Parevski v Ventia Boral Amey NSW Pty Ltd
[2024] NSWPIC 684
•10 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Parevski v Ventia Boral Amey NSW Pty Ltd [2024] NSWPIC 684 |
| APPLICANT: | Blagoja Parevski |
| RESPONDENT: | Ventia Boral Amey NSW Pty Limited |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 10 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for whole person impairment arising out of consequential cervical spine condition alleged to have arisen from accepted right shoulder condition; respondent disputed that the applicant had sustained consequential condition; consideration of Murphy v Allity Management Services Pty Ltd, Kooragang Cement Pty Ltd v Bates, and Kumar v Royal Comfort Bedding Pty Ltd; ipse dixit medical opinion providing insufficient reasoning of connection of cervical spine symptoms eight years post injury in the absence of contemporaneous complaints, treatment or investigations; failure to disclose previous pathology and subsequent complaints of neck pain; Held – award respondent in respect of the cervical spine claim. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered right shoulder injury on 14 June 2015. 2. The applicant did not suffer injury or consequential condition to his cervical spine. 3. Award for the respondent with respect to the claim for the cervical spine. |
STATEMENT OF REASONS
BACKGROUND
Blagoja Parevski (the applicant) claims lump sum compensation under the Workers Compensation Act 1987 (the Act) for impairment to the right upper extremity (shoulder) and cervical spine/neck said to arise out of injury sustained in the course of his employment with Ventia Boral Amey NSW Pty Ltd (the respondent).
The respondent’s insurer accepted liability for the right shoulder but declined liability for any injury (discrete or consequential) to the cervical spine. Further, it declined to make an offer of settlement in response to the lump sum claim for the shoulder as its qualified opinion resulted in a finding of impairment below the statutory threshold.
This prompted the filing of an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (the Commission). The matter underwent the usual pathway and following conciliation impasse proceeded to arbitration where the sole issue for determination was liability concerning the cervical spine. The parties agreed that if I found an injury/condition in the cervical spine, the impairment dispute was to be referred to a Medical Assessor. In the absence of such a finding, both parties acknowledged referral was redundant as the assessment relating to the shoulder in isolation was below threshold.
At arbitration the applicant was represented by Mr Malouf of counsel instructed by Mr Ayoub. The respondent was represented by Ms Goodman of counsel instructed by Mr Orr. The applicant and an interpreter were present. Ms Brown was the insurer representative.
In the course of decision making, I had regard to the documents attached to the ARD and the Reply along with submissions by counsel. No oral evidence was given.
EVIDENCE
Applicant’s evidence
In his statement dated 4 September 2023 the applicant states;
(a) he was employed by the respondent as a truck driver;
(b) he had no symptoms in the neck or right shoulder prior to his injury;
(c) while getting into his truck on 25 June 2014 from the passenger side, (as directed by his employer) his right arm slipped and he felt immediate pain in his right shoulder and to a lesser extent his neck;
(d) he sought treatment and following x-ray, ultrasound and MRI was diagnosed with a rotator cuff tear;
(e) conservative treatment failed and he ultimately underwent surgery by Professor Murrell on 22 January 2015. Rehabilitation consisted of placing his arm in a sling which caused “pressure on my neck and caused it to ache”’. Sleep was disturbed due to neck and shoulder pain;
(f) a return to work on light duties, some of which were repetitive reproduced pain in the neck and shoulder, and
(g) the pain continues to date and interferes with activities of daily living.
Medical evidence
Dr Herald (qualified expert) in his report dated 4 October 2022[1] confirmed the mechanism of injury and that initially pain was confined to the shoulder but over one or two months had gotten worse not only in the right shoulder but also the whole right upper limb. Post-operative rehabilitation in 2015 saw improvement in the shoulder symptoms but continuation of pain in the neck and radiation into the right arm.
[1] Folios 39-43 of the ARD.
