the road surface where he lay in pain for approximately two minutes before his work colleagues came to assist him. Mr Mulcahy explained he told Mr Parry about the incident but continued working until 12 September 2019 when his back pain became so severe that he sought medical assistance.
[4] Reply at page 10.

Statement of Kenneth Parry

Mr Parry provided a statement dated 13 May 2020[5]. Mr Parry commenced employment with Workforce in 2003 and at the time he made his statement he held the position of project supervisor. Mr Parry said he had been supervising Mr Mulcahy “on and off” for the past 14 years.
[5] ARD at page 26.
Mr Parry said he was aware Mr Mulcahy sustained injury to his back in 2016 when he slipped down an embankment in the course of his employment. Mr Parry said he submitted an incident report to the Port Macquarie Depot which “went missing”. He said Mr Mulcahy had no time off work resulting from this injury and at that time Mr Mulcahy made no claim for compensation for this injury.
Mr Parry recalled Mr Mulcahy also sustained injury to his back on 21 June 2019. He said he was contacted by another supervisor who told him he had seen Mr Mulcahy sitting down and as a consequence Mr Parry asked Mr Mulcahy to come in to see him. Mr Mulcahy explained to Mr Parry that he had fallen over and hurt his back. Mr Parry conceded he hadn’t prepared an incident report and he conceded there had been no investigation into the incident. Mr Parry recalled that when Mr Mulcahy came into work the following Monday, being 24 June 2019, he complained of a sore back and didn’t participate in any heavy lifting duties. Mr Parry said Mr Mulcahy continued working for a few more months before he ceased working entirely due to a worsening of his back pain.
Mr Parry made no mention of Mr Mulcahy reporting injury to his right shoulder in the incident occurring on 21 June 2019, but then Mr Parry had failed to report any injury when Mr Mulcahy reported the incident.

Incident report

An incident report relevant to the injury Mr Mulcahy sustained to his low back on 26 April 2016 is in evidence[6]. The report was reportedly entered by Stephen Kelly on 16 September 2019. In the report Mr Mulcahy described the circumstances of injury to his low back on that occasion in the following terms:
“At approximately 0730 on the 26.04.16 I was putting up a cover on a permanent speed sign as I was covering the sign I slipped on the loose stones on the batter, ended up falling hard on my ass and rolling 3 meters down the batter, The TC that was shadowing me came to where I was and helped me up to the road. When I got up then Ken Parry was rang and told of the incident and was there within 10 minutes and took reports of myself and witness.”
[6] Reply at page 1.
Mr Mulcahy indicated he reported the incident to Ken Parry on 26 April 2016 at 7.40am.

Claim form

22. Mr Mulcahy provided a claim form dated 6 April 2020[7]. In his claim form Mr Mulcahy responded to series of questions relevant to the injuries he allegedly sustained on 21 June 2019 at approximately 10am. In essence Mr Mulcahy described sustaining injury to his low back and right shoulder in the following circumstances:

“Myself and 2 others were turning the light tower 180 degrees to be able to attach it to a vehicle. Whilst turning it around I slipped on loose gravel of the sealed surface, landing on my stomach and right shoulder”.
[7] ARD at page 1.

Mr Mulcahy reported that he reported injury to the project supervisor, Ken Parry, and the incident was witnessed by Bradley Winn and Ronald McCann.

Injury notification form

An injury notification form relevant to the injury Mr Mulcahy sustained to his low back on 21 June 2019 at 10am is in evidence[8]. The injury notification form noted Mr Mulcahy reported an incident occurring on 21 June 2019 to Mr Parry in which he sustained “back pain”. The circumstances of injury are described in the following terms:
“John Mulcahy slipped and fell while moving a light tower”.
[8] Reply at page 6.
The injury notification form was not submitted to the insurer until 7 May 2020.

Treating medical evidence
Lismore GP Super Clinic

The clinical records of Lismore GP Super Clinic[9] as reportedly read by Dr McCarthy on 19 June 2019 are in evidence and it is evident from these records that Mr Mulcahy was discharged from the general medical care of Dr Rickcord on 30 May 2019 after reported failure by Mr Mulcahy to follow Dr Rickcord’s treatment advice.

Yamba Medical Centre
[9] Reply at page 91.

The clinical records of Yamba Medical Centre[10] are in evidence. The records commence on 4 June 2019 and reflect the fact Mr Mulcahy had a past history of low back injury sustained in 2016 and was seeking treatment at the time he allegedly sustained injury on 21 June 2019. In his letter of referral dated 17 June 2019 addressed to Dr Clarke[11] Dr McCarthy relevantly wrote:
“Thank you for seeing John Mulcahy aged 62 years please regarding ongoing lumbago with Left sciatica onset after a fall 3 yrs ago”.
[10] Reply at page 41.
[11] AALD at page 18.
While is evident from the records that Mr Mulcahy consulted with Dr McCarthy on 28 June 2019 (being one week after Mr Mulcahy allegedly sustained injury on 21 June 2019) Dr McCarthy makes no notes at all relevant to this particular consultation. However, it is evident from the clinical records that Dr McCarthy does not always make notes relevant to Mr Mulcahy’s consultations with him and it is also evident that Dr McCarthy’s notes from time to time merely reflect “actions” taken relevant to Mr Mulcahy’s consultations with him.

