Nemra v Stuart Dickson Produce Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nemra v Stuart Dickson Produce Pty Ltd [2024] NSWPIC 599
APPLICANT:	Mohamed Nemra
RESPONDENT:	Stuart Dickson Produce Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	25 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant was involved in accident when driving forklift on 10 June 2020; the respondent agrees he sustained an injury to his cervical spine and lumbar spine but disputes he sustained any injury to his right shoulder; Mason v Demasi & Anor and Bradshaw v McEwans Pty Ltd discussed; Held – the applicant has not discharged his onus of proof that he sustained an injury to his right shoulder on 10 June 2020; award for the respondent in relation to the allegation of right shoulder injury; the lump sum claims relating to the cervical spine and lumbar spines are remitted to the President for referral to Medical Assessor to assess permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in relation to the allegation of right shoulder injury. 2. The lump sum claim is remitted to the President for referral to a Medical Assessor as follows: a. Body systems: cervical spine, lumbar spine b. Method of assessment: whole person impairment c. Date of injury: 10 June 2020 d. Documents to be referred: Application to Resolve a Dispute, Application to Admit Late Documents dated 17 July 2024 filed by the respondent attaching the Reply excepting the report from Dr Hitchen dated 26 May 2023 is only referred as to the history obtained by the doctor.

STATEMENT OF REASONS

BACKGROUND

Mohamed Nemra, the applicant, was driving a forklift in the course of his employment with the respondent, Stuart Dickson Produce Pty Ltd, on 10 June 2020 when another forklift driver collided into him causing his vehicle to spin and collide with a stationary truck. As a result he alleges he sustained various injuries.
The Application to Resolve a Dispute (ARD) was amended to add “right shoulder” to the injury description.
In these proceedings he seeks lump sum compensation pursuant to s66 of the Workers Compensation Act 1987 (the 1987 Act) in relation to his cervical and lumbar spine and right upper extremity.
The only issue in dispute is whether Mr Nemra sustained an injury to his right shoulder pursuant to s 4(a) of the 1987 Act on 10 June 2020.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded before me in arbitration hearing on 7 August 2024 on the MS Teams platform. Mr Jarryd Malouf, counsel, instructed by Ms Nadene Alawie, solicitor, appeared on behalf of Mr Nemra, who was present. Mr Daniel Stiles, counsel, appeared for the respondent and was instructed initially by Ms Emma Blackburn, solicitor, and then Ms Dakota Woods and Ms Williams from the insurer.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Application to Admit Late Documents dated 17 July 2024 filed by the respondent attaching the Reply. However, the report from Dr Hitchen dated 26 May 2023 was admitted only as to the history obtained by the doctor.
I note pages 123 to 173 of the ARD are duplicates of pages 74 to 123.

Oral evidence

There was no oral evidence. Both counsel made oral submissions which were sound recorded. A copy of the recording is available to the parties.