Dr Herald confirmed review of CT scan of the cervical spine dated 15 September 2022 revealed predominantly left sided spondylosis of the C5/6 and C6/7, which he considered did not account for his right sided neck pain. An MRI was recommended. Despite the radiology not accounting for symptoms in the neck and his view the applicant had not been adequately investigated, he diagnosed right shoulder rotator cuff tear with subsequent repair and aggravation of underlying cervical spondylosis with radiculopathic [sic] to the right lower [sic] limbs. He reported (unedited):
“…an aggravation of his underlying cervical spondylosis is possible however, as he did not have any pre-existing symptoms of radiculopathy or neck pain, no deductions for any pre-existing spondylosis have been applied”.
In his supplementary report dated 21 November 2023[2], he reported (unedited):
“….original frank injury was that to his right shoulder in which he sustained a right shoulder rotator cuff tear. His consequential injury or the secondary condition that manifested after the primary injury is of his aggravation of underlying cervical spondylosis. This occurred after having had the rotator cuff surgery repair surgery on 22 January 2015 and subsequent placement in a sling
It arose after his surgery on 22 January 2015 when he was placed in a sling, and he has developed symptoms affecting his neck and his whole upper limb which resulted in a CT scan on 5 July 2022.
It is unlikely that he would have sustained a neck injury if not for the original injury on 25 June 2014 and the subsequent requirement for surgery that placed him in a sling”
[2] Folio 44 of the ARD.
Laurence Nguyen, physiotherapist in his report dated 28 August 2015[3] noted a complaint of “soreness in the right neck and deltoid area” which he considered were typical findings following post-operative cuff repair. Gentle exercise and maintenance were suggested with an almost full range of motion in the shoulder noted. The prognosis was considered excellent.
[3] Folio 47 of the ARD.
Clinical records of Mr Nguyen[4] confirm treatment commenced on 2 March 2015 and ceased on 23 September 2015, a total of 32 sessions. Neck “soreness” is recorded at consultations on 2 March 2015, 5 March 2015, 10 March 2015. On 18 June 2015 and 25 June 2015 (21 * 22 weeks post operatively) it was recorded “neck a bit sore”. At final consultation on 23 September 2015 it was recorded “shoulder is good, nil problems”.
[4] Folios 48-84 of the ARD.
Clinical notes produced by Dr Nick Cvetkovski of the Family Medical Clinic[5] reveal the applicant was diagnosed with cervical spondylosis in 2002,[6] however the consultation notes only commence on 21 May 2015, thereby preventing an understanding of how it came to be that the applicant was diagnosed with spondylosis in 2002.
[5] Folios 85-332 of the ARD.
[6] Folio 86 of the ARD.
Consultation records relating to the workers compensation injury in 2015 do not disclose any complaints relating to the neck but there is a report of pins and needles in the right shoulder.
On 2 March 2015, Mr Daher[7], physiotherapist, noted “restriction about his arm and neck from being immobilised for the past six weeks”. He suggested some soft tissue work and an exercise program.
[7] Folio 228 of the ARD
Professor Murrell reported on 20 July 2015,[8] advising Dr Cvetkovski that on the six month post-operative review the shoulder had a slightly restricted range of motion but was strong in strength testing with no mechanical impingement. He discharged him from his care. No neck symptoms were recorded.
[8] Folio 194 of the ARD.
Sam Marigliano, exercise physiologist on 7 September 2015 reported steady recovery from the right rotator cuff repair and noted wasting of the right shoulder compared to the left. Poor posture was noted. External rotation was normal but internal rotation was reduced. No neck symptoms are recorded.[9]
[9] Folio 180 of the ARD.
An exercise physiology plan commencing 16 February 2016 referred to deconditioning and muscle loss in the shoulder. No neck symptoms are identified.
At consultation on 10 August 2016, Dr Cvetkovski recorded neck pains but did not relate them to any work place injury. An ultrasound was ordered to exclude thyroid changes or nodules[10].
