Nabbe v Skilled Workforce Solutions (NSW) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nabbe v Skilled Workforce Solutions (NSW) Pty Ltd [2025] NSWPIC 404
APPLICANT:	Wayne Nabbe
RESPONDENT:	Skilled Workforce Solutions (NSW) Pty Limited
MEMBER:	Cameron Burge
DATE OF DECISION:	13 August 2025
CATCHWORDS:	WORKERS COMPENSATION -Workers Compensation Act 1987; consequential condition; claim for permanent impairment compensation; whether applicant suffered a consequential cervical spine condition as a result of an accepted right shoulder injury; Held – the existence of a consequential condition is a question of causation and must be determined after a commonsense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates followed; an injured worker need not establish the presence of pathological change consistent with a section 4 injury in order to establish a consequential condition; Kumar v Royal Comfort Bedding Pty Ltd, Moon v Conmah Pty Ltd, and Australian traineeship System v Turner referred to; award for the respondent on the claimed consequential condition; as the impairment in relation to the accepted right shoulder injury does not exceed the relevant section 66 threshold there will be an award for the respondent on the claim for permanent impairment compensation.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to his right upper extremity (shoulder) in the course of his employment with the respondent on 25 April 2004. 2. Award for the respondent on the claim for consequential condition to the cervical spine. 3. Award for the respondent on the claim for permanent impairment compensation. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

On ANZAC Day 2004, Wayne Nabbe (the applicant) was working as a picker and packer for the respondent, Skilled Workforce Solutions Pty Limited at the Dairy Farmer's factory in Bomaderry, New South Wales.
In the course of his employment, the applicant was required to move crates of milk which were stacked six high in a cold room. He would then carry the crates to a location where a forklift driver would pick them up and place them onto the back of a semi-trailer. The crates of milk weighed approximately 20kg and the applicant was tasked with moving well over 100 crates on any given day.
On the date of injury, the applicant was in the process of grabbing a crate of milk which was stacked six high, and as he was holding the crate overhead with both arms and began to lower it, he lost control and in doing so experienced sharp pain in his right shoulder.
The applicant's right shoulder injury is admitted. He brings a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The applicant also claims that as a consequence of his accepted right shoulder injury, he has developed a consequential condition to his cervical spine.
The alleged consequential condition to the neck is disputed, and the parties also agree the applicant's permanent impairment arising from his accepted right shoulder injury does not satisfy the threshold requirements of s 66 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the only issue for determination is whether the applicant suffered a consequential condition to his cervical spine as a result of his accepted right shoulder injury.
The parties agree that if this question is resolved in the applicant's favour, then both the cervical spine and right upper extremity (shoulder) will be referred for assessment by a Medical Assessor.
The parties also agree if there is a finding in the respondent’s favour on the claim for consequential condition, there will be an award in its favour on the claim for permanent impairment compensation generally, as neither Independent Medical Examiner (IME) retained by the parties assesses the applicant as suffering from a permanent impairment of greater than 10% whole person impairment.

PROCEDURE BEFORE THE PERSONAL INJURY 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.
The parties attended a hearing on 11 August 2025. Mr McManamey instructed by Mr Legzdin appeared for the applicant. Mr Stiles instructed by Ms Doley appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    respondent's Application to Lodge Additional Documents and attachments dated 30 July 2025.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a consequential condition to his cervical spine

A question of whether the consequential condition exists is one of causation and therefore must be determined by reference to a commonsense evaluation of the causal chain: see Kooragang Cement Pty Ltd v Bates (1994) 95 NSWLR 452 (Kooragang). The authorities also make it clear there is no need for an injured worker to establish a sudden or identifiable pathological change in order to establish the presence of such a condition: Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWCCPD 8 (Kumar); Moon v Conmah Pty Ltd [2009] NSWCCPD 134 (Moon) and Australian traineeship System v Turner [2012] NSWCCPD 4, (Turner). That is, the applicant does not need to meet the requirements of establishing s 4 injury in order to prove a consequential condition exists.
In Kumar, Deputy President Roche cited the decision of Kirby P in Kooragang at 462E, where his Honour said:
"… it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
In Kooragang, Kirby P made clear that the mere passage of time between a work incident and subsequent incapacity is not determinative of the entitlement to compensation. Rather, in each case, the question of whether the incapacity or death results from an accepted work injury is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinion.
