Rainbird v Mountain Trail Engineering Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Rainbird v Mountain Trail Engineering Pty Ltd [2021] NSWPIC 360
APPLICANT:	Nicole Rainbird
RESPONDENT:	Mountain Trail Engineering Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	20 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits; whether the worker’s entitlement to weekly compensation was due to partial or total incapacity; Wollongong Nursing Home Pty Ltd v Dewar considered and applied; Held – applicant had no current work capacity since 16 April 2021 and was entitled to receive payments pursuant to section 37(1) of the Workers Compensation Act 1987 from 16 April 2021 to date and continuing.
DETERMINATIONS MADE:	1. Claim for section 60 expenses discontinued. 2. Respondent to pay the applicant weekly benefits pursuant to s 37(1) of the Workers Compensation Act 1987 at the rate of $1,014.25 per week from 16 April 2021 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

The applicant, Nicole Rainbird (Ms Rainbird), was employed by the respondent, Mountain Trail Engineering Pty Ltd (the respondent), as a sewing machinist. The respondent was insured by iCare/ Employers Mutual NSW Limited (EML) at all relevant times.
Ms Rainbird sustained injuries to her neck, right arm, low back and shoulders in the course of employment due to the nature and conditions of her employment, which included sewing heavy canvas products with the date of injury being 9 April 2019.
Ms Rainbird made a claim for weekly benefits and medical treatment.
iCare disputed that Ms Rainbird was entitled to compensation for the cervical spine and right shoulder injury in a section 78 notice dated 30 June 2020.
iCare issued a review notice dated 15 September 2020 maintaining the decision dated 30 June 2020.
iCare issued a further section 74 notice dated 23 February 2021 disputing the claim for ongoing weekly benefits in respect of the injury on 9 April 2019. iCare disputed that the injury arose out of employment as required by section 4 of the Workers Compensation Act1987 (the 1987 Act) and did not agree that employment was a substantial contributing factor to the injury as required by s 9A of the 1987 Act. Further, iCare did not agree that Ms Rainbird was entitled to weekly payments or medical expenses for the claimed injury as she did not have total or partial incapacity for work resulting from a work injury as required by s 33 of the
1987 Act and because medical treatment was not reasonably necessary as a result of an injury as required by ss 59 and 60 of the 1987 Act.
In a letter dated 27 August 2021 to Ms Rainbird’s solicitor, Ms Brown of Hicksons Lawyers advised that the only issue in dispute was Ms Rainbird’s entitlement to weekly payments due to “total partial incapacity for work” under s 33 and ongoing medical expenses for the claimed shoulder injury. Ms Brown noted that in these circumstances, iCare would not be issuing an amended s 287A notice “making reference to the cervical spine, which was initially included by way of error”.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) Ms Rainbird’s entitlement to weekly compensation due to partial or total incapacity for work under s 33 of the 1987 Act on and from 16 April 2021 to date and continuing.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration via MS Teams on 7 September 2021. Ms Rainbird was represented by Mr Ty Hickey, who was instructed by Ms Sharla Sutcliffe of Don Cameron & Associates. The respondent was represented by Mr Fraser Doak, who was instructed by Ms Belinda Brown of Hicksons Lawyers. Ms Barker and
Mr Lacsina from the insurer also attended the conciliation conference and arbitration.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertions made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)   Application to Resolve a Dispute and attached documents;
(b)   all documents attached to the Application to Admit Late Documents dated
9 August 2021 filed by the applicant;
(c)   Reply and attached documents, and
(d)   all documents attached to the Application to Admit Late Documents dated
2 September 2021 filed by the respondent.

Submissions

The submissions of the parties during the arbitration were recorded and I do not propose to repeat each of the arguments of counsel in these reasons.
However, the respondent submitted that I should accept the opinions expressed by
Dr Wallace and Dr Giblin and find Ms Rainbird fit on a full-time basis for light sedentary duties in which employment she could earn about $800 per week.
Ms Rainbird’s counsel submitted that, taking into account the nature of the injury, the certificates of capacity issued by her general practitioner, her age, education, skills and work experience as well as rehabilitation, there should be a finding of no current work capacity.