[10] Folio 94 of the ARD
On 19 December 2016, the applicant presented with “pain of 1 week, right shoulder pain and some strain sensation”.[11] Celebrex was prescribed, a restriction of lifting was suggested and if symptoms persisted repeat imaging was recommend to “ensure not a repeat tear”.
[11] Folio 97 of the ARD.
Consultations in 2017 do not record any neck or shoulder complaints.
There are no records of individual consultations from 2018 onward. However the notes do contain a CT scan report dated 15 September 2022[12] of the cervical spine with a clinical history of right sided radiculopathy. This report confirmed predominant pathology on the left side, not accounting for symptoms on the right side.
[12] Folio 337 of the ARD.
An MRI report dated 28 November 2022[13] confirmed multilevel spondyolitic changes at the C5/6 with severe foraminal stenosis irritating the exiting right C6 nerve root. There is some moderate canal stenosis at the same level.
[13] Folio 336 of the ARD
Respondent’s evidence
A WorkCover certificate of capacity dated 20 November 2014[14] diagnosed right supraspinatus tear as a result of injury on 25 June 2014. (This certificate was not in the material produced by Dr Cvetkovski, his notes commencing in May 2015 only.)
[14] Folios 1-3 of the Reply.
The Workers injury claim form signed by the applicant on 21 November 2014[15] documents injury whilst climbing into his truck confined to the right shoulder.
[15] Folios 5-6 of the Reply.
Dr Gothelf was qualified by the respondent. In his report dated 27 March 2023[16], a consistent history of injury is taken with prior symptoms being denied by applicant. Overall, he considered the cervical spine symptoms were constitutional in nature and would have occurred regardless of the shoulder injury because; (unedited)
“• There was no evidence of a cervical neck injury at the time of the work-place injury 25 June 2014.
• The Work injury claim form filled by Mr Parevski 21 November 2014 indicated a right shoulder injury and no mention of a neck injury or neck complaints.
• The documentation provided included medical attention to the right shoulder including surgery and follow ups. There was no mention of a cervical neck condition and there was no evidence of medical attention provided for the cervical neck at the time of the work-place injury.
• The notes from Prof Murrell 20 July 2015 six months after the surgery indicated Mr Parevski was ‘happy with the shoulder’ and ‘back to many activities’. There was no mention of cervical neck pain or symptoms at this time.
• Although Mr Parevski reported that the cervical neck pain started shortly after the work-place injury 25 June 2014, there was no evidence that the work injury resulted in a specific neck injury in the documentation or my history. When considering the findings of a degenerative cervical spine on the CT scan 15 September 2022, it is more likely than not that Mr Parevski would have developed cervical spine pain at this stage in his life regardless of the work-place right shoulder injury.”[17]
[16] Folio 14 of the ARD
[17] Folio 20 of the ARD
Submissions
The mainstay of the applicant’s submissions were:
i) there is no dispute the applicant has suffered a shoulder injury that required surgery and in the same episode it is more likely than not that the applicant suffered neck pain but was focused on the shoulder pain;
ii) alternatively and more probably, the applicant suffered a consequential condition to the neck as a result of the shoulder injury, specifically when required to rehabilitate with a splint, this being supported by the medical evidence;
iii) the applicant has discharged his onus in regards to causation with reference to the factual and medical history and with reference to the common sense test, and
iv) the report of Dr Gothelf must be given limited weight as he ignored the complete history specifically the complaints of pain to the neck whilst undergoing rehabilitation in a sling.