Pathia Pain Management

Following referral by Dr McCarthy, Mr Mulcahy came under the care of Dr Clarke, specialist pain medicine physician. Dr Clarke’s clinical records[12] are in evidence. It is apparent from Dr Clarke’s reporting that Mr Mulcahy attended a “nurse consultation” on 28 October 2019 and initial review by Dr Clarke on 9 December 2019. On that occasion Dr Clarke reported Mr Mulcahy’s chief complaint was lower back pain with leg pain and paraesthesia. Dr Clarke wrote:
“John presents with a three year history of lower back and leg pain and paraesthesia following a work related injury in 2016. He reports reaching up to place a cover on a traffic light when the stones under his right foot fell away and he slipped and fell 3 m onto his buttocks. He reports feeling ‘sore and bruised’, which has gotten progressively worse over time. John has remained at work during this period (with some light duties initially) however has struggled to perform the tasks required of him. He recently ceased work completely due to increased pain”.
[12] A AALD at page 1.
Following telephone review on 20 August 2020, Dr Clark relevantly wrote “he is complaining of shoulder pain in the last couple of months which sounds more like bursitis, but I have of course not been able to examine him”.

Michelle Wytenburg

Mr Mulcahy came under the care of Ms Wytenburg for treatment of his back injury and a completed questionnaire dated 1 October 2019[13] is in evidence.
[13] A AALD at page 1.
In response to questioning as to the circumstances of injury provided to her by Mr Mulcahy, Ms Wytenburg relevantly wrote:
“Initially occurred 17/4/16 slipping backwards down 3 m falling on to back. Ongoing pain since that time. 6 – 8 weeks ago moving a light tower, with 2 others, slipped on stones, lost footing, fell & back/sciatic pain has increased”.
In response to questioning as to diagnosis, Ms Wytenburg wrote:
“Chronic back injury from initial fall, now in acute phase due to recent fall.”

Fluid Physio+ Gym

Mr Mulcahy was referred for physiotherapy treatment by Dr McCarthy and came under the care of Daniel Mandl. Reports of Mr Mandl dated 28 September 2019[14] and 18 October 2019[15] are in evidence. In his initial report Mr Mandl relevantly wrote:
“Thank you for referring John for physiotherapy of his lumbar spine workplace injury, dated April 2016. Noted CT scans in 2016 showing L4/5 narrowing mild-to-moderate on right, moderate to severe on the left.
John reported relatively passive treatment following his injury, and largely he had continued with ‘is soldiering on’, is having a fortnightly R/V with his GP, completing a home exercise program with mobility focus, and taking various pain/nerve medications to assist with same.
John reported a few months back having a slip at work, which flared up his pain again to the point where he felt he could no longer continue at work and has actively sought further treatment.
….
John is certainly relatively complex due to nature of his long-standing pain. He has been trying to push through his pain and continue at work as a supervisor to show colleagues how to do things properly/safely, thus pain education and pacing is certainly appropriate.
As John’s most recent scans were in 2016, further imaging/MRI may be appropriate to confirm that the results of his 2016 scans remain applicable”.
[14] Reply at page 109.
[15] Reply at page 117.
In his subsequent report Dr Mandl relevantly wrote:
“Noted recent MRI scans reporting multilevel disc bulges with contact but no definitive compression to right L3 and L4 nerve roots and his foraminal narrowing have not changed in comparison to his 2016 scans.
John presented on 17 October 2019 reporting his pain was through the roof, unable to provide assistance with why this may be the case, he reported he hadn’t been able to walk for 30 minutes as he had last week, but was managing eight minutes each way, his sitting tolerance remained at 10 to 15 minutes. He requested no hands-on treatment and so we went for a walk.”
It is evident conflict arose between Mr Mandl and Mr Mulcahy during the consultation on 17 October 2019 and Mr Mandl discharged Mr Mulcahy from his care, with comment the consultation on 17 October 2019 was the “fourth and final consult”.
A report dated 27 January 2022[16] was subsequently provided by Nicolien Haafwee in which she confirmed Mr Mulcahy presented at the clinic on 19 and 22 January 2022 with the purpose of her report being to “provide an update on Mr Mulcahy including treatment recommendation”. Ms Haafwee wrote “Mr Mulcahy reports pain in his right shoulder and across his lower back following a work injury”.
[16] ARD at page 87.