FINDINGS AND REASONS

Evidence of Nicole Rainbird

In a statement dated 16 November 2020, Ms Rainbird said that she completed Year 11 at Yeronga High School and after finishing school commenced courses in childcare, RSA, and cooking industries. She stated that prior to commencing work with the respondent she worked for Malibu Boats as a cleaner. Ms Rainbird said that she commenced working for the respondent in February 2015 on a full‑time basis as a sewing machinist. She said that prior to her injury she worked 43 hours per week and her duties involved sewing, general cleaning, measuring large items and cutting materials. She stated that her annual gross salary was around $55,120 per annum and she last worked on 21 November 2019.
The applicant said that in December 2018 she started to experience pain in her neck and right shoulder. She stated that she was working 10 hour days and her head was constantly down, and she had spent nearly four years doing this work. She said that some of the items she was required to sew were quite heavy and she was also required to measure annexe walls and lift heavy rolls of canvas and other materials. Ms Rainbird said that the pain in her right shoulder and neck “was becoming constant and got worse the longer I continued working”. She said that she subsequently started using her left arm to complete most of her duties, and then noticed pain in her left shoulder. She said that despite her symptoms she continued working her regular duties.
Ms Rainbird stated that on 9 April 2019 she reported the pain in the right shoulder and neck to her employer and consulted her general practitioner (GP), Dr Glen Mobilia. She said that she took two weeks off work, then gradually returned to work for 10 hours per week which was eventually increased to 15 hours per week. Ms Rainbird said that she started to receive cortisone injections to the neck which did relieve her symptoms, but this was only effective for approximately three months.
Ms Rainbird said that she eventually approached the respondent and told them she could no longer sew due to ongoing pain and was given a detailing job. She said that she worked in that position for 15 hours a week but her employer started pressuring her to increase her hours. She stated that she then attended Dr Mobilia, who increased her hours to 20 hours per week. Ms Rainbird stated that the respondent again pressured her to increase her hours. She stated that on 21 November 2019 she was called into the office by the manager, Nick Pryor, and was advised that they had no suitable duties for her, and they did not want to be responsible for any further injury. She said that she was told to go home and get better. She stated she had not returned to work since this time.
The applicant stated that she was referred to an orthopaedic surgeon, Dr Matthew Howard, in November 2019. She said that she was given cortisone injections in her neck, which did not help, and was then reviewed in December 2019 and January 2020. She said that in March 2020 she underwent a CT guided C5 nerve block which provided some relief, but she still had pain across both shoulders and the neck. She said that Dr Howard recommended she undergo a right shoulder arthroscopy and debridement. Ms Rainbird said a request for surgery was made to the insurer, iCare, but on 30 June 2020 she was issued with a section 78 notice. She said she continued to receive weekly payments of compensation in respect of the accepted injury to the left shoulder, thoracic and lumbar spine, but iCare denied liability for the right shoulder and neck injury.
Ms Rainbird stated that currently she had frequent pain in her neck and in both shoulders which varied on a day‑to‑day basis. She stated that she got pins and needles which radiated down the right arm affecting several fingers in her right hand, and she also got pins and needles in her left arm down to the elbow. She said that she got some pain in her lower back on the right side, and pain within the thoracic spine, mainly on the left. She said she could not lift any more than 5kg in each arm. Ms Rainbird stated that she sometimes would wake in pain and have pins and needles. She stated that she managed to attend to personal needs such as showering and dressing but had difficulty with tasks that required her to lift her arms, such as putting on a sweater. She said she could not hang out the washing and relied on her husband to assist with household duties.
In a statement dated 21 April 2021, Ms Rainbird said that in December 2018 the only symptoms she was experiencing at the time were in her neck and right shoulder, and those symptoms had started as a subtle pain in the neck and right shoulder but increased in severity as she continued work. She stated that in addition to her job sewing items, picking up rolls of material and measuring annexes, she would also clean the inside and outside of caravans.
Ms Rainbird stated that despite noticing pain and restricted range of movement in her neck and right shoulder in December 2018, she continued working and did not consult with her GP until April 2019. She said that she had hoped that her symptoms would resolve and did not want the stigma attached with lodging a workers compensation claim.