The mainstay of the respondent’s submissions were:
i) the right shoulder injury is not disputed;
ii) the evidence does not establish either a frank/discrete injury or consequential condition to the cervical spine and Dr Gothelf’s opinion should be preferred. Dr Herald has failed to explain why he considered the applicant’s neck condition to be consequential given the applicant has made no ongoing complaint of neck pain since about 2016, had no ongoing treatment or investigations to the neck until 2022, eight years after his rehabilitation had ceased;
iii) the applicant has misinformed the commission and qualified specialists in his statement that he had no prior or subsequent symptoms in the neck as the clinical records show a diagnosis of cervical spondylosis as early as 2002 and a complaint of neck pain unrelated to his work injury on 10 August 2016;
iv) a complete medical history is not before the Commission. The clinical notes commence in 2015 and end in 2017. It is unclear why an MRI or CT scan was ordered eight years after the alleged injury in 2022;
v) the evidence reveals the applicant had neck pain for a short period only whilst in a sling. There is no evidence that symptoms continued or were problematic since that time. There has not been demonstrated a change in neck pathology as a result of the rehabilitation associated with the right shoulder surgery, and
vi) Dr Herald has not commented on the MRI. His findings about the neck being aggravated are inconsistent with his interpretation of the radiological investigations which show that pathology is largely on the left side and not accounting for right sided symptoms.
In reply the applicant submitted;
i) no adverse inference should be drawn about the lack of serial clinical notes. It was open for the respondent to summons these materials if it had concerns about lack of completeness, and
ii) whilst Dr Herald has not seen the MRI, plain reading of that investigation confirms the applicant has severe cervical spondylosis, and the opinion of Dr Herald that this was aggravated by the applicant during rehabilitation is consistent with those findings.
APPLICATION OF THE LAW, FINDINGS AND REASONS
As indicated the issue for determination is whether the applicant has suffered either a frank injury or consequential condition to the cervical spine.
The definition of injury is found in s 4 of the 1987 Act (relevantly):
“‘injury’
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’ , which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
In assessing injury, authorities demonstrate:
(a) in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological change: Castro v State Transit Authority (NSW),[18] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[19] “the word ‘injury’ refers to both the event and the pathology arising from it”;
[18] [2000] NSWCC 12; 19 NSWCCR 496.
[19] (2003) 25 NSWCCR 422, at [429].
(b) the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates,[20](Kooragang) and
(c) the applicant bears the onus of establishing injury on the balance of probabilities, and in order to discharge that onus, I must be satisfied that the case has been proved on the balance of probabilities. I must feel an actual persuasion or comfortable satisfaction of the existence of a fact. The Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) summarised the approach as follows:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
(At [55].)
32.Section 9A of the 1987 Act requires employment to also be the substantial contributing factor to the injury for compensation to be payable (other than for a disease injury where it must be shown that employment is the main contributing factor).
[20] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
In the alternative, (and the primary submission of the applicant at arbitration) is that the cervical spine symptoms are consequential to his shoulder injury particularly due to the wearing of a sling post operatively in 2015. When assessing whether the cervical spine condition is a “consequential condition” to the shoulder injury, authorities establish the following principles (but by no means are they exhaustive):
i) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[21] (Kumar);
[21] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
ii) each case must be determined on its own facts;
iii) it is unnecessary for a worker alleging such a condition to establish that it is an “injury” (including “injury” based on the “disease” provisions) within the meaning of s 4 of the 1987 Act[22] (Moon);
iv) in order to establish a condition, there is to be a “common sense evaluation” of the causal chain, determined on the basis of the evidence, including expert opinions[23] (Kooragang);
v) a finding of a consequential condition does not require the identification of pathology[24] (Kumar);
vi) a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury, that is, it results from an employment injury[25] (Brennan);
vii) reliable and contemporaneous medical evidence plays a significant role in establishing causation;
viii) there must be an unbroken chain of causation from the injury to the development of the consequential condition;
ix) 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;[26]
x) the absence of treatment is not fatal to the applicant’s claim of the presence of a consequential condition[27] (Baker), and
xi) A consequential condition may be multifactorial in nature, but still result in liability being found against an employer where it is demonstrated that the subject injury “materially contributed”;[28] to the claimed consequential conditions (Murphy) and (Moon).