As his Honour noted, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may happen as a result of a novus actus interveniens (intervening act), or it may be explained in terms of a lack of sufficient connection. Regardless, it is important to return to the statutory formula and to ask the question whether the disputed consequential condition has resulted from the work injury.
In Kooragang, Kirby P concluded the Court was left with “an unbroken chain of undisputed evidence” which, in combination went “beyond mere predisposing circumstances” and which combined to make it “proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train.”
The day after the injury at issue, the applicant attended Southern Polyclinic and was prescribed Naprosyn. He then received a guided cortisone injection to his shoulder which was of no assistance, and an ultrasound revealed the presence of subdeltoid bursitis.
In his initial statement, the applicant says that from 2004 until 2014 he treated his shoulder injury conservatively. At [48] the applicant said “As time went on, I began to notice increasing pain in my right shoulder. I was living out of my car and did not have a mattress to sleep, meaning I was always sleeping on a hard surface.”
In or about January 2014, the applicant went for further tests on his right shoulder and underwent some further radiological investigations. He had an unsuccessful steroid injection to his shoulder in February 2014.
In his initial statement, the applicant referred to his current condition as follows:
“55. The condition of my right shoulder has progressively worsened over time.
56. Over the last few years, I have noticed a lump in my right shoulder which is getting bigger.
57. I have also begun to experience issues with my neck.
58. The pain in my right shoulder extends down my right arm.
59. I have given up on applying for jobs as a result of my physical symptoms.
60. I am unsure as to whether I am able to return to the workforce.
Injuries
61. As a result of the accident, I have suffered the following injuries:
a.Injury to the right shoulder.
b.Referred pain in the neck.”
In his third statement dated 19 June 2023, the applicant said:
“3. I am still suffering ongoing pain in my right shoulder, which radiates down my right arm and up the right side of my neck.
4. I continue to have restricted movement in my right shoulder with difficulty reaching and pushing.
5. I also have restricted range of motion in my neck, mostly on the right side.
6. Overtime, I have noticed an increase in the pain and stiffness in my neck which I believe arose as a consequence of my shoulder injury. The muscles around my shoulder and the right side of my neck are very tight and stiff due to being in constant pain. I get pain radiating from my shoulder to my trapezius muscles and the right side of the neck.”
The first reference to the applicant having neck symptoms in any medical material is found in a report from treating surgeon Dr Jansen to general practitioner (GP) Dr Floro dated
13 February 2018. In that report, Dr Jansen took a history of the applicant getting some “intermittent neck and shoulder pain.” Dr Jansen described the applicant's neck range of motion on examination as “free without shoulder pain.”
Dr Jansen again saw the applicant in June 2018, at which time he referred only to shoulder issues.
On 4 July 2019, the applicant attended on Dr Sarvanandan, GP at which time the doctor noted the applicant took Panadeine Forte for “pain in knee/shoulder/neck.”
Mr McManamey submitted it was apparent the applicant had suffered neck pain in 2016, but probably for some time sooner, against a background of the accepted shoulder restriction.
Dr Deveridge, general surgeon, provided a report to the applicant's former solicitors dated 23 February 2016 in which he assessed the applicant's shoulder impairment only, presumably in accordance with the instructions of the applicant’s former solicitors.
Dr Ho, orthopaedic surgeon, peculiarly saw the applicant in two capacities; initially as an IME for the respondent which led to a report dated 18 May 2017 and then in his capacity as a treating orthopaedic surgeon, which consultation led to him authoring a report dated
8 November 2017.
In his initial report of 18 May 2017, Dr Ho recorded the following present complaints:
“The pain, according to him, is centred around the top [of the shoulder] and it also hurts to move the neck as well but he did not notice any obvious stiffness in the right shoulder.”
On examination, Dr Ho noted the applicant's neck movement was restricted on rotation to the right.
There was no reference to any neck issues in Dr Ho's treating surgeon report dated 8 November 2017.
The applicant's IME, Dr Bodel provided three reports. In the first dated 24 November 2022, Dr Bodel recorded a history of over eight years since the applicant consulted his GP and that “the continuing pain in the neck and the right shoulder has been treated conservatively over that whole period of time.” Dr Bodel described the applicant as having suffered injury to both the neck and right shoulder in the incident at issue.
As Mr McManamey conceded, Dr Bodel's history that the applicant's neck issues went back to the injury in 2004 is incorrect.
In his second report dated 20 August 2024, Dr Bodel had the benefit of scans of the cervical spine which confirmed the presence of degenerative disc disease. At this point, Dr Bodel described the applicant as having an injury in the nature of an aggravation or exacerbation of the cervical spine disease process, which is contrary to the basis on which the applicant now presents his claim.