Ms Rainbird stated that when she returned to work in the months after reporting her injury, her duties changed, and she was given the role of detailing and various other duties. She said that she continued cleaning duties but would vacuum, mop and sweep using her left arm only. She said that the pain in the neck and right shoulder which had become noticeable in December 2018 continued to worsen and radiate down her right arm with tingling in the fingers of her hands. She stated that by April 2019 she had also begun to develop mid and lower back pain. Ms Rainbird said that by December 2019 Dr Howard was of the opinion her neck was the cause of her ongoing symptoms, so he arranged nerve root injections and nerve blocks to try and help alleviate the pain. She said that they did help, but only for about three months.
Ms Rainbird said that Dr Howard offered to perform a right shoulder debridement procedure on the basis he thought there was some damage to the shoulder, but liability for this procedure was denied by the insurer. She said she subsequently consulted with
Associate Professor Jin Tee, neurosurgeon, in November 2020, who recommended nerve root injections to ascertain what part of her symptoms were from the shoulder and which part were from the neck. She stated she had not been able to have those injections as the insurer declined liability for her injuries.
Ms Rainbird said Dr Howard had agreed with Associate Professor Tee that the injections should be performed. Ms Rainbird said that the only treatment recommended that she currently received for the mid and lower back was physiotherapy. She said she continued to take pain relief medication and to have physiotherapy for the neck, right shoulder, and left shoulder injuries.
In relation to Dr Wallace’s report dated 10 February 2021, Ms Rainbird stated that some of the history recorded by Dr Wallace was incorrect as she first noted back pain in April 2019 and not in August 2020, nine months after ceasing work. Ms Rainbird said that she reported back pain to Dr Mobilia in April 2019, and he had sent her for a scan on the back as well as her neck. Ms Rainbird stated that Dr Wallace also said she had not received any treatment for the back injury, which was incorrect as she had physiotherapy performed by Back on Track physiotherapy. Further, she said that Dr Wallace reported under “past history” that she had no further history of injury or episodes of pain in her spine or shoulders since May 2020, which was incorrect, and that she had constant pain in those body parts since May 2020.
Ms Rainbird noted that Dr Wallace said under the heading “present complaints” that she had no radiating pain into the shoulders or arms which was incorrect. She stated that Dr Wallace reported she had no difficulty dressing herself, which was incorrect, and she had told Dr Wallace she had difficulty in dressing when she had to lift her arms above her head. She noted Dr Wallace also said she was able to drive a motor vehicle, but he neglected to point out she had difficulty driving a car because she struggled to turn her head left and right.
Ms Rainbird said that she had not had any problems with her neck, right shoulder, left shoulder or back prior to working with the respondent. She stated she was previously able to perform all her work duties without limitation and had performed her job for three years before the symptoms developed. She said that she had previously performed recreational activities such as fishing, kayaking and water sports without limitation but could no longer participate in those activities.

Medical Reports

Medico‑Legal Reports

In a report dated 22 August 2020, Dr John Sheehy, consultant neurosurgeon, noted he had examined Ms Rainbird and she had told him about the injury which occurred while working as a sewing machinist in December 2018. She told him that she began to experience pain in her neck with radiation into the right shoulder and proximal right arm. He noted that the pain was constant at the beginning and became gradually worse, but she continued working and then noticed she was developing symptoms on the left side of the neck and the left shoulder as well. He noted that the injury was reported to the manager, and she had two weeks off work and a graduated return to work. He noted that during this time she underwent a cortisone injection to her neck which improved her symptoms for approximately three months. Dr Sheehy reported she was seen by Dr Matthew Howard on 14 November 2019, and he administered a cortisone injection for the shoulder which did not assist and in 2020 she underwent a CT guided C5 nerve root block.
On examination, Dr Sheehy reported that cervical flexion and extension were full, but she was limited in the terminal 20 degrees of lateral tilting and lateral rotation bilaterally. He reported shoulder abduction was 120 degrees on the left and 90 degrees on the right. He noted the shoulder movements were full, and tone, bulk and power in the upper limbs were normal. He reported that the left biceps jerk was markedly depressed compared with the right, and the triceps jerks were symmetrically visible. Dr Sheehy reported that Ms Rainbird complained of neck pain with bilateral shoulder pain and pins and needles radiating at times into the right arm and affecting the ring and middle fingers of the right hand. He noted she also complained of pins and needles affecting the left hand as far as the elbow, but with no involvement of the fingers with the symptoms.
