Pulis v M & S Boileau Pty Ltd ATF Boileau Family Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pulis v M & S Boileau Pty Ltd ATF Boileau Family Trust [2023] NSWPIC 608
APPLICANT:	Sam Pulis
RESPONDENT:	M & S Boileau Pty Limited ATF Boileau Family Trust
PRINCIPAL MEMBER:	Glenn Capel
DATE OF DECISION:	10 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Accepted injury to cervical spine and hearing; dispute regarding alleged right shoulder injury; lack of contemporaneous evidence; applicant’s IME provided no diagnosis; Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Davis v Council of the City of Wagga Wagga, Mason v Demasi Hancock v East Coast Timbers Products Pty Ltd and Paric v John Holland (Constructions) Pty Ltd discussed and applied; Held – the applicant has not discharged the onus of establishing an injury to his right shoulder; award for respondent; referral to a Medical Assessor in respect of cervical spine and hearing.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his cervical spine and hearing arising out of or in the course of his employment on 12 May 2020. 2. The applicant’s employment was the main or a substantial contributing factor to his injury. 3. The applicant has not discharged the onus of establishing that he sustained an injury to his right shoulder on 12 May 2020. The Commission orders: 4. Award for the respondent in respect of the allegation of an injury to the applicant’s right shoulder on 12 May 2020. 5. I remit this matter to the President for referral to two Medical Assessors pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment of the whole person impairment as follows: Date of injury: 12 May 2020 – Personal injury Body systems / parts: a. Cervical spine. b. Loss of hearing. 6. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute with attached documents; b. Reply with attached documents; c. Application to Admit Late Documents received on 3 November 2023; d. Application to Admit Late Documents received on 7 November 2023, and e. Application to Admit Late Documents received on 7 November 2023.

STATEMENT OF REASONS

BACKGROUND

Sam Pulis (the applicant) is 31 years old and commenced employment with M & S Boileau Pty Limited ATF Boileau Family Trust (the respondent) as a farm hand in approximately 2015. His employment was terminated in December 2022, and he is currently self-employed.
There is no dispute that the applicant injured his neck and suffered hearing loss when a cattle crush struck the right side of his head on 12 May 2020. Liability was accepted by Employers Mutual Ltd (the insurer) and weekly compensation and medical expenses have been paid. Precise details are unknown.
On 14 April 2023, the applicant’s solicitor served a claim for lump sum compensation on the insurer in respect of injuries sustained to his right upper extremity (shoulder), cervical spine and hearing on 12 May 2020.
On 30 August 2023, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant had injured his right shoulder and that his employment was a substantial contributing factor to his condition. It cited ss 4, 9A, 33 , 59, 60 and 66 of the Workers Compensation Act 1987 (1987 Act).
On 30 August 2023, the respondent’s solicitor submitted an offer of settlement in respect of 12% whole person impairment. There was no response to this offer.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission) (the Commission) on 27 September 2023, the applicant claims lump sum compensation due to an injury sustained to his right shoulder, cervical spine and hearing on 12 May 2020.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
i)     whether the applicant sustained an injury to his right shoulder arising out of or in the course of his employment on 12 May 2020 – s 4 of the 1987 Act;
ii)     whether his employment was a substantial contributing factor to his injury – s 9A of the 1987 Act, and
iii)    quantification of the applicant’s entitlement to lump sum compensation – s 66 of the1987 Act.
The parties agreed that in the event that irrespective of the outcome, the applicant’s claim should be referred to a Medical Assessor.

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    the Application with attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents received on 3 November 2023;
(d)    Application to Admit Late Documents received on 7 November 2023, and
(e)    Application to Admit Late Documents received on 7 November 2023.

Oral evidence

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

REVIEW OF EVIDENCE

Given the discrete nature of the dispute and the submissions of counsel, I propose to focus my summary of the evidence relevant to the alleged shoulder injury.