FINDINGS AND REASONS

Mr Nemra commenced employment with the respondent in 2009 as a labourer and by 2016 he had worked his way up to be a warehouse manager (2IC) and forklift driver. In [13] of his statement dated 15 September 2023 he lists the injuries he sustained in the course of his work on 10 June 2020 as follows:
“a.     Neck and radicular arm pain,
b.      Lower back and radicular left and right leg pain,
c.      Major depressive order with anxious distress, irritability, and low-grade suicidal ideation; and
d.     Erectile dysfunction.”
At [14] he describes how the accident occurred including that he felt a strong impact on his back as he was hit on the right rear side of the forklift he was driving by another forklift. As a result of this impact he says his forklift was spun into the rear of a parked truck, crashing into it on his left side. He says initially he was in shock and only felt a slight pain in his neck and back. He carried out the rest of his shift and then reported the incident to his supervisor.
Mr Nemra says when he got home he had a shower and lay down in bed and his pain started to increase. He had a severe burning discomfort across his lower back radiating down his legs and a sharp pain in his neck which increased with movement. At [16] he describes consulting Dr Aladdin Matter, general practitioner, and explained that he had injured his neck and back at work and that he was getting shooting pain down his shoulders, back, arms and lower back. He also describes being referred for CT scans of his neck and back and in June 2020 his physiotherapist, Mr Alam, would massage his neck and lower back.
Mr Nemra also describes his treatment with various specialists but he does not refer to a shoulder injury. When describing his neck he refers to pain radiating through both arms. At [32] he states through 2022 to the present he continues to experience neck pain that radiates to the base of his skull and between both shoulders that intermittently shoots down his arm and into his fingers, causing numbness and pins and needles.
In his second statement dated 19 June 2024 he says he has made it to address the medico-legal appointments with Dr Bodel and Dr Gothelf. I find that this statement reads more like a submission than an evidentiary statement. He does state at [11] that the pain and limitations in his right shoulder began following the workplace injury. He also says that the appointment with Dr Gothelf was unusually brief and did not allow sufficient time to discuss nuances and ongoing issues related to his injuries.
Because Mr Nemra has not recounted in his statement actually hurting his right shoulder and he uses language “radiation of pain” from his neck to his shoulders I find in order to determine if he did in fact sustain an injury to his right shoulder it is important to consider the histories he has given to the various medical and allied health practitioners about what happened to him on 10 June 2020 and their examination findings.
His treating general practitioner is Dr Aladdin Matter who has treated Mr Nemra since 2018. On 5 May 2018 the doctor requested an ultrasound of the right shoulder referring to tenosynovitis.[1] The doctor’s clinical note for that day makes no reference to the shoulder apart from this investigation request, nor do the subsequent clinical entries. Most of the entries refer to lower back and leg pain since an accident at work together with psychological complaints. However, “mild cervical tenderness” was recorded on 17 September, 15 November 2018,[2] 20 December 2018[3] and 1 March 2019,[4] 25 May 2020[5] and 8 June 2020.[6]
[1] ARD p 252.
[2] ARD pp 265 and 270.
[3] ARD p 277.
[4] ARD p 282.
[5] ARD p 322.
[6] ARD p 323.
On 24 April 2019 Dr Matter recorded that Mr Nemra “presents with cervical pain associated with pain [sic] and needles sensations in the arms for 2 months history”.[7] The doctor tentatively made a diagnosis of cervical spine impingement. The reason for visit was stated as “Neck injury”. There was little improvement in the consultation on 14 June 2020.
[7] ARD p 287.
On 10 June 2020 Dr Matter recorded that Mr Nemra attended with back and neck pain after an injury at work. He added that there was no sign of numbness or weakness. His diagnosis was myoligamentous strain injury of spine, region lumbar. He ordered CT scans of lumbar, thoracic and cervical spines.[8]
[8] ARD p 324.
On 11 June 2020 Mr Nemra underwent a CT cervical scan with the clinical history recorded as “severe back pain and stiffness”.[9] The radiologist found broad based disc osteophyte complex at C5/6 level causing right sided neural foraminal narrowing and compression upon the right exiting nerve root and at C6/7 level causing left sided foraminal narrowing and compression upon the exiting nerve root.
[9] ARD p 240.
The physiotherapist Musab Alam examined him on 13 June 2020.[10] He refers to “Initial WorkCover assessment and treatment of 2 area injury” and that Mr Nemra reported pain in his neck, mid back and lower back and “radiating symptoms” from his neck into his left arm. Mr Alam under the heading “objective” notes the cervical rotation to the right side is limited to 40% and to the left to 30% and cervical extension 10% into the range aggravates the pain. Mr Alam does not refer to a right shoulder injury. On 16 June 2020 Mr Alam treated Mr Nemra recording “cervical spine: Ongoing restrictions in AROM with associated mm spasm (upper trapezius, levator scap) and joint stiffness through lower cervical spine”. Mr Alam does not diagnose a shoulder injury.[11]