Dr Sheehy commented on the report of the CT scan of the cervical spine undertaken on 2 May 2019 and noted that there was significant disc bulging with moderate left neural foraminal narrowing and mild right neural foraminal narrowing at C4/5. He noted that at C5/6 there was a large disc osteophyte complex with significant narrowing of the left neural foramen and moderate narrowing of the right neural foramen. He noted that at C6/7 there was a moderate diffuse disc bulge but no central or neural foraminal narrowing.
Dr Sheehy reported that he had seen the report of the MRI scan of the cervical spine undertaken on 10 February 2020 and noted that there was an indentation of the anterior thecal sac seen at C4/5 and C5/6 on myelographic views. He noted at C4/5 the disc was mildly narrowed with minor diffuse annular bulge with bilateral uncovertebral joint osteophytosis. In addition, there was a small right posterior lateral disc osteophyte complex and mild to moderate spinal canal stenosis. There was mild left and mild‑to‑moderate right C5 exit foraminal stenosis. Dr Sheehy reported at C5/6 the disc was markedly narrowed with mild left and marked right uncovertebral disc joint osteophyte complex and mild spinal canal stenosis. He noted there was also mild to moderate left and moderate to severe right C6 exit foraminal stenosis.
Dr Sheehy noted he had seen the report of Dr Howard dated 19 February 2020 in which
Dr Howard commented that Ms Rainbird had bilateral severe C6 compression worse on the right than the left. Dr Sheehy reported that he had also seen the MRI scans of the shoulders dated 17 August 2020 and 18 October 2019.
Dr Sheehy was of the view that Ms Rainbird had soft tissue injury of both shoulders but the significant problem for her was compression of both C6 nerve roots in the cervical spine. There was a restricted shoulder movement bilaterally, however, Ms Rainbird experienced pins and needles in both arms as well as pain radiating into the proximal arms with the pins and needles being more extensive on the right. There was an absent left biceps jerk and the MRI scans confirm C6 nerve compression. The major pathology was compression of the C6 nerve root in the cervical spine at C5/6.
Dr Sheehy wrote:
“The relationship between any such injury and any work incidents recited in the history, employment duties or employment; she developed symptoms while undertaking repetitive twisting and turning in the course of her work as a sewing machinist and as such there is a causal link between the employment and the development of symptoms.”
Dr Sheehy concluded that the nature and conditions of employment had been a substantial contributing factor to the aggravation of an underlying degenerative change in the cervical spine at C5/6.
Dr Sheehy considered that Ms Rainbird was totally unfit for her pre‑injury work and required to be off work and be reviewed by a neurosurgeon and have the C6 nerve roots decompressed in view of the significant axial pain. Dr Sheehy considered that this decompression would be best performed anteriorly with a discectomy at C5/6 and establishment of an anterior cervical fusion at this level.
In terms of the restrictions to be placed on Ms Rainbird’s capacity for work on the open labour market, Dr Sheehy concluded that she was unfit for work at the present. He noted that in terms of present physical capabilities she should avoid any duties involving repetitive lifting or bending.
Dr Sheehy considered that Ms Rainbird may be advised to have injections into the left shoulder following further orthopaedic review. He considered that treatment including the left C6 peri‑radicular block and injections in the right shoulder and an arthroscopic procedure on the right shoulder were reasonable and necessary at the time provided.

Dr Sheehy wrote:
“Ms Rainbird does need an anterior cervical fusion at C5/6 and she needs to be away from work for a month to six weeks following surgery, then to resume duties involving no lifting or bending. Depending on the progress, she may be fit to resume pre‑injury duties, but there may be some restriction again repetitive lifting and twisting in the longer term.”