Rehab Balance

Mr Mulcahy was referred to Dr Gerich-McGregor, consultant physician in rehabilitation medicine. A number of Dr Gerich-McGregor’s reports[17] are in evidence. In her initial report dated 14 April 2021, Dr Gerich-McGregor provided diagnosis:
“Severe persistent pain with a pain level of 7.5-8/10 consistently since a work injury (fall to the right with twisting of lower back) in 10/19 as a supervising traffic controller.”
[17] ARD commencing at page 75.
Dr Gerich-McGregor reported at that time:
“I have asked John in detail about the actual injury event in 10/2019. The event where he stepped into a hole which was filled with loose gravel when pushing and turning a trailer with a heavy traffic light and its compressor is a typical event where the sacroiliac joint can be malaligned or some of the ligamental structures injured”.
Although Dr Gerich-McGregor makes reference to an incident occurring in October 2019 it is evident from her description of injurious event that it is the incident occurring on 21 June 2019 on which Mr Mulcahy relies in these proceedings.
In a subsequent report dated 25 August 2021 relevant to Mr Mulcahy’s consultation with her on 8 July 2021, Dr Gerich-McGregor wrote:
“John was very upset about his ongoing right shoulder pain which I was first not aware of.”

Felicity Bennett

Mr Mulcahy came under the care of Ms Bennett, acupuncturist, remedial massage therapist, mindfulness coach and somatic educator. Ms Bennett’s report dated 6 October 2021[18] is in evidence. Ms Bennett confirmed she had been treating Mr Mulcahy since May 2021. She wrote:
“I am treating injuries that resulted from a fall at work 21.6.2019 which he described in the following way:
‘I was pushing a piece of 800kg machinery (a trailer mounted light tower) and as I pushed my foot slipped and I fell onto my stomach and used my right arm to break the fall’.”
[18] ARD at page 86.
It is evident from Ms Bennett’s reporting that she is of the view Mr Mulcahy sustained injury to his right shoulder in the alleged incident occurring on 21 June 2019.

Independent medical evidence
Dr Kirychenko

Mr Mulcahy was assessed on 2 December 2019 by Dr Kirychenko in his capacity as independent medical consultant. Dr Kirychenko specialises in musculoskeletal medicine and occupational medicine. Dr Kirychenko provided a report dated the same day[19].
[19] ARD at page 37.
Dr Kirychenko reported a history of Mr Mulcahy sustaining injury to his low back on 17 April 2016. Although Dr Kirychenko also reported a history of injury occurring in September 2019 it is evident from his description of the injurious incident that it is the incident occurring on 21 June 2019 on which Mr Mulcahy relies in these proceedings. Dr Kirychenko wrote:
“He stated that he was working at night and they had to move a ‘light tower’ which was mounted on a trailer. While pulling the trailer he slipped on some loose gravel and fell forward quite heavily hitting the ground. This episode aggravated the back pain and he was experiencing more severe pain. He again continued working but reported this accident to the manager on site.
He continued working with the deteriorating pain, and 3 days later he reported that the pain was getting more severe. He continued working until 12 September 2019, and then consulted Dr McCarthy in Yamba.
Dr McCarthy certified Mr Mulcahy as unfit for work.”
Dr Kirychenko reported he had discussed Mr Mulcahy’s medical condition with Dr McCarthy and while he noted Dr McCarthy had now certified Mr Mulcahy fit to work four hours each day on two days each week, Dr McCarthy cautioned he would be monitoring Mr Mulcahy and only increase capacity if his condition improved.