[10] ARD p 122.
[11] ARD p 121.
On 25 June 2020 Dr Matter recorded that Mr Nemra presented with neck and arm pains, he has headache and pins and needles in the arms after the forklift accident at work. The neck pain was noted to be severe and radiating up the back and lower limbs. He felt stiffness in the area around the neck and mid back. The doctor noted mild cervical spine tenderness and diagnosed “?cervical spine impingement”.[12] Similar entries were made throughout 2020.
[12] ARD p 329.
On 29 June 2020 Mr Alam recorded a subjective complaint that “neck pain travels from the neck into bilateral shoulders and midback”.[13] On 13 July 2020 Mr Alam recorded subjective complaints of neck pain with occasional radiating symptoms down both arms, more frequent down the left arm. Mr Nemra also reported occasional pressure from his neck going into the back of his head.[14]
[13] ARD p 120.
[14] ARD p 119.
Throughout 2020 and 2021 Mr Alam continued to treat Mr Nemra but there is no reference to a shoulder injury.
On 30 June 2020 Dr Matter referred Mr Nemra to Dr McKechnie, neurosurgeon. The referral refers to the injury as a whiplash injury with significant symptoms.[15]
[15] ARD p 239.
On 27 July 2020 Dr McKechnie reviewed Mr Nemra and reported to Dr Matter about the forklift accident on 10 June 2020 and the development of the onset of neck pain, thoracic and lower back pain with radiation intermittently through the left arm and leg with less severe symptoms on the right side.[16] Dr McKechnie’s handwritten note of this consultation refers to pain in both arms, left greater than the right.[17]
[16] ARD p 177.
[17] ARD p 238.
On 3 August 2020 at Dr McKechnie’s request an MRI cervical spine scan was performed with findings including the presence of likely exiting C6 nerve impingement at C5/6 and exiting C7 nerve impingement at C6/7.[18]
[18] ARD p 236 and Reply p 60.
On 10 August 2020 Dr Matter refers to same complaints consisting of pain and compression at lower lumbar region, neck and arm pains and on 13 August 2020 the doctor noted Mr Nemra presents with recurrent attacks of compression symptoms at the cervical region.[19]
[19] ARD p 336.
On 17 August 2020 Dr McKechnie reported that Mr Nemra was still complaining of chronic neck pain radiating across both shoulders and into the arms as well as lower back and leg pain. He sets out the MRI scan findings of moderate cervical canal stenosis due to hypertrophy of the posterior longitudinal ligament from C4 to C7 and moderate to severe bilateral C6/7 foraminal stenosis and moderate C5/6 foraminal stenosis. He refers also to bilateral C6 and C7 nerve root impingement.[20]
[20] ARD p 204.
On 15 September 2020 Dr McKechnie reported that Mr Nemra complained of neck pain radiating through both arms, worse on the left side.[21] In review on 10 November 2020 the doctor said this pain was consistent with the MRI findings of bilateral C6 and C7 nerve root compression.[22]
[21] ARD p 205.
[22] ARD p 206.
On 24 September 2020 Dr Matter noted that Mr Nemra complained of severe pain caused by ligamentous trauma at spinal muscles. “pain originates from neck and radiates to arms and lumbar parts.”[23]
[23] ARD p 343.
On 25 November 2020 Mr Nemra underwent a CT Guided left C6 nerve root injection upon the referral from Dr McKechnie. The clinical note on the radiologist’s report refers to
“C5/6, and C6/7 discs.
Left greater than right arm pain”.[24]
[24] ARD p 226 and Reply p 62.
Apparently Mr Nemra found it difficult to tolerate the above procedure and an injection was performed at C7 on 3 December 2020.[25]
[25] ARD p 225.
On 14 December 2020 Dr McKechnie recorded that the cortisone injection improved the pain for a few days only and then it returned.[26]
[26] ARD p 207.
On 21 January 2021 Dr McKechnie reported that Mr Nemra was complaining of more severe neck pain radiating bilaterally through the arms consistent with the previous MRI findings of broad-based C5/6 and C6/7 disc protrusions.[27] On 23 February 2021 Dr McKechnie again referred to neck and bilateral arm pain. On 31 May 2021 Dr McKechnie refers to another exacerbation of pain mainly across the neck radiating inferiorly to the thoracic region which was now subsiding.[28]
[27] ARD p 178.
[28] ARD p 181.
On 10 May 2021 Mr Alam reported that Mr Nemra states that he experiences a sharp pain from his left upper cervical spine down into his left upper trapezius and rhomboid region in addition to down his left arm.[29] Objective findings were recorded of rhomboid muscle spasm with associated upper thoracic facet joint stiffness and upper trapezius muscle spasm with associated lower cervical facet joint stiffness. Ongoing muscular spasm and hypertonicity in upper thoracic and cervical spine musculature (Trapezius, SCM, Levator Scap) with associated cervical facet joint stiffness C2-7.[30]
[29] ARD p 104.
[30] ARD p 103.
On 7 June 2021 Dr Matter recorded that Mr Nemra had developed tenosynovitis that is caused by an injury however he does not state what injury.[31] He diagnosed Dequervain’s tenosynovitis and requested an ultrasound of the right wrist noting the possible ganglion due to dorsal small mass.[32]
[31] ARD p 375.
[32] ARD p 376.