In a report dated 23 February 2021, Dr Peter Giblin, orthopaedic surgeon, stated that he examined Ms Rainbird on 18 February 2021. He noted that she had been working full time as a sewing machinist in a canvas factor and in December 2018 developed the onset of pain in her right shoulder and in the right side of her neck while she was at work. He reported that the harder and the more she worked, the worse her symptoms became so she started to favour the right side and then developed similar symptoms in the left side. He noted that the injury was reported to her employer on 9 April 2019, and she was off work for two weeks and then returned to suitable duties. Dr Giblin noted she had a cervical spine injection which gave her some benefit for about three months. He reported that on 21 November 2019 she was told to go home and not to return until she got better. He noted that she remained off work.
Dr Giblin reported that Ms Rainbird’s chief complaint was neck pain and stiffness with bilateral shoulder pain, the left worse than the right. He noted that the low back area was painful and radiated around to both iliac crests.
Based on examination and the history, Dr Giblin made a diagnosis of soft tissue injury in the course of her employment involving the neck and right shoulder. He concluded that employment was the main contributing factor to this disease injury. He noted that the proposed right shoulder arthroscopy and debridement proposed by her treating specialist was reasonably necessary as it was intended to provide some degree of symptoms relief and provide Ms Rainbird with improved work opportunity.
In a supplementary report dated 4 May 2021, Dr Giblin noted he saw Ms Rainbird on 28 April 2021, and she had reported persisting symptoms, primarily in the neck and shoulders and to her low back radiating towards her hips. He noted current treatment consisted of physiotherapy once a week, prescriptive medications including analgesics and Lyrica, and she saw her GP once a month.
Dr Giblin noted that the findings on physical examination were largely unchanged from the previous time. He noted that the active range of motion of her cervical spine remained restricted, asymmetrical and there was ongoing restriction of active movement primarily of her right upper extremity. He noted there was no change in the overall physical examination of her lower back and lower extremities.
Dr Giblin considered that Ms Rainbird was unfit for repetitive prolonged usage of her upper extremities or axial skeleton. He wrote:
“She is fit for a sedentary work environment, avoiding the aforementioned physical restrictions and one in which she can change her body habitus at will.
Nonetheless, her ongoing incapacity will chamfer her work opportunities in the open labour market, not only by virtue of the deterioration of her injuries, but also the increased capacity for further material aggravation from innocuous physical events.”
In a report dated 4 June 2020, Dr Raymond Wallace, consultant orthopaedic surgeon, noted he examined Ms Rainbird on 28 May 2020. He reported that she had been employed as a sewing machinist by the respondent from February 2016 and in 2019 was employed on a full‑time basis working 44 hours a week. He reported that in November 2018 she noticed the gradual onset of pain at the cervical spine extending from C2 to C7 and radiating to the right lateral base of her neck with no history of specific injury. He reported that she continued with her normal duties and noted worsening of the pain in her neck which then radiated to her shoulder. He noted that she subsequently used her left arm to do most lifting tasks and later noted the onset of pain in the left shoulder and reported these symptoms to her employer on 9 April 2019.
Dr Wallace noted that Ms Rainbird had been reviewed by her general practitioner, Dr Mobilia, referred for physiotherapy, underwent a cortico‑steroid injection at the cervical spine which relieved pain for some three months, and had been reviewed on 14 November 2019 by Dr Howard, orthopaedic surgeon, who recommended a suprascapular nerve block injection of the right shoulder. Dr Wallace reported that on 22 January 2020 she underwent an ultrasound guided cortico‑steroid injection in the right shoulder, which did not relieve her pain. He reported that in March 2020 she underwent CT guided C5 nerve root block injections bilaterally a week apart. He noted that in mid‑April 2020 Dr Howard reviewed her and recommended operative intervention at the right shoulder in the form of a labral repair.
Under “present complaints”, Dr Wallace noted that Ms Rainbird complained of a constant aching pain at the right lateral base of her neck radiating to the superior border of the right trapezius muscle and the lateral deltoid region of the right shoulder with no radiation to the left shoulder and arm. He noted she complained of numbness of the dorsum of the right forearm and intermittent paraesthesia at the middle and ring fingers of her right arm, weakness of the right arm and stiffness at her cervical spine and right shoulder.
Dr Wallace noted that on 15 November 2019 Ms Rainbird was sent home from work as her employer was unable to provide her with light duties options.