Dr Miller

Mr Mulcahy was assessed on 5 July 2020 by Dr Miller in his capacity as independent medical examiner. Dr Miller is a general surgeon. Dr Miller provided a report dated 14 March 2022[20]. Dr Miller reported a history of Mr Mulcahy sustaining injury on 17 April 2016 in the course of his employment with Workforce. Dr Miller also reported of Mr Mulcahy:
“On 21 June 2019 whilst working for Workforce he slipped on some loose gravel, landing forward, taking the force on his hands and knees.
Initially he was shaken but could not feel any pain. He reported the incident to his supervisor.
The incident occurred on Friday. He stated he went home and rested and over the weekend he developed lower back pain which became worse.
He continued to work with the back pain for three months. He stated that the pain gradually increased.
He consulted his local medical officer, Dr Edward McCarthy in Yamba. Dr McCarthy arranged for him to have further radiological investigations.
He states he has been off work since that time”.
[20] ARD at page 56.
Following clinical examination and review of the medical information made available to him, in response to specific questioning Dr Miller provided opinion regarding the injuries sustained by Mr Mulcahy on 17 April 2016 and 21 June 2019. He said:
“On 17 April 2016 the fall resulted in many symptoms in his legs which included the bilateral meralgia paraesthetica.
Initially there was no back pain but at a later date he did develop back pain. Investigation revealed degenerative changes at multi-levels in his lumbar spine.
The second injury on 1 June 2019 further aggravated degenerative changes in his lumbar sacral spine and cervical spine.
I believe the second incident was the main contributing factor to his current status in regard to his back and neck.
This is due to the fact he had very little back pain after the injury on 17 April 2016”.
Dr Miller provided opinion Mr Mulcahy’s employment with Workforce was a substantial contributing factor to both the injury he sustained on 17 April 2016 and 21 June 2019.
At the time of assessment Dr Miller did not consider Mr Mulcahy was fit for any work which placed manual repetitive stress on his spine. He did not consider Mr Mulcahy was fit to return to his preinjury duties. Dr Miller did not consider Mr Mulcahy’s medical condition would improve with time.
Mr Mulcahy was re-assessed by Dr Miller on 8 March 2022. Dr Miller provided a report dated 14 March 2022[21]. On this occasion Dr Miller noted Mr Mulcahy had told him the insurance company “had not recognized” his second injury occurring in 2019. Dr Miller reported Mr Mulcahy had noted an increasing pain in his right trapezius and right shoulder region in late December 2019/early January 2020. Mr Mulcahy described such pain coming on with activity.
[21] ARD at page 44.
Following clinical examination and review of the medical information made about available to him, in response to specific questioning Dr Miller again said of Mr Mulcahy that the second injury occurring on 21 June 2019 “was the main contributing factor to his current status in regard to his back”.
Relevant to the injury Mr Mulcahy has allegedly sustained to his right shoulder Dr Miller reported:
“I discussed this aspect of Mr Mulcahy’s case with him. He did state that when he fell on 21 June 2019, he did apply considerable force to his right shoulder when he impacted the ground with his outstretched arms.
He stated that he did not develop shoulder pain until late December/early January. He stated the pain came on gradually with use. Investigation led to the diagnosis of degenerative change in his acromioclavicular joint, a tear in his supraspinatus tendon and subacromial bursitis.
In the absence of any other incident that would result in an injury to his right shoulder, it is my belief on the balance of probabilities that the fall on 21 June 2019 was responsible for aggravating the degenerative condition in his right shoulder”.
Dr Miller provided opinion Mr Mulcahy was unfit to undertake his pre-injury duties due to a combination of back and right shoulder problems. He further said, “I do not believe that he will return to work in any capacity”.

Dr Bentivoglio

Mr Mulcahy was assessed on 22 November 2019 by Dr Bentivoglio in his capacity as independent medical examiner. Dr Bentivoglio is a neurosurgeon. Dr Bentivoglio provided a report dated 5 December 2019[22]. Dr Bentivoglio reported of Mr Mulcahy:
“… he told me he had a long history of low back pain ever since a work injury on the 17.04.16 when he slipped, fell and landed on his bottom. The injury was reported. He only took 1 – 2 days off work. The injury was never reported to the insurance company.
…
In July he had a further slip and fell forwards and he flared up his low back pain and also developed neck pain, which was the first time he has ever had neck pain. No actual written report was made, and he continued to work on.
He worked on up until 12 September 2019 and because the low back pain was slowly but surely getting worse, he stopped work. He says the neck pain has settled down by itself.
He has been reviewed by a new local doctor, Dr McCarthy”
[22] Reply at page 21.
Following clinical examination and review of the medical information made available to him Dr Bentivoglio provided diagnosis of mechanical axial back pain secondary to multilevel degenerative changes with no evidence of a radiculopathy or myelopathy.
In response to specific questioning Dr Bentivoglio said:
“The workplace injury has been clearly described when he fell on 17 April 2016 landing on his bottom, which caused him to develop low back pain.
This injury is quite consistent with his current presentation and persistent progression of the degenerative disease in his lumbar spine.
I believe that Mr Mulcahy’s condition is a gradual deterioration in progression of his multilevel degenerative disease in his lumbar spine, which first became apparent on 17 April 2016 and has progressed slowly but surely since that time.
I do believe that his problem now is a gradual deterioration of his spine, which initially presented in April 2016”.
Dr Bentivoglio specifically said:
“So, my diagnosis of Mr Mulcahy is that he is suffering from degenerative disease and the incident at work in April 2016 is a main contributing factor to the exacerbation of this pre-existing degenerative disease and his back has become symptomatic since that time. The reason I say this is because of the MRI scan, the history and the neurological examination that I achieved with him.
…
So I do believe that the work that he has done for the last 15 years has been a substantial contributing factor to the development of his degenerative disease in his lumbar spine, which was exacerbated by the injury in April 2016.
So, I do believe the injury in 2016 was real and substantial and was the main precipitating cause to bring his degenerative disease to our notice.”
In relation to Mr Mulcahy’s capacity for work, Dr Bentivoglio noted Mr Mulcahy was “currently certified fit for suitable duties working reduced hours, 2 days a week “building it up slowly but surely”. He cautioned “over a period of 3 – 4 months it will become apparent whether he can build it up slowly to work full hours”. Dr Bentivoglio did not believe Mr Mulcahy could return to his preinjury duties.