Applicant’s statement

The applicant provided a statement on 25 September 2023. He indicated that he injured his right shoulder in the incident. He did not complain about his shoulder immediately because his main concern was the symptoms that flowed from his head and neck injuries.
The applicant stated that he had pain in his shoulder that extended down his arm to his fingers that deteriorated over time. He had a sensation of a "dead" right arm and regularly experienced pins and needles in his right arm and hand. He frequently lost strength and his grip without warning, and two fingers seemed to be permanently bent. He maintained that ever since \his injury, his right shoulder movements were restricted and he had discomfort.

Applicant’s treating medical evidence

When one reviews the medical evidence of the applicant’s treating doctors, there is minimal mention of right shoulder complaints. I have included a summary of some reports merely for history purposes.

Crookwell Hospital discharge

The Crookwell Hospital discharge dated 13 May 2020 recorded the applicant’s complaints regarding his right ear and neck. There was no mention of any right shoulder symptoms, and it was noted that he had a full range of movement. The later discharge dated 23 October 2020 referred to a “jittery [sic] right arm associated with numbness and tremors” in the fingers and hand that resolved when the applicant was distracted.

Goulburn Physiotherapy Centre report

A report from the Goulburn Physiotherapy Centre dated 28 July 2020 noted that the applicant had experienced a reduction in his neck and right shoulder pain and reduced sensation in his right hand.

Reports and clinical notes of Dr Treadwell

A referral from Dr Treadwell dated 8 October 2020 directed to the Goulburn Physiotherapy Centre recorded that the applicant had developed tingling and weakness in his right hand and questioned whether this could be carpal tunnel syndrome.
A referral to Dr Malhotra dated 8 October 2020 recorded the recent onset of tingling in his right hand, and a feeling of numbness in his right and forearm that had been present since his injury. The doctor advised that he had prescribed a wrist brace for potential carpal tunnel syndrome. He conformed a diagnosis of carpal tunnel syndrome in his report dated
18 November 2020.
The clinical notes commence on 12 March 2020 and conclude on 16 September 2021.
On 18 May 2020, Dr Treadwell recorded that the applicant had been struck in the side of the head. There was no reference to any right shoulder or arm symptoms. The applicant complained of neck pain on 25 May 2020 and during subsequent consultations in 2020.
On 8 October 2020, the applicant complained of right hand numbness and tingling in all of his fingers that had been present since his injury. He complained of numbness again on
16 October 2020 and the doctor diagnosed carpal tunnel syndrome.
On 21 October 2020, the applicant reported that the top of his shoulder was very painful, whilst on 22 October 2020, he indicated that he could not lift his shoulder above shoulder height. The doctor diagnosed a likely functional syndrome or Complex Regional Pain Syndrome (CRPS).
On 13 November 2020, the applicant complained of stiffness in his arm, pain and throbbing since the EMG needle, shooting pain into the wrist, heaviness in the arm, a swollen right hand, hand and arm numbness and aching in his shoulder. EMG studies had confirmed carpal tunnel syndrome. On 17 November 2020, the applicant complained that he had numbness in his left hand.
On 8 January 2021, Dr Treadwell reported that the applicant had tingling in his hands. She diagnosed carpal tunnel syndrome.
On 8 February 2021 and 8 March 2021, the applicant complained of pain in his fourth and fifth fingers. The doctor also raised the possibility of ulnar nerve pathology.
On 9 April 2021, Dr Treadwell recorded that the applicant had hand and shoulder pain shooting down into his arm from his neck. She noted some inconsistencies on examination.
On 7 May 2021, the applicant complained of pain in his second finger and the doctor questioned whether he had peripheral neuropathy. On 4 June 2021, the applicant complained of swelling around his thumb and on 10 June 2021, the doctor recorded that the applicant had experienced tingling in his fourth and fifth fingers, the back of the hand and to his elbow after undergoing scans. The doctor thought that the applicant might have bursitis and likely ulnar nerve irritation. The doctor’s diagnoses varied from chronic pain to carpal tunnel syndrome and CRPS.
The medical certificates issued by the doctor only refer to a diagnosis of post traumatic and vestibular migraines.
Finally, a report from Dr Danesh to Dr Treadwell dated 10 October 2021 contained a history of regular migraines, pain in the applicant’s shoulder going down to his arm and throbbing pain and sharp shooting pain going down from the left side of his jaw down to the arm that started after the incident. The applicant also had paraesthesia in his hand.