On 8 June 2021 Mr Nemra underwent an MRI cervical spine scan. The clinical history is “neck pain and bilateral arm pain”.[33] On 1 July 2021 Dr McKechnie reported that Mr Nemra was clinically unchanged with neck, thoracic and lower back pain with pain radiating through both arms. He recommended an anterior C5/6 and C6/7 discectomy and fusion to treat the neck and bilateral arm pain.[34]
[33] ARD p 222 and Reply p 63.
[34] ARD p 182.
On 19 July 2021 Mr Alam recorded that Mr Nemra reported spasm in mid upper back and neck[35] and he set out the same objective findings as previously.
[35] ARD p 100.
On 12 August 2021 Dr McKechnie reported that Mr Nemra was still complaining of persistent neck and bilateral shoulder and arm pain consistent with the MRI findings of bilateral C6 and C7 nerve root impingement.[36] In report from a review on 15 September 2021 Dr McKechnie said surgery in the form of an anterior C5/6 and C6/7 discectomy and fusion would give an 85 to 90% chance of significant improvement in the shoulder and arm pain but the neck pain would likely persist.[37]
[36] ARD p 183.
[37] ARD p 184.
On 23 September 2021 Mr Alam recorded that Mr Nemra reported ongoing sharp pain in his right upper back that also travels into his neck and is causing him dizziness. He was unable to extend his neck at all as it caused sharp pain and increased dizziness. Mr Alam recorded objective findings of “severe mm spasm in right mid trap and upper trap with associated severe cervical facet joint stiffness and restricted cervical rotation. Cervical rotation to R is 20% of normal range limits with sharp pain”.[38]
[38] ARD p 93.
On 4 October 2021 Mr Alam recorded Mr Nemra’s subjective complaints including that he was experiencing ongoing pain in his cervical spine bilaterally and that cervical rotation to either side reproduces the radiating symptoms down his arm. He said cervical rotation to his left was worse than the right.[39] From 18 October 2021[40] Mr Nemra reported to Mr Alam the cervical pain was severe and sharp and right sided and on 25 October 2021 the radiation of pain was down the right arm[41] and thereafter the radiation of pain was worse on right to left side.
[39] ARD p 91.
[40] ARD p 87.
[41] ARD p 86.
On 6 June 2022 Dr McKechnie filled out a Medical Statement for MetLife-CareSuper in which he refers to Mr Nemra having sustained injury on 10 June 2020 and experienced the onset of neck, thoracic, lumbar, arm and leg pain.[42]
[42] ARD p 214.
Dr McKechnie continued to review Mr Nemra throughout 2021 and 2022 and on the review of 23 August 2022 he reported that the neck pain remained stable since the MRI scan in 2021.[43] On the review on 15 November 2022 Dr McKechnie reported that he was complaining of worsening neck pain which the doctor said was mechanical in nature.[44]
[43] ARD p 193.
[44] ARD p 196.
On 28 November 2022 a whole body bone scan with SPECT was performed at the request of Dr McKechnie. There is reference to uptake consistent with arthropathy is demonstrated in the right C6/7 facet joint. There is reference to other vertebral parts and the right wrist and “right acromioclavicular joint” but the conclusion was only “arthritic uptake including the right C6-7 facet joint”.[45]
[45] Reply p 68.
On 20 February 2023 Dr McKechnie reported that he had persistent neck and back pain and more recently the pain in the mid thoracic region had increased and radiates intermittently across his chest.[46]
[46] ARD p 198.
On the review on 7 September 2023 Dr McKechnie reported that over the last few weeks Mr Nemra had experienced increasingly severe pain radiating through the right arm and into his hand with sensory disturbance in his fingers, most prominent in the middle three fingers and also the thumb. The doctor referred to an MRI scan report showing C6 and C7 nerve root compression as a cause of his right arm and hand symptoms.[47]
[47] ARD p 203.
On 26 September 2023 Dr McKechnie reported to Dr Matter having reviewed Mr Nemra the day before. He writes that Mr Nemra felt increased pain in the neck radiating across the shoulder into the right arm and hand. The doctor advised he had reviewed the MRI scan findings showing disc protrusions at C4/5, C5/6 and C6/7 with right C5. C6 and C7 nerve root compression.[48]
[48] Reply p 37.
On 19 October 2023 Dr McKechnie reviewed Mr Nemra again noting persistent neck pain and mainly radiating through the aright arm with distal sensory disturbance.[49]
[49] Reply p 38.
Dr McKechnie continued to review Mr Nemra and in January 2024 he referred to persistent neck pain intermittently radiating through both arms.[50] On 9 April 2024 Dr McKechnie advised that he was clinically unchanged “with persistent neck and bilateral shoulder and arm pain consistent with previous MRI findings of nerve root compression”.[51]
[50] Reply p 40.
[51] Reply p 41.
From October 2021 and continuing into 2024 Mr Nemra was treated by Dr Faiz Noore, a consultant psychiatrist and specialist pain medication physician from Sydney Spine & Pain Rehab. His reports to Dr Matter, which he also sent to Dr McKechnie and the insurer, refer to Mr Nemra having “neck and radicular arm pain”. He does not mention a shoulder injury.
In report dated 16 November 2021 Dr Noore states that:
“Currently, Mr Nemra has neck pain that radiates into the base of his skull, the interscapular area, and both shoulders. He has intermittent shooting pain down his arm and into his lateral two fingers on both sides. He has numbness and pins and needles in his hands. His neck pain is exacerbated by neck movement, and neck extension causes dizziness.”[52]
[52] ARD p 43.