Dr Kinny

Mr Mulcahy was orthopaedically assessed by Dr Kinny on 9 November 2021 in his capacity as independent medical examiner. Dr Kinny is an orthopaedic surgeon. Such assessment was in respect of Mr Mulcahy’s allegation of right shoulder injury occurring on 21 June 2019. Dr Kinny has provided a report dated 9 November 2021[23]. Dr Kinny described Mr Mulcahy as right hand dominant.
[23] Reply at page 31.
Dr Kinny reported a history of Mr Mulcahy sustaining injury on 17 April 2016 and Dr Kinny also said of Mr Mulcahy:
“Mr Mulcahy reports that in June 2019, he was pushing a heavy mobile light trailer in preparation for hitching it on the back of a work vehicle. He states that his feet slipped backwards and he fell forwards, onto his outstretched right arm. He felt pain in his right shoulder but also was aware that he had significantly reaggravated his back.
He states that the incident was witnessed by his supervisor and that he reported it, but his manager then subsequently admitted that he did not submit the notification of the injury to WorkCover for some months. The injury was finally reported in September 2019. At that point Mr Mulcahy had to cease work because of ongoing back pain. He has not worked since.
Mr Mulcahy reports that his back pain was worse than his shoulder pain for quite some time. He was referred for physiotherapy, but the first indication he can record of significant shoulder symptoms was not for another year, on 5 August 2020. Up until then all he had experienced was some aching in his shoulder. He underwent hydrotherapy both at Maclean and Ballina, and roughly around this time he reports that his shoulder deteriorated”.
Dr Kinny noted Mr Mulcahy had yet to consult with an orthopaedic specialist about his shoulder and he recommended Mr Mulcahy specifically seek referral from his general practitioner to an orthopaedic specialist.
Following clinical examination and review of radiological investigations made available to him Dr Kinny provided opinion:
“Mr Mulcahy has had two work-related injuries. The first one occurred in April 2016 in which he hurt his lumbar region. He recovered from this event and work satisfactorily for the next two years. The second work injury occurred in June 2019 but was not reported until September 2019, the delay being due to the supervisor not submitting report, not because Mr Mulcahy did not put it in. In this second incident Mr Mulcahy significantly hurt his back again and this has troubled him ever since. He also allegedly hurt his right shoulder, but symptoms were minimal for about one year before his shoulder started to deteriorate.
Mr Mulcahy has not worked since September 2019. He has ongoing back symptoms, which include bilateral referred leg pain, prevent him from performing the physical type of work he was employed to do previously. He also is restricted in terms of right upper limb function due to the shoulder pain and I note he is right hand dominant.”
In response to specific questioning Dr Kinny relevantly said Mr Mulcahy told him that at the time he hurt his back in June 2019 his back was much more painful than his right shoulder and he therefore did not worry too much about his shoulder. Mr Mulcahy accepted his shoulder was not mentioned as a problem for approximately one year subsequently, being August 2020
Dr Kinny formed the opinion that while Mr Mulcahy had a minor injury to his right shoulder at the time he hurt his back in 2019, the incident did not cause Mr McCauley’s right shoulder pathology. Dr Kinny provided opinion Mr Mulcahy’s right shoulder condition was not a work-related condition but was rather glenohumeral joint osteoarthritis. Dr Kinny said:
“I believe the current symptomology in relation to Mr Mulcahy’s right shoulder is due to gradually worsening glenohumeral joint osteoarthritis, and such arthritis was not caused by the 2019 incident nor even significantly aggravated by it”.
Dr Kinny provided no opinion as to Mr Mulcahy’s capacity for work resulting from injury sustained to his right shoulder.

Submissions

Mr McMahon made oral submissions during the arbitration hearing and when it became evident the arbitration hearing would not conclude by day’s end I issued directions for lodgement and service of written submissions on behalf of Mr Mulcahy and for lodgement and service of submission in response on behalf of Workforce. A transcript of Mr McMahon’s oral submissions is available to the parties. The parties also have copies of Mr Beran’s written submissions and those in response by Mr McMahon.
I am grateful to counsel for the assistance they have afforded me in this matter.

Determination
Onus

Workforce disputes Mr Mulcahy sustained injury to his low back and right shoulder in the incident occurring on 21 June 2019 and Mr Mulcahy has the onus of proving he sustained injury to his low back and/or right shoulder in this alleged incident.
This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[24] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[24] [2008] NSWCA 246 (Nguyen).