Reports of Dr Malhotra

Dr Malhotra, neurologist, reported on 30 September 2020. He recorded that following the work incident, the applicant had lost hearing in his right ear, had developed blurred vision in the right eye, experienced constant headaches and had lost strength in the right arm. The doctor noted that the MRI scan of the applicant’s brain was normal and MRI of the neck revealed only muscle spasm. The doctor did not mention the applicant’s right shoulder.
In his report dated 11 November 2020, Dr Malhotra noted that the applicant had experienced shaking in his right arm, a dead sensation in his right thumb and index finger and sharp pain in his forearm. The nerve conduction study of the applicant’s right arm showed incidental carpal tunnel syndrome.
Dr Malhotra reported on 25 November 2020 that the applicant had persisting pain in his right forearm, into the shoulder and arm and pain from the neck into his right ear. The doctor recorded that the MRI scans of the brain, neck and brachial plexus were normal.
In his final undated report that was in response to a questionnaire from the insurer dated
17 November 202, Dr Malhotra advised that despite undergoing extensive investigations, there had been no pathology found to explain the applicant’s symptoms apart from some evidence of spondylosis and mild right sided carpal tunnel syndrome. He recommended a referral to a psychologist.

Report of Dr Huntley

Dr Huntley reported on 4 December 2020. He recorded that the applicant had pain in his neck, radiating down his right arm with numbness in his right thumb and spreading to his fingers.

Reports of Dr Borire

Dr Borire, neurologist, reported on 16 April 2021. He recorded that the applicant experienced significant pain in his head, neck and shoulder girdle at the time of the incident. The applicant described his pain as an intermittent sharp or throbbing pain on the background of a chronic dull ache. He also experienced electric shock-like sensations radiating from his shoulder girdle to his fourth and fifth fingers.
Dr Borire reported that the applicant had random patches of pain in his palm, thumb and fifth finger ulnar aspect of his forearm, elbow and upper arm. He also had difficulty grasping objects due to pain. The applicant complained of numbness in his thumb, index and middle fingers, but not in a clear dermatomal or radicular distribution. He also noted that there was no direct trauma to the applicant’s neck, shoulder girdle or arm.
Dr Borire concluded that the applicant’s main problem was his right arm pain, which did not have a clear anatomical pattern. The tenderness in the small joints of the hand, and the multiple tender spots In the forearm and upper arm were suggestive of a musculoskeletal process. The doctor was not satisfied that there was any neurogenic process in play.
In his report dated 3 September 2021, Dr Borire noted that an MRI scan showed no evidence of thoracic outlet syndrome and \ suggested a possible irritation of the right brachial plexus, but the doctor felt that the applicant’s symptoms were not consistent with that condition. He reported that the applicant had marked tenderness his right wrist, forearm, upper arm, shoulder girdle and neck. The degree of allodynia and hypoalgesia raised the possibility of a central sensitisation process such as fibromyalgia or functional illness.

Reports of Dr Beevors

Dr Beevors, general surgeon, reported on 24 June 2021. She recorded that the applicant had experienced dizzy spells, right sided blurred vision and hearing loss, headaches radiating to the right side of his neck and right shoulder radiating to his hand. He had tremors and numbness in his fingers. She advised against a carpal tunnel release and suggested that he might have CRPS
In her report dated 9 July 2021, Dr Beevors advised that there was no clear neurogenic explanation for the applicant’s symptoms. She stated that he could have CRPS, although he did not exhibit the typical sensory and autonomic symptoms.