Dr Noore also diagnosed and treated Mr Nemra for a major depressive disorder with anxious distress and fluctuating suicidality as well as low back pain and left leg neuropathic pain from a previous injury.
Mr Nemra was treated in the Restore program which was run from Dr Noore’s clinic. On 15 March 2022 there is a consultation note “breathing and dropping shoulders, has been concentrating more trying to breath out then talk”.[53] And on 5 April 2022 it is recorded:
“Shoulders shrugged up
Trying to normalise movement painful ++
Slightest nerve glides painful”[54]
[53] ARD p 47.
[54] ARD p 52.
On 12 April 2022 there is a consultation note that seems to be about mainly the left leg however it is noted “neck/upper back pain is worse than LBP/leg pain à restricted sh motion and bilateral paraesthesia in hands”[55] and “struggling with sh ER/Abd due to pain”.[56] This could be abbreviations for “shoulder external rotation/abduction”. Similar notes are recorded on 26 April 2022[57] and 5 May 2022.[58] On 16 May 2022 a report was issued dealing with the psychological and chronic pain physiotherapy parts of the Restore program. In the history part of the report there is only mention of neck and lower back pain following the work accident on 10 June 2020. Under the physiotherapy assessment the pain location list included neck pain that radiates into the base of the skull, interscapular area and bilateral shoulders and restricted shoulder motion.[59]
[55] ARD p 53.
[56] ARD p 54.
[57] ARD p 57.
[58] ARD pp 58-60.
[59] ARD p 69.
He described in report dated 31 July 2023 the arm pain as “lancinating arm pain (L>R)”[60] but in the report dated 24 August 2023 the radicular arm pain was “right > left”. He stated that the right arm pain was relieved by placing his right hand on his head.[61]
[60] Reply p 42.
[61] Reply p 44.
On 7 March 2024 Dr Noore reported that Mr Nemra complained of neck pain which radiates down both arms into his ulnar fingers and he described the pain as sharp and he had pins and needles and numbness in his fingers.[62]
[62] Reply p 55.