Injury

It is not disputed Mr Mulcahy sustained injury to his low back on 26 April 2016 in the course of his employment with Workforce and it is evident Mr Mulcahy was receiving treatment for that injury at the time of his alleged injury to his low back and right shoulder on 21 June 2019.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment, and relevantly includes a disease injury if employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. The law in relation to “main contributing factor” was considered by Deputy President Snell in AV v AW[25] with comment that the test of “main contributing factor” is one of causation that involved consideration of the evidence overall.
[25] [2020] NSWWCCPD 9.
Relevant to the issue of causation of the injury in Kooragang v Cement Pty Ltd v Bates[26] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[26] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463].
In a handwritten note dated 3 December 2019 Mr Mulcahy explained he told Mr Parry about the incident when he slipped and fell onto the road surface. He said too he continued working until 12 September 2019 when he sought medical assistance for his back pain which had become “severe”. While Mr Mulcahy made no mention in this note of seeking medical assistance for right shoulder pain, in his subsequent statement Mr Mulcahy explained that when he fell on 21 June 2019 he felt immediate pain in both his back and right shoulder. Mr Mulcahy said he told Mr Perry on the day of the incident that his back and shoulder were sore. Mr Mulcahy said he told Mr Perry again on 24 June 2019 that his back and shoulder were sore. In his claim form dated 6 April 2020 Mr Mulcahy made reference to sustaining injury to his low back and right shoulder (which he said reported to Mr Parry) when he slipped and fell on the road. While Mr Parry said Mr Mulcahy told him he had injured his back on 21 June 2019 and made no mention of Mr Mulcahy having told him that he injured his right shoulder on 21 June 2019, I am mindful of the comments of DP Roche in State of New South Wales v Rattenbury[27]. I have no reason not to accept Mr Mulcahy as a witness of truth and I accept both Mr Mulcahy’s low back and his right shoulder were sore as a result of the incident occurring on 21 June 2019.
[27] [2015] NSWWCCPD 46
While the clinical records of Yamba Medical Centre make no specific reference to Mr Mulcahy sustaining injury to either his low back or right shoulder in the incident occurring on 21 June 2019, even during consultation on 28 June 2019, being only one week after the alleged incident, I accept Mr Beran’s submission “it is telling there is simply no clinical record whatsoever identified under this date” as it is evident elsewhere that these clinical records often fall short of accurately recording Mr Mulcahy’s consultations with Dr McCarthy.
On 28 September 2019 Mr Mandl reported Mr Mulcahy’s back pain resulting from the incident occurring in 2016 as having “flared up” with Mr Mulcahy reporting that “he felt he could no longer continue at work and has actively sought further treatment”. Likewise, on 1 October 2019 Ms Wytenburg described Mr Mulcahy’s back pain, which had been ongoing since the incident occurring in 2016, as having increased when he slipped and fell “6-8 weeks ago”.
Dr Clarke, under whose specialist care Mr Mulcahy came following the injury he sustained to his back in 2016 and prior to the incident occurring on 21 June 2019, described Mr Mulcahy’s condition having “gotten progressively worse over time” with Mr Mulcahy ultimately ceasing work due to pain.
Dr Bentivoglio independently assessed Mr Mulcahy less than six months after the incident occurring on 21 June 2019, with Dr Bentivoglio reporting Mr Mulcahy suffered a slip and fall “in July” which “flared up his low back pain”. Dr Bentivoglio described Mr Mulcahy’s low back as “slowly but surely getting worse” with Mr Mulcahy seeking medical treatment from Dr McCarthy and ceasing work.
Dr Kirychenko also independently assessed Mr Mulcahy less than six months after the incident occurring on 21 June 2019 and while Dr Kirychenko makes reference to a workplace incident occurring in September 2019, it is evident Dr Kirychenko is in fact referring to the incident occurring on 21 June 2019. Dr Kirychenko took a history of this incident aggravating Mr Mulcahy’s low back pain, which deteriorated and resulted in Mr Mulcahy seeking medical treatment from Dr McCarthy and ceasing work.
Just over one year after the incident occurring on 21 June 2019, Dr Miller independently assessed Mr Mulcahy, who provided opinion this incident “further aggravated degenerative changes” in Mr Mulcahy’s low back.

