Neumayer v Woolworths Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Neumayer v Woolworths Group Ltd [2024] NSWPIC 490
APPLICANT:	Ildiko Neumayer
RESPONDENT:	Woolworths Group Limited
MEMBER:	John Isaksen
DATE OF DECISION:	4 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment for injury to the left shoulder and consequential conditions affecting the cervical spine and right shoulder; dispute as to consequential condition affecting the cervical spine; Moon v Conmah Pty Limited referred to; whether there has been an explanation as to whether restrictions and symptoms in the cervical spine are as a result of injury to the left shoulder; Hevi Lift (PNG) Ltd v Etherington referred to; Held – worker did not suffer a consequential condition affecting her cervical spine; matter referred to Medical Assessor for assessment of permanent impairment for left and right shoulders.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent for the claim made by the applicant that she has suffered a consequential condition affecting her cervical spine as a result of the injury she sustained to her left shoulder on 3 August 2010. The Commission orders: 2. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 3 August 2010 Body parts: left upper extremity (shoulder); right upper extremity (shoulder) as a consequential condition Method of Assessment: whole person impairment. 3. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute with attachments; (b) Reply with attachments, and (c) a copy of this decision.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Ildiko Neumayer, sustained an injury to her left shoulder on 3 August 2010 while employed as a night service supervisor with the respondent, Woolworths Group Ltd. The applicant wrenched her left arm and shoulder while trying to stop a box of plastic shopping bags from falling.
The respondent has admitted liability for this injury.
The applicant underwent surgery to the left shoulder on 29 July 2014 by way of a repair of a labral tear and subacromial decompression and which was performed by Dr Maniam.
The applicant claims that she has suffered a consequential condition affecting her right shoulder as a result of the injury to her left shoulder, and this additional claim has been accepted by the respondent.
The applicant has made a claim for a lump sum payment for 24% whole person impairment based upon an assessment made by Dr Peter Giblin, orthopaedic surgeon, which comprises 13% permanent impairment of the left shoulder, 8% permanent impairment of the left shoulder, and 5% permanent impairment of the cervical spine. The applicant claims that she has suffered a consequential condition affecting her cervical spine as a result of the injury to her left shoulder.
The respondent disputes that the applicant has suffered a consequential condition affecting her cervical spine as a result of the injury to her left shoulder.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has suffered a consequential condition affecting her cervical spine as a result of the injury to her left shoulder.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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 matter was listed for conciliation and arbitration on 29 August 2024. Mr Nicholson appeared for the applicant, instructed by Mr McDonnell. Ms Compton appeared for the respondent, instructed by Mr Passas.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to adduce oral evidence from the applicant or to cross examine the applicant.

The applicant’s evidence

The applicant has provided statements dated 22 August 2023 and 13 July 2024.
The only specific reference to the neck in the applicant’s first statement dated 22 August 2023 is that her shoulders, neck and back had not improved since leaving Australia in late 2020 and returning in April 2023.
The applicant states in her statement dated 13 July 2024 that she developed neck pain in 2014 and complained about this to Dr Maniam, and that he ordered an X-ray. She states that the pain in her shoulders worsened in November 2014, and she resigned her employment with the respondent on 30 November 2014 due to her shoulder pain. She states that she was in the United States of America between December 2014 and January 2016.
The applicant states that she did not have any problems with her right shoulder or with neck pain until she started using her right arm to lift and perform duties at work and at home due to her left shoulder injury. She states: “My neck pain arose in coordination with the pain in my right shoulder.” She also states: “Because of my left and right shoulder injuries I feel a pulling feeling constantly on the side of my neck.”