Dr Bodel

Dr Bodel, orthopaedic surgeon, issued a medico-legal report for Mr Nemra’s solicitors dated 8 December 2023.[63] He lists the summary of injuries as an injury to the neck, injury to the back, shooting pains and numbness into both arms and radiating pain into both legs. He takes a history of the accident on 10 June 2020 and records that Mr Nemra “was in pain generally in the neck, the back and arms and legs and ‘shocked’”. The rest of the history does not refer to the shoulders.
[63] ARD p 21.
Dr Bodel lists Mr Nemra’s current complaints which relevantly include pain in the neck, head down posture or use of the arms overhead can aggravate the pain, referred pain down both arms, right worse than the left. The doctor sets out his examination findings including restricted right shoulder movement and impingement in the right shoulder but not the left. He found no sign of clinical radiculopathy in the upper limbs. Dr Bodel had no tests available for him to review. The doctor comments on the relevant documentation that was available to him, and I note he does not mention a shoulder injury.
Dr Bodel diagnoses soft tissue injury to the neck with disc pathology and non-verifiable radicular complaints in the upper limbs and rotator cuff pathology in the right shoulder. This is the only reference to an injury to the shoulder in the report and in addition Dr Bodel assesses the degree of permanent impairment in the right shoulder at 6% whole person impairment (WPI) due to the restricted range of right shoulder movement.

Dr Hitchen

This report was admitted only to its history. It is dated 26 May 2023 and prepared for the respondent. There is no reference to Mr Nemra sustaining an injury to his right shoulder on 10 June 2020. The doctor records that at the time he experienced pain from his neck radiating all the way down his spine and at the present time he states the main problem is his neck, with constant ache throughout the neck that radiates to the back of both ears and down bilaterally into his trapezial regions. It is recorded that sudden neck movement can intensify this into a sharp pain and this can bring on pain radiating down both arms, the right worse than the left. He notices tingling and sometimes numbness affecting the middle and ring fingers.

Dr Gothelf

Dr Gothelf is an orthopaedic surgeon who has provided a medico-legal report for the respondent dated 22 April 2024. The doctor’s history of the accident makes no reference to a shoulder injury or pain. Mr Nemra told him he felt pain in his neck and back. Dr Gothelf summarised the reports from Dr McKechnie and Dr Noore as well as from Dr Bodel. In the section of his report dealing with Mr Nemra’s reported current status Dr Gothelf states that Mr Nemra denied any specific pains in the shoulder joints. He said the pain was localised to the neck up to the head and down the right posterior and left posterior shoulder blades and with movement there was more pain and numbness to both arms.
Dr Gothelf summarised all of the radiological investigations, relating to the spine. There are none of the shoulders. In relation to his examination of Mr Nemra’s shoulders Dr Gothelf stated that active movements of both shoulders according to Mr Nemra were hindered due to the experience of cervical neck pain and posterior shoulder pain with all movements. He found the measure of active shoulder motion was not a reliable indicator of the range of motion of both shoulders.
The doctor diagnosed the presence of a cervical spine strain, aggravation of underlying degenerative disc disease. In relation to the right shoulder he found no evidence of a right shoulder condition caused by the injury on 10 June 2020, giving five reasons. The reasons included no evidence of investigations of the right shoulder, no evidence of treatment for any right shoulder condition, Mr Nemra denying any specific injury to his right shoulder, the denial of any specific symptoms related to either shoulder joints, Mr Nemra confirmed the pain came from the neck and radiated to both sides of the shoulders and arms. Finally, Dr Gothelf found that movements of both shoulders were inhibited due to pain in the neck and posterior neck muscular region which he says is indicative of neck symptoms and not due to shoulder symptoms.