Reports of Dr Jayamanne

Dr Jayamanne, neurologist, reported on 10 September 2021. He recorded that when the applicant regained consciousness following the incident, he had right-sided neck pain that radiated down to his fourth and fifth fingers, shoulder pain, headaches and blurred vision. All tests had been unremarkable. He diagnosed likely post traumatic headaches, a possible CRPS and a post traumatic right arm tremor.
In his report dated 4 March 2022, Dr Jayamanne recorded that the applicant continued to experience headaches and nerve blocks had been of little benefit.

Report of Dr Curtis

Dr Curtis, neurosurgeon, reported on 26 October 2022. He noted that the applicant’s neck and arm symptoms had not improved despite extensive and protracted conservative treatment. He had pain in his scapular region and pain and paraesthesia radiating into his arms, hands and fingers. The right arm pain extended to his thumb and index finger. He also had left triceps pain.
Dr Curtis reported that brachial plexopathy and significant peripheral nerve compression had been discounted and recent tests had disclosed any significant canal stenosis, cord compression or signal change within the spinal cord. The doctor thought that the applicant could consider cervical surgery but recommended conservative treatment.

Physiotherapy Assessment Sheet

The Physiotherapy Assessment Sheet dated 16 July 2021 referred to a complaint of weakness in the applicant’s right arm and headaches, pain in the head, shoulders and right arm, hand strength loss and tremors. The diagram identified pins and needles and numbness in the applicant’s neck, shoulder girdle and down the arm to his hand.

Report of Dr Fitsimmons

Dr Fitsimmons was qualified on 10 March 2023. She reported that the applicant was terminated in late 2022 because of his right arm symptoms. The applicant informed her that one day his right arm became swollen and he experienced pain and pins and needles while he was drenching sheep. There was no history of shoulder symptoms at the time of his injury in May 2020.
The applicant complained of pain from his right neck to the shoulder down to the ulnar two fingers, and he had begun to experience similar symptoms in his left arm. He experienced throbbing pain and pins and needles in his right hand, and the doctor noted that the applicant did not injure his right upper limb directly.
Dr Fitsimmons diagnosed post traumatic vestibular migraine. It seems that she was not satisfied that the applicant had any assessable whole person impairment due to a brain injury.

Report of Dr Patrick

Dr Patrick reported on 1 March 2023. He noted that the applicant had suffered a post-concussion type syndrome that resulted on pain into his right ear, blurred vision, headaches, neck pain and potential CRPS in the right arm. The doctor recorded details of the applicant’s symptoms and noted that he had headaches and pain at the back of his neck, right shoulder and arm. The applicant experienced occasional radiation of pain down his right arm to the fourth and fifth fingers.
On examination, Dr Patrick observed a restricted range of movement in the applicant’s right shoulder. He commented that the finger sensations could be coming from the applicant’s neck, and there was dysmetria in the cervical spine.
Dr Patrick stated that the applicant had significant limitations of range of active motion in his right shoulder and accepted that his employment was a substantial contributing factor to his injuries. He assessed 11 % whole person impairment of the right upper extremity (shoulder) and 15% whole person impairment of the cervical spine, for a combined total of 24% whole person impairment.

Diagnostic tests

The applicant has had a series of scans, X-rays and EMG studies that have been largely unremarkable. They have confirmed the presence of stenosis in the applicant’s neck and mild carpal tunnel syndrome in his right wrist, but no significant abnormality in the applicant’s brain, brachial plexus, cervical spine, wrist, forearm and thoracic spine.
The MRI scan of the cervical spine taken on 3 June 2020 showed no significant pathology apart from evidence of cervical spinal spasm.
The ultrasound dated 9 June 2021 showed minimal bursal thickening in the applicant’s right shoulder.