About 18 months after the incident occurring on 21 June 2019 Dr Kinny independently assessed Mr Mulcahy, who reported a history of Mr Mulcahy significantly hurting his back again in this incident, which he said “has troubled him ever since”. Dr Kinny noted too that Mr Mulcahy had ceased work in September 2019.
I accept Mr Beran’s submission the evidence establishes Mr Mulcahy sustained injury on 21 June 2019 in the nature of an aggravation, acceleration, exacerbation or deterioration of an underlying disease of his low back, with his employment being the main contributing factor to injury, and I accept Mr Mulcahy has discharged the onus of proof required of him relevant to this alleged injury. Mr Mulcahy has provided a consistent history of injury sustained to his low back on 21 June 2019 in the course of his employment with Workforce, and I “feel an actual persuasion of that fact”.
Relevant to a telehealth consultation on 20 August 2020, Dr Clark described Mr Mulcahy as complaining of shoulder pain “in the last couple of months”. Relevant to a consultation with Mr Mulcahy on 8 July 2021, Dr Gerich-McGregor described Mr Mulcahy as being “very upset about his ongoing right shoulder pain which I was first not aware of”. Ms Bennett reported on 6 October 2021 that Mr Mulcahy had sustained an injury to his right shoulder in the incident occurring on 21 June 2019. Ms Haafwee relevantly reported on 27 January 2022 that Mr Mulcahy had reported pain in his right shoulder following a work injury.
When Dr Bentivoglio independently assessed Mr Mulcahy on 22 November 2019 he made no note of complaint about the right shoulder. When Dr Kirychenko independently assessed Mr Mulcahy on 2 December 2019 he too made no note of complaint about the right shoulder. While when Dr Miller initially independently assessed Mr Mulcahy on 5 July 2020 he made no note of complaint about the right shoulder, when Mr Mulcahy was re-assessed by Dr Miller on 8 March 2022, Dr Miller reported Mr Mulcahy had noted increasing pain in his right shoulder in late December 2019/early January 2020, which to my mind would explain the lack of complaint to Dr Bentivoglio and Dr Kirychenko. Dr Miller noted a history of Mr Mulcahy applying “considerable force” to his right shoulder when fell onto his outstretched arms, being a history which, while not quite consistent with that provided in his claim form dated 6 April 2020 in that on that occasion Mr Mulcahy said he landed on his right shoulder, is consistent with the history reported to Ms Bennett who has been treating Mr Mulcahy since May 2021 and the history reported to Dr Kinny during assessment on 9 November 2021. Following clinical examination and review of the diagnostic imaging made available to him Dr Miller provided opinion Mr Mulcahy sustained injury to his right shoulder in the incident occurring on 21 June 2019, which was in the nature of an aggravation of a pre-existing degenerative condition.
I accept Mr Beran’s submission that the evidence establishes Mr Mulcahy sustained injury on 21 June 2019 in the nature of an aggravation, acceleration, exacerbation or deterioration of an underlying disease of his right shoulder, with his employment being a main contributing factor to injury, and I accept Mr Mulcahy has discharged the onus of proof required of him relevant to this alleged injury. Again, I feel actual persuasion of that fact. While Dr Kinny has provided opinion that the incident occurring on 21 June 2019 did not cause the pathology that Mr Mulcahy suffers in his right shoulder nor significantly aggravate it, he did accept Mr Mulcahy had a minor injury to his right shoulder at that time. I prefer the opinion provided by Dr Miller as Dr Miller had the opportunity to assess Mr Mulcahy both prior to his right shoulder becoming significantly symptomatic and afterwards whereas Dr Kinny only had the opportunity to assess Mr Mulcahy on one occasion.