In his final report dated 21 May 2025, Dr Bodel was specifically asked whether the right shoulder injury had materially contributed to the cervical spine condition. Dr Bodel said:
“He was left with significant structural damage to the region of the right shoulder as a result of a frank injury that occurred at that time 20 years ago. The abnormality seen on scans of his neck are degenerative conditions primarily constitutionally based and genetically determined. The abnormal shoulder, however, has put an undue load on that area of degenerative change and over time has caused an aggravation, acceleration, exacerbation and deterioration to that disease process as I have indicated previously.”
Mr McManamey submitted Dr Bodel's report, supported as it is by references from approximately 2016 onwards of neck issues provides a basis for a causal connection between the accepted right shoulder injury and the cervical spine consequential condition. He contrasted Dr Cadden’s opinion for the respondent, in which the doctor worked on the supposition there was no neck pain until 2022 when in fact it had been present since 2016. Mr McManamey submitted as such, Dr Cadden's views were plainly not based on an accurate history.
In a second report dated 28 July 2023, Dr Cadden attributed the applicant's neck symptoms to sleeping in a van and not having a pillow to support his head. The applicant's final supplementary statement (which I have little difficulty accepting) notes he is able to sleep relatively comfortably in his van, however, his initial statement noted as he was living in a car, he was “always sleeping on a hard surface.”.
In the respondent's ALAD, Dr Cadden provided a further report in which he reiterated the erroneous history of there being no history of pain to the cervical spine until 2022.
The difficulty for the applicant in attacking Dr Cadden's opinion is that his own IME, Dr Bodel initially indicated there were neck symptoms from the date of injury, rather than many years later. In other words, each of the IMEs have based their views on incorrect histories, albeit different incorrect histories from one another.
As Mr Stiles noted, the first reference to any neck symptoms was in the applicant's statement of December 2016, some 12 years post injury. At that point, the applicant did not assert the condition was linked to his shoulder injury, he simply complained about it. Dr Ho's report of May 2017 made reference to neck symptoms, however, it then focused on the right shoulder injury having diagnosed the applicant's condition as spondylosis.
+Mr McManamey noted that neither Dr Cadden nor Dr Ho had engaged with the question of whether the cervical spine was a consequential condition, but at the point in time when they provided their initial reports, neither had the applicant. At the time of the earliest reports of those doctors, there was no complaint of neck issues, and once those symptoms developed, the case was initially presented on the basis of Dr Bodel's opinion as a frank injury, or at the worst, injury in the nature of aggravation.
The applicant has previously brought proceedings seeking payment of weekly compensation in relation to this injury. In a Certificate of Determination dated 8 August 2017, Arbitrator Dalley of the then Workers Compensation Commission awarded the applicant weekly compensation in relation to the right shoulder injury. Throughout the course of Arbitrator Dalley's reasons, there is no mention whatsoever of any neck symptoms.
Mr Stiles also noted that whilst Dr Janssen in February 2018 recorded intermittent neck pain, he then only referred the applicant for an MRI of his shoulder, not of the neck.
The physiotherapist, Mr Naseby provided clinical records which form part of the applicant's case. They included a report to the applicant's GP dated 13 July 2018 in which he noted a 20-plus year history of right shoulder pain following a workplace injury. There was no history of complaints relating to neck problems in that report, nor in a later report to the applicant's GP forwarded on 16 July 2019. In the latter report, the applicant reported to the GP “as I am sure you are aware, Wayne has a long history of shoulder, knee and back pain. He believes his knee pain stems from an assault 12 years ago and his back pain is a result of his living situation.”
The applicant's GP Dr Floro again referred to the applicant's neck problem in a clinical entry dated 16 November 2021. The history on that occasion recorded “dizzy since head injury 2016 on off, worse recently–MOIN neck pain/no headaches/diplopia monitor.”
As Mr Stiles noted, other than that clinical entry, there is no information provided in relation to the head injury allegedly suffered by the applicant in 2016. Relevantly, Mr Stiles submitted, that entry coincides with the applicant's first statement in which he made mention of neck problems.
Mr Stiles also attacked Dr Bodel's reports, noting that although the applicant's IME stated the injured right shoulder placed an increased load on the cervical spine, he has not said what the “undue load” is, or in what manner it was placed on the neck.