Evidence from treating medical practitioners

There are clinical notes in evidence from Quakers Court Medical Centre from the date of the injury until 26 November 2019. I could not locate, nor was I directed to, any references to neck symptoms over that nine year period.
There is an entry made by Dr Sarian on 15 January 2017 of the applicant feeling paraesthesia of the left fingers with pain in the upper arm and wrist, although there is no reference to symptoms in the neck. The notes query whether the applicant has C5/6/7 nerve compression.
There is an entry made by Dr Sarian on 1 February 2017 of his own query as to whether the applicant is suffering from cervical radiculopathy. There is again no reference to actual symptoms in the neck.
However, Dr Sarian writes in a report to EML on 6 February 2017 that when he saw the applicant on 4 February 2017 that she was complaining bitterly of left shoulder pain with radiation to the neck and the left fingers.
There are several reports from Dr Maniam during 2014, which was the year when the applicant had surgery to her left shoulder. There is no reference in those reports to any problems with the neck. However, there is an X-ray and CT scan report of the cervical spine dated 29 October 2014 which is addressed to Dr Maniam and which commence: “Clinical notes: Exclude Impingement”. The report states that there is no significant disc herniation or nerve root compression.
Dr Maniam writes in a report dated 24 June 2016 to EML that the applicant had recently returned to Australia and that on 14 June 2016 the applicant indicated that the left shoulder pain she had continues to trouble her and there is an associated pain on the left side of the neck.
Dr Biggs, orthopaedic surgeon, writes in a report dated 28 July 2016 that the applicant complains of pain and stiffness of the left elbow and pain radiating down the left arm and into the left hand. He writes that he feels that the applicant has a left cervicobrachial pain syndrome picture and refers her to Dr Adler, a pain management specialist.
Dr Adler writes in a report to Dr Biggs dated 1 October 2016 that the applicant has no neck symptoms.
Dr Walker, consultant neurologist, writes in a report dated 19 January 2017 that the applicant’s pain radiates into the forearm and queries whether the applicant could have peripheral nerve abnormality or perhaps a cervical radiculopathy. He writes that nerve conduction study data is entirely normal.
Dr Dalton, specialist in rehabilitation medicine, writes in a report dated 21 June 2017 that he spent an hour and half with the applicant trying to help her understand the reasons for her chronic pain. He finds that movements of the applicant’s cervical spine were painless and there was no sign of radiculopathy.
Dr Taylor, sports physician, provides a report dated 8 November 2018. There is no reference to problems with the neck in that report.
It appears that the applicant changes her general practitioner to Dr Tang in December 2019. The notes from the first consultation on 6 December 2019 includes findings on examination of decreased movement of both shoulders and tenderness of the cervical spine muscles. The Certificate of Capacity issued on that same date includes “cervical spine muscles strain” in addition to references to both shoulders. “Cervical spine muscles strain” continues to be included in the Certificates of Capacity throughout 2019 and 2020.
Dr Khan, consultant occupational physician, writes in a report dated 14 January 2020 that the applicant complains of pain proximally to her neck from her left shoulder joint. He finds on examination that the applicant has normal neck range of motion.
Dr Ramachandran, pain medicine specialist, provides a report dated 20 August 2020 wherein he records on examination of the applicant that there was significant reduction in the range of movement of the left shoulder and hyperaesthesia in a non-dermatomal fashion in the left arm. There is no specific reference to any problems or symptoms in the neck.
There are clinical notes from a physiotherapy assessment by Sally Wride on 21 August 2020 which records the applicant presenting with left side neck pain. Ms Wride writes:
“Stretch of neural tissues at left side of neck brings on arm burning pain and is relieved by opposite movement taking slack off neural tissues. She displays many pain behaviours when moving her shoulders and neck and has many movement compensations. These compensations are due to pain and significantly limit her functional capacity to reach her arms up to her head and to reach her hand (left) behind her back.”

Evidence from independent medical opinions

Dr Peter Giblin has provided reports at the request of the applicant’s lawyers.
In his first report dated 14 December 2020, Dr Giblin records details of the injury sustained by the applicant to her left shoulder on 3 August 2010. He writes: “It was early 2013, as she was favouring the left shoulder, that she noticed she was developing similar symptoms in the right shoulder.”
Dr Giblin records that one of the applicant’s complaints is neck pain and stiffness. He finds on examination that the applicant has restricted range of motion of the neck and is tender in the midline at C6.
Dr Giblin opines:
“She has the diagnosis of a secondary or compensatory soft tissue injury affecting her right shoulder and cervical spine, based upon the effects of the index injury.”
Dr Giblin writes in his report dated 6 November 2023 that the applicant has persisting symptoms in her cervical spine. He again finds restricted range of motion of the applicant’s neck. Dr Giblin opines:
“This lady has the diagnosis of ongoing soft tissue symptoms involving her cervical and thoracic spine and both upper extremities consequent upon her work-related injuries.”
Dr Bosanquet, consultant orthopaedic surgeon, has provided reports at the request of the respondent.
Dr Bosanquet does not record the applicant having any problems with her neck in his first report dated 29 June 2016.
Dr Bosanquet records in his report dated 28 March 2024 that the applicant had pain radiating into the back of her neck. He finds on examination that the applicant has a good range of movement of the cervical spine. Dr Bosanquet opines:
“There has been no injury to her cervical spine during her employment. When I examined her, she had full range of movement, there is no impairment.”
Dr Bosanquet also writes:
“The radiological investigations thus far of her cervical spine from the 2014 x-ray and CT scan show no abnormality. The bone scan from 2017 likewise shows no abnormality in her cervical spine. Thus, it is my opinion there is no impairment of her cervical spine. There is no pre-existing condition that has been aggravated.”