Capacity

Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity.”
As I have determined Mr Mulcahy sustained aggravating injury to his low back and right shoulder on 21 June 2019 in the course of his employment with Workforce and his employment is the main contributing factor to injury, it follows Mr Mulcahy may have an entitlement to weekly benefits payable under the 1987 Act resulting from that injury.
Sections 36 and 37 of the 1987 Act provide for weekly payments during an injured worker’s first and second entitlement period. The provisions of s 36 and s 37 of the 1987 Act requires consideration as to whether an injured worker has “current work capacity” or “no current work capacity” as defined in cl 9 of Schedule 3 of the 1987 Act:
“An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Suitable employment’ is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) Having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify and
(b) regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
the worker’s place or resident.”
Assessment of Mr Mulcahy’s capacity for work from 15 September 2019 involves consideration as to whether since that time Mr Mulcahy has had a current work capacity or no current work capacity as defined in Schedule 3 of the 1987 Act. This requires consideration of Mr Mulcahy’s capacity to undertake not only his pre-injury employment with Workforce but also his capacity to undertake suitable employment as defined in s 32A of the 1987 Act, irrespective of its availability. This is accepted in Wollongong Nursing Home Pty Ltd v Dewar[28]. It is also accepted in Dewar that suitable employment “must refer to a real job in employment for which the worker is suited”.
[28] [2014] NSWWCCPD 55 (Dewar).
In his statement Mr Mulcahy said that after the incident occurring on 21 June 2019 he continued to work until approximately 12.30pm on 12 September 2019, after which he ceased work due to the pain he was suffering in his back and shoulders. In his handwritten note, which is dated 2 December 2019, being only a few months after Mr Mulcahy ceased work on 12 September 2019, Mr Mulcahy said he kept working until his back pain became so severe that he sought medical assistance.
In a report dated 28 September 2019, being some two weeks after Mr Mulcahy ceased work Mr Mandl made reference to Mr Mulcahy’s back pain having flared up with the incident occurring on 21 June 2019 “to the point where he felt he could no longer continue at work and actively sought further treatment”. In responding to a questionnaire a few days later on 1 October 2019, Ms Wytenburg likewise made reference to Mr Mulcahy’s back pain having increased after the incident occurring on 21 June 2019.
On assessment on 2 December 2019 Dr Kirychenko noted Mr Mulcahy had aggravated his back pain in the incident occurring on 21 June 2019 and continued working “with the deteriorating pain” until 12 September 2019 when he sought treatment and was certified unfit for work. On review by Dr Clarke a week later on 9 December 2019, Dr Clarke described Mr Mulcahy as recently having ceased work completely due to increased pain.
On assessment on 5 July 2020 Dr Miller accepted the incident occurring on 21 June 2019 further aggravated degenerative change in Mr Mulcahy’s low back and provided opinion it this incident was the main contributing factor to Mr Mulcahy’s current low back condition, opinion with which he adhered following his re-assessment of Mr Mulcahy on 8 March 2022. On this occasion Dr Miller considered Mr Mulcahy was unfit to undertake his pre-injury duties due to a combination of both his low back and right shoulder conditions and said “I do not believe he will return to work in any capacity”. On assessment on 9 November 2021 Dr Kinny noted Mr Mulcahy had significantly reaggravated his low back in the incident occurring on 21 June 2019 and ultimately ceased work in September 2019 because of his ongoing back pain.
While on assessment on 22 November 2019 Dr Bentivoglio noted Mr Mulcahy suffered a slip and fall in July 2019 “which flared up his low back pain” but had continued to work on until 19 September 2019 because “the low back pain was slowly but surely getting worse”, Dr Bentivoglio provided opinion it was the incident occurring on 17 April 2016 which was consistent with Mr Mulcahy’s current condition. While on assessment Dr Bentivoglio provided opinion Mr Mulcahy was not fit for his pre-injury duties, he noted at that time Mr Mulcahy was certified fit for suitable duties, but cautioned “over a period of 3 – 4 months it will become apparent whether he can build it up slowly to work full hours”.
Although Mr Mulcahy reportedly only “took 1 – 2 days off work” as a result of the injury he sustained to his low back on 17 April 2016, it is evident he was working suitable duties as a result of this injury and was in receipt of medical and related treatment for this injury at the time of the incident occurring on 21 June 2021. It is evident Mr Mulcahy’s low back condition significantly worsened with the incident occurring on 21 June 2021 and I have accepted Mr Mulcahy sustained an injury to his right shoulder in this incident. It is evident too that Mr Mulcahy ultimately ceased working altogether on 19 September 2019 (following certification of a total incapacity for work by Dr McCarthy) as a result of the increased symptoms in his low back since the incident occurring on 21 June 2021.
I accept Mr Beran’s submission Mr Mulcahy suffers an incapacity for work resulting from the injury he sustained to his low back and right shoulder on 21 June 2019. I also accept Mr Beran’s submission Mr Mulcahy has had no current capacity for work from 19 September 2019 to date. I am particularly persuaded by opinion provided by Dr Miller, who has provided opinion Mr Mulcahy is not fit to return to work in any capacity due to a combination of his current low back condition and right shoulder condition, because Dr Miller had the opportunity to assess Mr Mulcahy on two occasions, with the second occasion being as recent as 8 March 2022, whereas both Dr Bentivoglio and Dr Kinny only had the opportunity to assess Mr Mulcahy on one occasion, with such assessments now being some time ago.

Quantification of entitlement to weekly compensation

Mr Mulcahy accepts that at the time of the incident occurring on 21 June 2019 his pre-injury average weekly earnings were $1,300.
It is not disputed Mr Mulcahy has suffered an incapacity for work since he ceased working on 12 September 2019 and Mr Mulcahy has been in receipt of weekly compensation payable under the 1987 Act resulting from the injury he sustained to his low back in the incident occurring on 17 April 2016. I am satisfied the aggravating injuries I have determined Mr Mulcahy sustained to his low back and right shoulder on 21 June 2019 have materially contributed to the incapacity for work Mr Mulcahy has suffered since he ceased working on 12 September 2019, and I accept Mr Beran’s submission Mr Mulcahy has an entitlement to weekly compensation calculated with reference to his pre-injury average weekly earnings at the time of the incident occurring on 21 June 2019, with credit for weekly compensation already paid to Mr Mulcahy since 12 September 2019.
Accordingly, Mr Mulcahy’s entitlement under s 36(1)(a) of the 1987 Act is $1,235 and Mr Mulcahy’s entitlement under s 37(1)(a) of the 1987 Act is $1,040 (subject to indexation), with credit for weekly compensation paid to Mr Mulcahy since 12 September 2019.

SUMMARY

Mr Mulcahy sustained injury to his low back and right shoulder on 21 June 2019 in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition in the course of his employment with Workforce, with his employment being the main contributing factor to injury.
Mr Mulcahy has had no current capacity for work resulting from injury sustained on 21 June 2019 from 15 September 2019. Mr Mulcahy has entitlement to weekly compensation payable under s 36 and s 37 of the 1987 Act resulting from injury sustained to his low back and right shoulder on 21 June 2019, from 15 September 2019. Workforce is to pay Mr Mulcahy weekly compensation payable under s 36(1)(a) of the 1987 Act at the rate of $1,235 and payable under s 37(1)(a) of the 1987 Act at the rate of $1,040 (subject to indexation) from 15 September 2019.
Workforce is to have credit for weekly compensation paid to Mr Mulcahy under the 1987 Act since 15 September 2019.

[2022] NSWPIC 608

3 November 2022