Reports of Dr Granot

Dr Granot, neurologist, reported on 4 February 2021. He did not record a history of a shoulder injury and noted that the applicant developed right mid forearm pain which was diagnosed as right sided carpal tunnel syndrome in August 2020. The applicant complained of right arm pain radiating to the hand gradually progressing from his shoulder with stiffness and reduced movement in the hand, numbness with gripping and nocturnal numbness. He had shooting pain from his fourth and fifth fingers to his elbow which started about seven months earlier.
Dr Granot diagnosed post traumatic migraine with vestibular features and right carpal tunnel syndrome consistent with the EMG studies. He indicated that there was no clear mechanism to relate the applicant’s right arm symptoms to his head injury. He felt that the symptoms most likely related to median nerve compression with the possible involvement of the ulnar nerve at the elbow.
In his report dated 12 July 2023, Dr Granot recorded that the applicant had experienced neck pain at the time of his injury and within a few weeks he experienced aching and electric shock sensations in his right shoulder. In the first six months this extended over the elbow and to the fourth and fifth fingers. The applicant reported numbness two to three times per week, sharp and shooting pain and swelling of his right hand. He experienced shaking in his right arm and hand and fixed flexion of his fourth and fifth fingers. The applicant was working one to three days per week as a farm hand.

Dr Granot diagnosed post traumatic migraine with vestibular features, a likely soft tissue cervical injury and possible right ulnar nerve palsy. He explained that the applicant’s neck complaints were consistent with cervical radiculopathy, although this was not apparent on the radiological tests. He advised that his clinical findings were compatible with ulnar nerve pathology but this was not confirmed by the EMG studies. He stated that there was no diagnosis of “cervical dysmetria”, and he would interpret this as meaning a cervical spine injury with radiculopathy.
Dr Granot commented that there was no diagnostic abnormality in the applicant’s neck, and his examination was diffusely abnormal and not localised to any dermatome or myotome. This meant that the applicant had suffered a non-specific soft tissue injury with non-verifiable radicular complaints. He declined to comment on the shoulder condition as this was a matter for an orthopaedic surgeon. He assessed 7% whole person impairment of the cervical spine.

APPLICANT’S SUBMISSIONS

The applicant’s counsel, Mr Goodridge, submits that the applicant has pain and symptoms in his right upper extremity and shoulder with paraesthesia radiating to his fingers. He concedes that the language in the evidence of the treating doctors and that of the respondent tends to refer to referred symptoms radiating down the applicant’s arm to his hand.
Mr Goodridge submits that the highest point of the applicant’s case is the report of Dr Patrick. One needs to feel the persuasion that his opinion is correct regarding a separate injury to the applicant’s right shoulder otherwise the applicant will fail. Dr Patrick used unusual language regarding the possibility of a potential diagnosis of CRPS, but nevertheless he accepted an injury.
Mr Goodridge submits that Dr Patrick reviewed the diagnostic tests and medical reports of the treating doctors, so he was alert to the issue of causation. He agreed with the views of Dr Borire regarding the absence of sensory and autonomic features. Dr Patrick noted Dr Treadwell’s findings on examination in September 2021 that included marked tenderness in the right wrist, forearm upper arm, shoulder and neck. Dr Patrick described his sensory findings and the applicant’s symptoms, which are consistent with his statement.
Mr Goodridge submits that Dr Patrick set out the range of motion findings on examination and this formed the basis of his whole person impairment assessment. The doctor diagnosed a post concessional type syndrome including neck and arm pain, right ear injury, blurred vision, headaches and issue on the right side, with the possibility of CRPS.
Mr Goodridge submits that whist the doctor did not identify the nature of the injury to the applicant’s shoulder, he has accepted the range of movement but not advanced a diagnosis. He accepted that there was an injury, with significant restriction in the neck, two fingers and right shoulder, and there were no other factors. He accepts at best that there was an injury and radiation to the shoulder and arm.
Mr Goodridge submits that there will be no difficulty to accept that the doctor has set out a diagnosis and reasoning that is persuasive in accordance with the authorities that result in a finding of a right shoulder injury.
In reply, Mr Goodridge submits that in his report dated 3 September 2021, Dr Borire suggested that there could be irritation of the right brachial plexus which might be related to his injury. The doctor made further comments that suggest that he was undecided as to the cause of the applicant’s symptoms from the treating point of view. Dr Patrick considered all of the evidence of the treating doctors and he reached an opinion on causation which might or might not be accepted. There was an injury to the shoulder as well as other matters such as radiation.