On examination, Dr Wallace noted that neurological examination of the upper limbs showed equal and symmetrical reflex and power and light touch sensation were intact. Examination of the cervical spine showed no swelling or deformity, and she had a range of movement of flexion 30 degrees, extension 30 degrees, left rotation 50 degrees and right rotation 50 degrees, left lateral tilt 30 degrees and right lateral tilt 30 degrees. He reported there were no tender areas. He noted that examination of the left shoulder showed no swelling or deformity, and she had a range of movement of flexion 180 degrees, extension 40 degrees, abduction 140 degrees, adduction 20 degrees, external rotation 70 degrees and internal rotation 70 degrees. He reported examination of the right shoulder showed no swelling or deformity and a range of movement of flexion 140 degrees, extension 40 degrees, abduction 80 degrees, adduction 20 degrees, external rotation 70 degrees and internal rotation 70 degrees. He reported that the biceps tendon was intact, but she had a negative impingement sign and reduced strength in abduction and external rotation of the right shoulder due to aggravation of pain.
Dr Wallace reviewed the CT investigation dated 26 April 2019 and noted that there was a significant disc bulge at C4/5 with moderate neural foraminal narrowing and mild right neural foraminal narrowing, a large disc osteophyte complex at C5/6 with significant narrowing of the left neural foramen and moderate narrowing of the right neural foramen and at C6/7, a moderate diffuse disc bulge.
Dr Wallace made a diagnosis of a spontaneous onset of cervical spinal pain on 9 April 2019 with pre‑existing multi‑level degenerative cervical spondylosis which was non‑work related and irritative right C6 radiculopathy secondary to degenerative cervical spondylosis which was non‑work related. Dr Wallace noted that Ms Rainbird was currently using Lyrica medication.
Dr Wallace concluded that Ms Rainbird’s current cervical spine and right shoulder symptoms were due to pre‑existing degenerative cervical spondylosis with irritative right C6 radiculopathy which was constitutional in origin and unrelated to employment. He concluded that there was no objective medical evidence that her employment had caused any work‑related injury in the cervical spine. He considered that she would have noted the onset of cervical spine or right upper limb symptoms at the same time or at the same stage of her life if she had not been at work or employed by this employer. He considered that the right shoulder symptoms were due to the referred pain from her degenerative cervical spinal condition due to irritative right C6 radiculopathy.
Dr Wallace concluded that Ms Rainbird would not benefit from operative intervention at the right shoulder as the current right shoulder symptoms were due to referred pain from her degenerative cervical spine condition. He considered that she did not require any treatment of medical review for any work‑related condition at the cervical spine or right shoulder. He concluded that the recommended right shoulder arthroscopy was not reasonably necessary in relation to a work‑related injury at her right shoulder.
In a report dated 10 February 2021, Dr Raymond Wallace noted he had re‑examined Ms Rainbird on 4 February 2021. Under “history” he wrote:
“Ms Rainbird claims to have noted the onset of thoraco-lumbar spinal pain in August 2020, some 9 months after she ceased work. At that time, she noted the gradual onset of pain at her thoraco-lumbar spine without a history of injury.”
He reported that present complaints included a constant aching pain at C5, C6 and C7 spinus [sic] processes relating to the left scapular spine and the superior border of the right trapezius muscle with no radiation to the shoulders or arms. He reported Ms Rainbird noted intermittent paraesthesia and numbness of the lateral aspect of her left arm to the level of the elbow and complained of weakness at her upper limbs and stiffness at her cervical spine. Dr Wallace reported that at the lumbar spine she noted intermittent aching pain at the left paralumbar region at L4 radiating to the right posterior superior iliac crest and the lateral aspect of her right hip.
Dr Wallace noted Ms Rainbird had remained off work since November 2019. He reported that at home she had no difficulty dressing herself, but her sleep was disturbed every night by ongoing pain. He noted she was able to drive a motor vehicle. He reported that she had difficulty with housework tasks involving hanging clothes on the line, mopping or vacuuming, and had been unable to return to home maintenance activities of mowing and gardening.
Dr Wallace carried out a clinical examination and reviewed the investigations.