DETERMINATION

The determination of whether a condition suffered by a worker is as a consequence of a work injury was considered by DP Roche in Moon vConmah Pty Limited [2009] NSWWCCPD 134 (Moon). In that matter the worker claimed whole person impairment from symptoms experienced in the left shoulder as a consequence of an accepted injury to the right shoulder. DP Roche said at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
Deputy President Roche then proceeded to state that the expression “results from” should be applied using the principles set out by Kirby P in Kooragang Cement v Bates (1994) 35 NSWLR 452 (Kooragang). President Kirby said in Kooragang at [462]:
“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.”
Kirby P then said at [463]-[464]:
“…What is required is a common sense 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. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury… Is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
Ms Compton on behalf of the respondent submits that for the applicant to succeed she must be able to establish that she has an actual condition to explain her symptoms. She submits that pain of itself is not a consequential condition.
I do not agree with that submission. The decision of Moon makes it clear that it is only necessary to establish that there are symptoms and restrictions in another part of the body due to a work injury for a finding to made of a consequential condition. The experience of pain which can be verified on examination is a symptom and can cause a significant restriction on a person’s quality of life.
The initial question to be determined in this dispute is whether the applicant has symptoms and restrictions in her cervical spine.
There are several doctors who do not record the applicant making any complaints in regard to her neck and who find no abnormality with the cervical spine. Dr Maniam does not record the applicant having any problems with her neck during 2014. Dr Adler writes in October 2016 that the applicant has no neck symptoms.
Dr Dalton writes in 2017 that movements of the applicant’s cervical spine were painless and there was no sign of radiculopathy during a 90 minute consultation he had with the applicant. There is no reference to problems with the neck in a report from Dr Taylor in November 2018.
Dr Khan records the applicant complaining of pain moving towards her neck from her left shoulder, but he finds on examination that the applicant has normal neck range of motion. There is no specific reference to any problems or symptoms in the neck in a report from Dr Ramachandran in August 2020.
There is also no reference to the neck in the clinical notes from Quakers Court Medical Centre in the nine years that the applicant attended that practice following her work injury. There was certain ample opportunity for a complaint of neck pain or symptoms to be made by the applicant. For instance, the applicant attended Quakers Court Medical Centre on 35 occasions during 2014, but there is no reference to any problems with her neck.
Even the entries for the applicant’s attendances on 15 January 2017 and 1 February 2017 do not record any complaints regarding the neck, but rather symptoms down the left arm which Dr Sarian queries could be due to cervical radiculopathy.
There is nonetheless other medical evidence which refers to problems that the applicant was having with her neck from at least 2016.
Dr Maniam writes in a report to EML dated 24 June 2016 that the applicant had recently returned to Australia and that on 14 June 2016 the applicant indicated that she had associated pain on the left side of the neck. There is no separate report for that consultation on 14 June 2016 which might include details of an examination conducted by Dr Maniam. Otherwise, this can only be regarded as self-reporting by the applicant.
However, only one month later Dr Biggs considers that the applicant has a left cervicobrachial pain syndrome picture.
Although the entries for the applicant’s attendances upon Dr Sarian on 15 January 2017 and 1 February 2017 do not record any complaints regarding the neck, Dr Sarian does write to EML on 6 February 2017 stating that the applicant was complaining bitterly of left shoulder pain with radiation to the neck at a recent consultation.
The applicant in the meantime had seen Dr Walker on 19 January 2017, who provides a brief report which does not make any specific reference to the neck, but he does pose the possibility of cervical radiculopathy.
Dr Tang finds the applicant to have tenderness over the neck when he first examines her in December 2019, and he is prepared to certify that she does have a cervical spine muscles strain in addition to the problems afflicting her shoulders.
There are the findings made by Ms Wride, physiotherapist, of complaints of pain by the applicant when movements of the neck were undertaken in the notes from the applicant’s first assessment on 21 August 2020.
There are the findings made by Dr Giblin, which are made only a few months after the applicant attends Ms Wride, of the applicant having restricted range of movement and tenderness of the cervical spine.
Despite the considerable difference in the medical evidence, I consider that there are sufficient findings made by some medical practitioners of symptoms in the neck or emanating from the neck for me to be satisfied that the applicant has had restrictions and symptoms in her cervical spine since 2016. I particularly refer to the opinion from Dr Biggs that he considers that the applicant has a left cervicobrachial pain syndrome picture, the findings of tenderness over the neck by Dr Tang, and the findings made by Ms Wride on her physiotherapy assessment of the applicant.
These are findings made on actual examination of the applicant and not merely self-reporting symptoms by the applicant.
I am not convinced that the applicant had symptoms and restrictions in her neck before 2016. Mr Nicholson understandably relies upon the X-ray and CT scan which the applicant underwent in October 2014. He relies upon that report to submit that by 2014 there were doctors who accepted that the applicant had complaints of significant pain in her neck.
However, there is no report from Dr Maniam which refers to the reason for these scans. It might be an inference can be drawn that the referral for these scans was because the applicant was complaining of neck symptoms. Another inference could be that the referral for these scans was a prudent measure taken by a treating specialist to exclude any significant pathology in the cervical spine, especially when the report includes: “Clinical notes: Exclude Impingement”.