RESPONDENT’S SUBMISSIONS

The respondent’s counsel, Mr Adhikary, submits that the opinion of Dr Patrick is inconsistent with the evidence of the treating doctors. The treating evidence shows that the symptoms emanate from the applicant’s neck or relate to carpal tunnel syndrome.
Mr Adhikary submits that Dr Patrick does not support a separate right shoulder injury. He has merely noted that there is an impairment and assessed this.
Mr Adhikary submits that the Crookwell Hospital discharge report confirmed that the applicant had symptoms in his cervical spine and full power in his right shoulder.
Mr Adhikary submits that the referral to Dr Malhotra referred to tingling, numbness and referred symptoms, but there was no mention of any shoulder problems. There was an incidental finding of carpal tunnel syndrome and no ulnar nerve abnormality or reference to a right shoulder injury. Dr Malhotra concluded that there was no pathology to explain the applicant’s symptoms.
Mr Adhikary submits that Dr Beevors recorded that the applicant had headaches radiating to the right side of his head and shoulder. She suspected that the applicant had CRPS, but that diagnosis had not been sustained.
Mr Adhikary submits that Dr Borire reported that the applicant’s main problem was right upper limb pain, but there was no clear anatomical pattern. In his report dated 9 July 2021, the doctor noted that the applicant experienced pain that radiated to his neck, shoulder girdle and upper limb. The upper limb pain was localised in the palm and wrist and there were issues with the thoracic outlet, not the shoulder.
Mr Adhikary submits that in his final report, Dr Borire noted that the MRI report suggested that there was possible irritation of the cortical right brachial plexus and surgery was indicated, but he stated that the clinical presentation was not typical of that condition. He suggested the possibility of a central sensitisation process such as fibromyalgia or a functional illness, which is inconsistent with a right shoulder injury.
Mr Adhikary submits that Dr Jayamanne did not support a shoulder injury and suggested CRPS, whilst Dr Curtis referred to scapula pain and pain and paraesthesia in the arms and fingers. He ruled out brachial plexopathy or significant peripheral nerve compression.
Mr Adhikary submits that none of the treating doctors support a right shoulder injury. They have suggested multiple causes of the applicant’s shoulder symptoms and other potential hypotheses. There is no evidence of an actual pathological change in the right shoulder caused by the incident on 12 May 2020.
Mr Adhikary submits that Dr Granot concluded that there was no clear mechanism to explain the applicant’s upper limb symptoms other than median and ulnar nerve compression and carpal tunnel syndrome. The doctor does not support a shoulder injury and felt that the symptoms were suggestive of cervical radiculopathy.

REASONS

Did the applicant sustain injury to his right shoulder and was her employment the main or a substantial contributing factor? – s 4 and 9A of the 1987 Act