[22] Moon v Conmah Pty Limited[2009] NSWWCCPD 134 (Moon).
[23] Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452 (Kooragang).
[24] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[25] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan (NSWWCCPD 23).
[26] 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.
[27] As DP Roche noted in Baker v Southern Metropolitan Cemeteries Trust[2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour[2011] NSWCA 199 at [86]).
[28] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
Did the applicant suffer an injury or consequential condition to the cervical spine?
Overall, I find the applicant has not suffered an identifiable pathological change in the cervical spine as a result of any employment injury on 25 June 2014 either by way of frank injury or aggravation. This is because:
(a) the original incident report (a contemporaneous document) recorded the applicant suffered an injury to the right shoulder only;
(b) the Certificate of Capacity issued immediately after the injury by the general practitioner reports symptoms were confined to the right shoulder;
(c) there is no medical evidence that the events on 25 June 2014 aggravated any underlying pathology;
(d) contemporaneous clinical notes both by the treating doctor, specialists and physiotherapists immediately after the injury, confirm the injury and symptoms were restricted to the right shoulder only;
(e) the applicant’s statement suggests that symptoms in the neck predominantly arose out of his rehabilitation following the right shoulder surgery and not at the time of the injury;
(f) the medical and factual evidence does not demonstrate an “injury simpliciter” or aggravation to the cervical spine arising out of workplace events on 25 June 2014. (It is noted at hearing that the applicant emphasised the claim was based on a consequential condition, despite the pleadings and the notation on the Direction following the preliminary conference).
I also find the applicant has not established that he suffered a consequential condition to the cervical spine resulting from his right shoulder condition. This is because:
(a) I find the opinion of Dr Herald unpersuasive. Unfortunately, it appears that he was not given a complete history by the applicant, specifically that he had been diagnosed with cervical spondylosis in 2002 and that he had neck pain in 2016 which was unrelated to the workplace events. Dr Herald appears to have not been informed that the symptoms relating to the neck were shortlived in 2015/2016 and had resolved following physiotherapy with no ongoing complaints recorded past mid 2016. He acknowledges the CT scan findings reveal the most significant pathology on the left side of the neck (which would not account for the right sided symptoms) and correctly states that further evaluation by MRI is required. Despite not assessing the results of the MRI he then concludes underlying pathology had been aggravated by the wearing of a sling. There is no rationale provided for this opinion given the elapse of eight years since the short lived shoulder symptoms. I find the opinion to be ipse dixit and lacking sufficient reasoning;
(b) the symptoms in the neck whilst undergoing post-operative physiotherapy were described as “soreness in the right neck and deltoid area” noted as a common feature in the post-operative phase. There is no evidence to suggest that the global “soreness” was the result of the aggravation of any underlying condition or that it was in fact a condition. The soreness was not confined to the neck but also the adjacent deltoid area. The complaint and details are non specific. I acknowledge that a consequential condition does not require the identification of pathology (Kumar) but find that “soreness” is not a condition, rather a vaguely reported symptom which the evidence establishes was short lived following successful physiotherapy and exercise program and not solely confined to the neck but also the deltoid region. It is not until the involvement of Dr Herald that a suggestion is made that the neck was permanently aggravated by the short post-operative rehabilitation in a sling. As indicated above, Dr Herald does not explain his conclusions or reasoning, particularly as the CT scan that he referred to did not support the complaints of pain on the right side to be the result of the underlying pathology. He also does not appear to have had access to the physiotherapy notes which show that the symptoms were short lived and broadly described in the neck and deltoid region, that is not solely confined to the neck. He has not referred to the clinical notes which are silent on complaints of “soreness” or otherwise in the neck relative to the workplace injury post 2016. If he did have access to these records, he has failed to consider them in his ultimate opinion;