The applicant states that she developed neck pain in 2014 and complained about this to Dr Maniam, and that he ordered an X-ray. However, this evidence is given some 10 years after the event. The applicant provides no evidence as to the condition of her neck while she was in the USA from December 2014 to January 2016.
My preference in assessing the reliability of evidence, especially from 10 years ago, is to consider “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] (Gleeson CJ, Gummow and Kirby JJ)).
The contemporary materials do not provide any evidence of the applicant having any problems with her neck in 2014. Dr Maniam makes no reference to problems with the applicant’s neck in the reports he provides during 2014. I have already referred to the 35 consultations which the applicant had at Quakers Court Medical Centre during 2014 for her work injury without there being a mention of symptoms in the neck.
I am not satisfied from an assessment of the evidence that the applicant was experiencing symptoms and restrictions in her neck in 2014, but I have already set out my reasons as to why I consider that the applicant was experiencing symptoms and restrictions in her neck by 2016.
The crucial issue becomes whether those symptoms and restrictions result from the work injury sustained to the left shoulder on 3 August 2010.
None of the medical practitioners who have treated the applicant have provided an opinion or even a suggestion as to how the symptoms and restrictions experienced by the applicant in her neck have been the result of the ongoing effects of the injury she sustained to her left shoulder.
The sole opinion on there being a causal connection between the left shoulder and the neck is from an independent medical expert, Dr Giblin, and that is limited to the following which appears in his report dated 14 December 2020:
“She has the diagnosis of a secondary or compensatory soft tissue injury affecting her right shoulder and cervical spine, based upon the effects of the index injury.”
This opinion does not provide any explanation as to how the applicant’s restrictions and symptoms in her neck result from the injury to her left shoulder. There is no explanation as to how a “secondary” or “compensatory” soft tissue injury affecting the cervical spine results from the injury to the left shoulder.
There is no assistance provided elsewhere in the report dated 14 December 2020. Dr Giblin records that the applicant developed symptoms in her right shoulder in early 2013 as she was favouring her left shoulder, but no details are recorded by Dr Giblin of the condition of the applicant’s neck as a result of favouring her left shoulder.
The report from Dr Giblin almost three years later and dated 6 November 2023 does not advance this particular issue any further. There are again no details in that report of how the injury to the left shoulder has led to restrictions and symptoms in the applicant’s neck. The opinion from Dr Giblin is limited to the applicant’s ongoing soft tissue symptoms involving her cervical spine being “consequent upon her work-related injuries”, but without any explanation as to how symptoms in the neck are a consequence of the left shoulder injury.
The applicant states that her “neck pain arose in coordination with the pain in my right shoulder” and that because of her left and right shoulder injuries she feels “a pulling feeling constantly on the side of my neck”, but this is not referred to or made the subject of any interrogation by Dr Giblin or any other doctors who have treated the applicant.
Dr Giblin does appear to implicate the applicant’s work with the respondent following her left shoulder injury with the development of symptoms in the right shoulder in 2013 (which has been accepted by the respondent), but he makes no similar connection in regard to the cervical spine. I have, in any event, set out my reasons as to why I cannot be satisfied that the applicant was experiencing any neck symptoms prior to her cessation of employment with the respondent in November 2014.
The expert relied upon by the respondent, Dr Bosanquet, limits his opinion to stating that the applicant sustained no injury to her cervical spine during her employment with the respondent because she had a full range of movement of the neck and there was no impairment. However, it is the applicant who carries the burden of proof in claims such as this.
In Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (Hevi Lift), McColl JA (Mason P and Beazley JA agreeing) said at [84]:
“It has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it.”
The reports of Dr Giblin do not explain how the restrictions and symptoms that the applicant has experienced in her neck have been caused by the injury to the left shoulder. It is not enough to merely assert that pain which has developed in the neck is a consequence of the injury to the left shoulder. There must be reasons provided as to why these restrictions and symptoms are experienced as a result of the left shoulder injury, and those reasons have not been provided in the expert evidence relied upon by the applicant.
There will be an award for the respondent for the claim made by the applicant that she has suffered a consequential condition affecting her cervical spine as a result of the injury she sustained to her left shoulder on 3 August 2010.

[2024] NSWPIC 490

4 September 2024