Section 4 of the 1987 Act defines injury as follows:
“In this Act-
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, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined”.
In order to be satisfied that an injury has occurred, there must be evidence of a sudden
[1] [2000] NSWCC 12; 19 NSWCCR 496.
[2] (2003) 25 NSWCCR 422, [429].
or identifiable pathological change: Castro v State Transit Authority (NSW) ,[1] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd ,[2] “the word ‘injury’ refers to both the event and the pathology arising from it”.
The issue of causation must be determined based on the facts in each case and the application of the common-sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates.[3]
[3] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
The applicant bears the onus of establishing that he sustained an injury, and in order to discharge that onus, I must feel an actual persuasion of the existence of that fact: Department of Education & Training v Ireland.[4]
[4] [2008] NSWWCCPD 134 (Ireland), [89].
There is no dispute that the applicant injured his cervical spine and suffered traumatic hearing loss as a result of the incident on 12 May 2020.
According to the applicant’s statement, he injured his shoulder but he did not complain about it because he was more concerned about his head and neck injuries.
It is difficult to assess what weight can be given to this evidence. What I can accept is that the applicant consulted a number of doctors since the incident and they recorded a variety of complaints at the numerous consultations. One would expect that had the applicant suffered a right shoulder injury, he would have mentioned this at some stage, but that does not appear to be the case. On the other hand, the description in his statement of his symptoms seems to accord with the histories recorded by the clinicians who have treated him.
Mr Goodridge conceded that the language, or more appropriately, the description of the applicant’s complaints recorded by the treating doctors seemed to suggest referred symptoms radiating down the applicant’s arm to his hand. Such a submission accords with evidence of the treating doctors, namely symptoms in the neck radiating down the right shoulder and arm to the fingers, consistent with cervical radiculopathy, even though there was no radiological evidence of that condition.
The lack of a contemporaneous record of a shoulder injury and right shoulder pain as opposed to referred symptoms is certainly a matter of concern, although this is not necessarily fatal to the applicant’s claim.
In decisions such as Davis v Council of the City of Wagga Wagga,[5] Nominal Defendant v Clancy[6], King v Collins,[7] Mastronardi v State of New South Wales[8] and Mason v Demasi,[9] the Court of Appeal cautioned against placing too much weight on the clinical notes of treating doctors, given their primary concern was treatment. In the Court’s view, the notes rarely, if ever, represent a complete record of the exchange between a busy doctor and the patient.
[5] [2004] NSWCA 34.
[6] [2007] NSWCA 349.
[7] [2007] NSWCA 122.
[8] [2009] NSWCA 270.
[9] [2009] NSWCA 227
This might well be the case in the present matter but given the number of doctors that the applicant has consulted, I have reservations about the alleged shoulder injury.
The Crookwell Hospital discharge report did not mention a shoulder injury or shoulder symptoms. There were only isolated references to right shoulder pain throughout the evidence, such as in the report from the Goulburn Physiotherapy Centre or at the consultations with Dr Treadwell on 21 October 2020 and 13 November 2020. Of course, complaint of pain or aching does not necessarily equate to an injury caused by an incident at work. There was also the suggestion of bursitis in the ultrasound on 9 June 2021, but no doctor has suggested that this pathology was caused by a work injury.
There are no entries in respect of a right shoulder injury or shoulder symptoms in the clinical notes or numerous reports of Dr Treadwell. One would have expected at least some record of a shoulder injury or shoulder pain, given that the applicant regularly consulted her and complained about neck and arm symptoms on numerous occasions. Dr Treadwell recorded tingling and numbness consistent with carpal tunnel syndrome and this was confirmed in the EMG studies.
The applicant consulted three treating neurologists, a general surgeon and a neurosurgeon. He was also examined by two qualified neurologists. None of them thought that his symptoms were due to a right shoulder injury.
Dr Malhotra had no history of a shoulder injury and he could not explain the applicant’s symptoms, given the absence of evidence of pathology in the diagnostic tests. His diagnosis of carpal tunnel syndrome mirrors the diagnosis provided by Dr Treadwell.
Dr Borire recorded a history of pain in the applicant’s right shoulder girdle, rather than in the shoulder itself, and there was no history of a direct injury. He concluded that the applicant’s symptoms did not fit in with any anatomical pattern. The diagram in the Physiotherapy Assessment sheet also suggested symptoms in the shoulder girdle. Although Mr Goodridge submits that the doctor suggested that there could be irritation of the right brachial plexus which might be related to his injury, that was not in fact the doctor’s opinion. This was something suggested in the MRI report and the doctor rejected this.