Determination

The applicant bears the onus of proving he has sustained an injury to his right shoulder from the incident on 10 June 2020 at work. I accept Mr Nemra’s counsel’s submission that the accident involved quite a significant force. However, while Mr Nemra has given detailed evidence about the impacts involved when another forklift hit the forklift he was driving and that subsequently his forklift was spun into the rear of a parked truck, he has not given evidence of him hitting his shoulder on his vehicle in the impacts. He does not actually refer to him injuring his shoulder in the accident. He refers to initially having pain in his neck and back. He does within a short time refer to experiencing shooting pains down his shoulders and arms.
The fact that he does not refer to a shoulder impact in the recount of the accident is not necessarily fatal to his claim but it does mean that the treating medical evidence needs to be considered carefully. I accept his counsel’s submission that Mr Nemra can only tell the doctors how he was feeling. I find that a lay person such as Mr Nemra cannot be expected to know the cause of any symptoms he experiences in his shoulders, particularly in the situation where it is accepted that he did sustain an injury to his cervical spine in the accident.
The courts have on many occasions cautioned first instance decision makers about the interpretation they make of doctors’ clinical notes. For instance in Mason v Demasi & Anor[64] Basten JA at [2] sets out some reasons for caution:
[64] [2009] NSWCA 227, Demasi.
“(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.”
However, in Mr Nemra’s case what I find to be striking and compelling evidence is that all of his medical practitioners have the same description of his pain in his neck “radiating” to his shoulder(s) and into his arm(s). Dr Matter, his general practitioner, and Dr McKechnie, his treating neurosurgeon, have examined Mr Nemra on numerous occasions over the years since 10 June 2020. Not once did they diagnose a shoulder injury. Dr McKechnie considered that the radiating pain was consistent with the MRI findings of bilateral C6 and C7 nerve root compression, such as in the consultation reports from 10 November 2020, 21 January 2021 and 12 August 2021. I also consider it relevant that at no stage did Dr Matter or Dr McKechnie order any radiological tests of the right shoulder. Dr McKechnie also had to turn his mind to what injuries were sustained on 10 June 2020 when he completed the MetLife-CareSuper form on 6 June 2022 he refers to neck, thoracic, lumbar, arm and leg pain. He does not identify any shoulder injury.
I find that not only has Mr Nemra consistently described his pain as radiating from his neck to his shoulders and down his arms, but Dr Matter and Dr McKechnie have recorded this consistently and found on multiple occasions it is due to the cervical pathology found on the MRI scan. Mr Nemra’s counsel submitted that references in Dr McKechnie’s reports to “neck pain radiating across both shoulders”[65] is consistent with a shoulder injury and the respondent cannot point to another cause for the shoulder injury than the incident on 10 June 2020. I reject this submission. As I have found Dr McKechnie has repeatedly found that the pain radiating from the neck across the shoulders and into the arms is due to the cervical pathology. The example counsel refers to is in the report from the consultation on 17 August 2020. However, the doctor goes on in the report to refer to the findings on the cervical MRI and specifically refers to bilateral C6 and C7 nerve root impingement.
[65] ARD p 204.
Furthermore, Mr Alam, the physiotherapist who treated Mr Nemra from three days post-accident, also does not find he suffered a shoulder injury in the accident. He also records the pain suffered by Mr Nemra is in the neck and radiating into his left arm, and later radiates to the bilateral shoulders and down both arms. Mr Nemra’s counsel submits that Mr Alam’s reference on 29 June 2020 to “left trapezius” and “scapular” as areas of pain are consistent with a shoulder injury. However, I find it is important to be careful in interpreting this entry in Mr Alam’s notes. He refers to “ongoing muscular spasm and hypertonicity in upper thoracic and cervical spine musculature”. He then puts in brackets “(trapezius, SCM, Levator scap)”. On a plain reading the parts in brackets qualifies the preceding words being upper thoracic and cervical musculature. For instance “SCM” is a likely reference to the sternocleidomastoid muscle and “levator scap” is not the same as the scapular. I find without actual medical evidence or evidence from Mr Alam I cannot infer this reference means Mr Nemra complained of pain in areas consistent with a shoulder injury. I find this is a matter of conjecture by counsel. Also one needs to bear in mind that Dr Bodel refers to rotator cuff pathology and Mr Alam does not refer to pain consistent with rotator cuff pathology. Mr Alam does not refer to the rotator cuff at all.
The High Court in Bradshaw v McEwans Pty Ltd[66] (1951) 217 ALR 1 at [5] said:
“It is enough [if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.”
[66] (1951) 217 ALR 1, Bradshaw.
If the applicant’s legal representatives were of the view that Mr Alam’s notes support a finding of a right shoulder injury they could have sought reports from Mr Alam, Dr McKechnie, and Dr Matter about the same. They also could have asked Dr Bodel about the significance of these entries. I cannot make an inference that these entries support a shoulder injury without such medical evidence.
In addition, Dr Noore also refers to Mr Nemra having neck and radicular arm pain. In 2022 in the Restore program there is reference to restricted shoulder motion, however there is no diagnosis of a shoulder injury.
Mr Nemra’s counsel submitted that when Mr Nemra told Dr Matter on 25 June 2020 that he “felt stiffness in the area around the neck and mid back” that would have included the shoulder. I do not accept this submission. For this submission to be accepted it is incumbent, in my view, for him to obtain a report from Dr Matter seeking clarification that such a description recorded by him would have included the shoulder. I find this submission is really no more than speculation that this is the correct interpretation of that entry. I find an inference cannot be drawn to that effect because equally it could be interpreted on its face as not including the shoulder.
The only suggestion that Mr Nemra has a shoulder injury is in the report of Dr Bodel. However, I find that Dr Bodel’s opinion in this regard cannot be accepted because he has not provided any reasoning. The doctor’s history of the accident does not refer to any shoulder injury. His list of the summary of injuries also does not include a shoulder injury. His description of Mr Nemra’s pain is that he had shooting pains and numbness into both arms, yet he diagnoses right shoulder rotator cuff pathology. Dr Bodel does not explain how such pathology could have been caused by the accident on 10 June 2020. He acknowledges he had no tests available for him to review.
By way of contrast Dr Gothelf has provided a very detailed report and opinion. He has considered Dr Bodel’s opinion and disagrees that there is evidence of a right shoulder injury. He offers five reasons for this conclusion, which I have referred to above. I find the most telling is that Mr Nemra confirmed that the pain came from his neck and radiated to both sides of the shoulders and arms. Furthermore, Dr Gothelf found that the movements of both shoulders were inhibited due to pain in the neck and posterior neck muscular region which Dr Gothelf states is indicative of neck symptoms and not due to shoulder symptoms. Another reason I prefer the opinion of Dr Gothelf over that of Dr Bodel is because he had available to him all the radiological investigations whereas Dr Bodel had none before him. While those investigations are only of the cervical spine and not the shoulders, they are still relevant because Dr McKechnie had identified that the cervical pathology caused the symptoms of pain radiating from the neck into the shoulders and down the arms. I find that an important part of the diagnostic process was for Dr Bodel to consider the radiology of the neck and he has not undertaken this in a thorough and considered manner.
I am cognisant of the contents of Mr Nemra’s second statement criticising the examination by Dr Gothelf. He said that the consultation was brief but does not give the time of the appointment. I note Dr Gothelf states in the heading of the report that the examination took 45 minutes. I do not consider this is an inadequate time for the examination.
As I stated earlier in these reasons, this statement reads more like a submission than an evidentiary statement. Mr Nemra’s counsel referred to [10] of this statement where Mr Nemra says he has experienced continuous pain and functional limitations in his right shoulder since the workplace injury. However, he does not give any details of this or examples of issues with the right shoulder, excepting describing “shooting pains” and “radiation” of pain. Also, Mr Nemra proceeds to say, “the ongoing discomfort and reduced range of motion in my shoulder are not solely attributable to cervical spine issues, as evidence [sic] by the specific symptoms localised to my right shoulder.” His counsel submitted at the outset that Mr Nemra cannot give an opinion as to the cause of shoulder pain and I find this second statement, in such paragraphs, is advocating a causal connection that he is not qualified to make.
The respondent submitted that Mr Nemra did not inform the doctors of specific localised symptoms in the right shoulder. I accept this submission because the treating material which has been summarised above does not disclose any such report or history of shoulder symptoms excepting the radicular symptoms which Dr McKechnie attributes to the cervical pathology.
For these reasons I find that Mr Nemra has not discharged his onus of proof that on 10 June 2020 he sustained an injury to his right shoulder in that accident. I find an award for the respondent in relation to this allegation.

[2024] NSWPIC 599

25 October 2024