(c) Dr Herald’s case theory the cervical spondylosis was permanently aggravated by the wearing of a sling in the post-operative phase ignores the pre-existing cervical spondylosis diagnosed in 2002. No comparison is made between scans undertaken in 2002 and more recently. He fails to consider the most recent MRI. His report also does not refer to the subsequent complaints of neck pain which were unrelated to employment, such as those identified in 2016. His conclusion is at odds with the history of the matter. If indeed there was an aggravation of underlying pre existing changes as a result of the rehabilitation in a sling, he has failed to explain or account for the lack of documented symptoms, treatment or complaints between 2016 and 2022. His report also fails to explain how he concluded that the ’soreness in the neck and deltoid’ represented or translates into aggravation of underlying cervical spondylosis;
(d) I acknowledge authorities indicate care should be taken not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment which could possibly explain the lack of recorded complaints to the neck between 2016 and 2022.[29] In these circumstances, there is contemporaneous evidence of neck and deltoid soreness by the two physiotherapists managing the applicant. The exercise physiologist, the treating doctor and the treating surgeon do not record neck pain and I can only assume that the soreness was not acute at the time of consultation. This finding is consistent with the report of Mr Nguyen who indicated complaints subsided with appropriate treatment. Further, I found the notes of the treating doctor, Dr Cvetkovski, to be thorough. The applicant regularly attended on the practice and the doctor carefully has recorded a number of non work related medical conditions in great detail, taking necessary referral action and ordering investigations as required. It beggars belief Dr Cvetkovski would not record any contemporaneous symptoms of neck pain in 2014 and 2015 when he specifically recorded neck symptoms arising from what appeared to be a thyroid problem in 2016. I find given the level of detail and care taken in his notes and management of the applicant that the records are an accurate reflection of events and complaints through the years;
(e) I have weighed the evidence of the applicant together with other objective evidence and/or the absence of it: Department of Education and Training v Ireland.[30] Having done so, and for the reasons stated above, I acknowledge that there were complaints of generalised soreness in the neck and deltoid region following the wearing of a sling in 2015 which were short lived. As indicated previously, soreness is a symptom and the description and history of the soreness is so limited and imprecise (referring to both the neck and deltoid) that I cannot find this constituted a condition that resulted from the shoulder injury and its rehabilitation. There is no suggestion in the contemporaneous physiotherapy reports that there had been an aggravation of cervical spondylosis as suggested by Dr Herald at the time of the ‘soreness’. I also find there have been no documented complaints of neck pain relative to the work injury or the rehabilitation communicated between late 2016 until 2022 at which time investigations were ordered confirming the cervical spondylosis. No factual or medical rationalisation has been offered to explain the findings and connection of these investigations to an alleged symptomatic aggravation that occurred more than eight years earlier. The incomplete dossier of medical evidence does not assist, especially given the absence of complaints. This causes me to prefer the opinion of Dr Gothelf, specifically that symptoms would have been manifest at this stage of the applicant’s life, regardless of the events described, given the level of degeneration documented. Given this, I find that the right shoulder injury has not materially contributed to any condition in the cervical spine.
[29] Mastronardi v State of New South Wales [2009] NSWCA 270.
[30] Department of Education and Training v Ireland [2008] NSWCCPD 134.
For these reasons, I am not satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction (Nguyen), that the applicant had sustained an injury within the definition of ss4, 4b, 9A of the 1987 Act to the neck on 25 June 2014. (I appreciate that this is not the claim that was being maintained by the applicant at the arbitration but note that it was pleaded in that fashion initially.)
Further, I find that on a common-sense basis and evaluation, in which I analysed the chronology, medical evidence and factual statements (Kooragang), that the applicant has not established that his right shoulder injury and resultant rehabilitation has materially contributed to the development of a condition in the cervical spine. (Murphy)
SUMMARY
For these reasons, I find the applicant has not discharged his onus in establishing either an injury or consequential condition to the cervical spine and so I make the orders set out on page 1 of the Certificate of Determination.
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