Dr Beevors noted the lack of typical sensory symptoms. She and Dr Jayamanne thought that the applicant might have CRPS, something that other doctors had ruled out. Dr Curtis seemed to suggest that the applicant’s problems arose from his neck.
According to Dr Fitzsimmons, the applicant’s pain from his neck extending to his right shoulder down to the ulnar two fingers. He had also begun to experience similar symptoms in his left arm. This history would be inconsistent with right arm symptoms being caused by a right shoulder injury as similar symptoms in the left arm would most likely be caused by the applicant’s neck or perhaps left carpal tunnel syndrome.
Dr Granot also had no history of a shoulder injury. He diagnosed carpal tunnel syndrome and cervical radiculopathy, although that latter was not confirmed in the scans. He could not relate the applicant’s right arm symptoms to his head injury.
Therefore apart from Dr Patrick, not one of the eight doctors who have treated or examined the applicant have recorded an injury to the right shoulder or diagnosed right shoulder pathology.
Mr Goodridge submits that the highest point of the applicant’s case is Dr Patrick’s report. There is certainly weight in such a submission, because when one looks at the other medical evidence, Dr Patrick is the only doctor to support the applicant’s allegation of a right shoulder injury. Unfortunately, in my view, little, if any, weight can be given to his opinion.
It is apparent from Dr Patrick’s report that he was provided with copies of some, if not all, of the reports from the applicant’s treating doctors. He also had access to a number of the radiology reports. It is unclear whether he actually viewed the scans and X-rays. So he would have been aware of diagnoses of the treating doctors.
According to the history recorded by Dr Patrick, the applicant had headaches and pain at the back of his neck, right shoulder and arm, with occasional radiation down his right arm to his fingers. He acknowledged that the applicant’s finger symptoms could be sourced from his neck. This is consistent with the views of the other doctors.
It is true that Dr Patrick’s sensory findings were similar to those reported elsewhere, but that does not mean that the applicant suffered a right shoulder injury. Further, the doctor diagnosed a post-concussive syndrome with multiple symptoms including neck pain, but contrary to Mr Goodridge’s submission, Dr Patrick did not mention arm pain in his opinion.
Whilst Dr Patrick observed a restricted range of movement in the right shoulder, he failed to provide a diagnosis that might explain his clinical findings and merely stated that the applicant’s employment was a substantial contributing factor to his injury. The doctor did not explain precisely what that injury was.
Mr Goodridge conceded that whilst the doctor did not provide a diagnosis, one would have no difficulty accepting his opinion. Unfortunately, I do not agree with this submission.
In my view, Dr Patrick does not provide a “fair climate” for his opinion.[10] He did not provide a diagnosis and he did not explain how he came to his conclusion. He only briefly commented on the views of the other doctors and did not engage with them in any great detail so as to justify his position. Accordingly, his views carry little, if any, weight.
[10] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11, and Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
Having regard to the common-sense test in Kooragang and the principles discussed in Ireland, I am not satisfied that the applicant has discharged the onus that he sustained an injury to his right shoulder arising out of or in the course of his employment with the respondent on 12 May 20220. In the circumstances, there will be an award for the respondent in respect of the allegation of injury to the applicant’s right shoulder.

Quantification of whole person impairment

I will remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment of the whole person impairment of the applicant’s cervical spine and hearing due to injury sustained on 12 May 2020.

FINDINGS

The applicant sustained an injury to his cervical spine and hearing arising out of or in the course of his employment on 12 May 2020.
The applicant’s employment was the main or a substantial contributing factor to his injury.
The applicant did not sustain an injury to his right shoulder on 12 May 2020.
Award for the respondent in respect of the allegation of an injury to the applicant’s right shoulder on 12 May 2020.
I remit this matter to the President for referral to two Medical Assessors pursuant to s 321 of the 1998 Act for assessment of the whole person impairment as follows:
Date of injury: 12 May 2020 – Personal injury
Body systems / parts: a. Cervical spine.
b. Loss of hearing.
The documents to be reviewed by the Medical Assessor are:
(a)    The Application with attached documents;
(b)    Reply with attached documents;
(c)    Application to Admit Late Documents received on 3 November 2023;
(d)    Application to Admit Late Documents received on 7 November 2023, and
(e)    Application to Admit Late Documents received on 7 November 2023.

[2023] NSWPIC 608

10 November 2023