Mr Stiles took the Commission to the report of Dr Cadden dated 16 March 2023, in which the doctor took the following relevant history:
“Over the past 12 months he has been describing an increase in pain to the right side of his neck. He will describe pain when trying to turn to the right or if he tries to look up. There has been no incident of injury to the neck. There is no pain to his neck with the original work-related injury. He described his sleeping arrangement which consists of him trying to sleep in a van on a semi-mattress and in a very tight space. He has no pillow to sleep on, being forced to sleep in the van as he has nowhere else to sleep.”
As noted, the applicant refutes Dr Cadden's history in relation to the absence of a pillow and says he sleeps quite comfortably in his van, despite to an extent attributing his sleeping arrangements on a hard surface to the deterioration I his shoulder symptoms.
Mr McManamey submitted that as there were only two hypotheses for the genesis of the neck pain, namely it was either caused by sleeping in the van or as a consequence of the accepted shoulder injury, the Commission ought to favour the consequential condition hypothesis given the applicant slept comfortably in his van, contrary to Dr Cadden’s report.
I cannot accept that submission, noting as I do the applicant has the onus of proving the causal link between the accepted injury and the neck condition. A mere finding against Dr Cadden’s hypothesis is not, in my view, sufficient to satisfy the applicant’s burden of proof in circumstances where there is clear evidence of underlying pathology in his cervical spine which only became symptomatic over a decade after the injury at issue.
This is particularly the case where Dr Bodel’s opinion across his three reports has changed from a finding of frank soft tissue injury to the cervical spine in his first; through a diagnosis of aggravation of underlying pathology in the frank injury at issue in his second, before his final report asserted the abnormal shoulder has put “put an undue load on that area of degenerative change [the neck] and over time has caused an aggravation” which grounds the allegation of consequential condition. There is no clear statement by Dr Bodel as to why his opinion on the matter of causation of the neck symptoms has altered over time.

Additionally, Mr McManamey submitted if the Commission accepted the applicant’s sleeping arrangements were the cause of his neck symptoms, they were still causally linked to his injury, as the loss of employment led to his homelessness. However, there is no evidence that this is the case. While the applicant deposes to living in his car and having been homeless for an extended period, he also assisted his stepfather with the building of a home for the applicant’s mother post-injury, and it is not clear at all from his statements as to how he came to be living in his van, when or why, other than his evidence he has been unable to receive homelessness assistance.
On balance, I am not satisfied the onus of proof has been discharged. While Kirby P made it clear the mere effluxion of time does not sever a causal connection, it is still incumbent upon the applicant to present sufficient evidence to establish such connection in the first place. What appears to have happened in this instance is the applicant has had a serious and accepted right shoulder injury, then many years later developed neck symptoms for reasons which are unclear.
The applicant is now a 59-year-old man. The radiology clearly discloses the presence of underlying degenerative changes in his neck, which is not unusual in a person of his age. Given the very lengthy gap between the 2004 injury and the onset of neck symptoms in or about 2015 or 2016, and even then, such symptoms being only periodic before they eventually worsened, I am not satisfied the applicant has established a causal connection between those symptoms and the right shoulder injury. The applicant deposes to his view the neck complaints are linked to the right shoulder, but there is scant evidence to persuade me this is the case.
Although the presence of a consequential condition is not considered a high bar to clear; a decision maker must nevertheless have an actual persuasion of the existence of a relevant fact in issue: Nguyen v Cosmopolitan Homes [2008] NSWCA 246. In this instance, I do not.
I have great sympathy for the applicant's predicament, as he has clearly had a number of physical and psychological issues which are serious in nature, and which must be extremely difficult to deal with.
However, what is required is a commonsense evaluation of the lay and medical evidence. Essentially, the applicant is asking the Commission to simply accept that because he had a right shoulder problem and then developed neck symptoms many years later in a relatively adjacent body system, the two must be connected.
I am not persuaded by Dr Bodel's view that they are. He has changed his opinion as to whether there was a neck injury, or whether the condition is consequent upon the right shoulder. Likewise, the applicant's treating practitioners do not provide sufficient persuasive commentary on causation to satisfy the onus of proof held by the applicant.
Accordingly, there will be an award for the respondent on the claim for consequential condition to the cervical spine.
It follows from the manner in which these proceedings are being conducted, that there will be an award for the respondent on the overall claim for permanent impairment compensation noting no IME opinion in relation to the accepted right shoulder injury satisfies the s 66 threshold requirements.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2025] NSWPIC 404

13 August 2025