On examination, Dr Wallace noted that neurological examination of the upper limbs showed an absent left biceps jerk. Examination of the cervical spine showed no swelling or deformity, and she had a range of movement of flexion 20 degrees, extension 20 degrees, left rotation 50 degrees and right rotation 70 degrees, left lateral tilt 20 degrees and right lateral tilt 20 degrees. He reported that there was tenderness at the C5/6 spinous process. He found that examination of the left shoulder showed no swelling or deformity, and she had a range of movement of flexion 140 degrees, extension 30 degrees, abduction 110 degrees, adduction 10 degrees, external rotation 70 degrees and internal rotation 60 degrees. He reported that there was tenderness globally about the left shoulder. Examination of the right shoulder showed no swelling or deformity and a range of movement of flexion 140 degrees, extension 30 degrees, abduction 110 degrees, adduction 30 degrees, external rotation 70 degrees and internal rotation 60 degrees. Examination of the thoraco-lumbar spine showed a range of movement of extension 20 degrees, left lateral tilt 20 degrees, right lateral tilt 20 degrees, left rotation 70 degrees and right rotation 70 degrees. He reported there was tenderness at the L3 spinal process.
Dr Wallace made a diagnosis of spontaneous onset of cervical spine pain on 9 April 2019, pre‑existing multi‑level degenerative cervical spondylosis – non‑work related, and irritative right C6 radiculopathy secondary to degenerative cervical spondylosis – non‑work related. He noted that since his last review Ms Rainbird had continued with intermittent use of physiotherapy and medications of Lyrica, Tramadol and Panadol.
Dr Wallace concluded there was no objective medical evidence that Ms Rainbird suffered any work‑related injury at her thoraco‑lumbar spine, noting that the onset of thoraco‑lumbar symptoms occurred in August 2020, some nine months after she ceased employment with the respondent. He considered that the current thoraco‑lumbar spinal symptoms were due to age‑related degenerative thoracic and lumbar spondylosis which was constitutional in origin and entirely unrelated to her employment. He noted that as detailed in his previous report, there was no objective medical evidence that Ms Rainbird had suffered any work‑related injury at her cervical spine whilst in the respondent’s employment.
Dr Wallace concluded that Ms Rainbird had no current incapacity as a result of any work‑related conditions at her spine or bilateral shoulders. He considered that she did not require any treatment or medical review for any work‑related conditions at the spine or bilateral shoulders.
Dr Wallace expressed the view that Ms Rainbird would not be fit for activities involving repetitive bending or twisting movements at her cervical or thoraco‑lumbar spine, sitting or standing in one position for prolonged periods, or repetitive lifting above 5kg. He wrote:
“She is currently fit to return to work at full time light duties with due consideration given to restrictions on her activities detailed above.”
Dr Wallace was asked whether Ms Rainbird had a capacity to work in alternative employment generally, and specifically as a receptionist, administration assistant or customer service representative, either part time or full time. Dr Wallace responded, stating:
“Ms Rainbird would be fit to work currently in alternative employment as a receptionist, administration assistant or customer service representative on a full‑time basis with due consideration given to the restrictions on her activities detailed above.”

Records and reports of treating doctors and health professionals

In a report dated 15 November 2019, Dr Matthew Howard, treating orthopaedic surgeon, noted that Ms Rainbird had a problem basically with both upper limbs but primarily the right shoulder and her neck, since about April 2019. He reported she had been experiencing quite marked pain around her neck and into her arm and had shoulder pain and pain extending down the lateral aspect of her right arm. He noted she had a right C6 nerve root injection which made some difference, and a right subacromial injection which made some difference. Dr Howard noted that unfortunately her pain continued. He referred to the imaging studies including the MRI of the shoulder, which showed that the cuff mechanism was intact, although she had a SLAP tear. He noted the CT of the neck showed some changes of the C6 level but also other foraminal narrowing throughout the cervical spine. Dr Howard recommended that she have a suprascapular nerve block which could provide some guide as to the origin of her pain and whether it was in the shoulder or the neck.
In a report dated 16 December 2019, Dr Howard requested formal permission for an AC joint injection of the right shoulder. He expressed the view that given the symptoms and the bilateral nature of them, the central issue was most likely the cervical spine.
In a report dated 22 January 2020, Dr Howard stated that the last time he saw Ms Rainbird, she continued to complain of bilateral upper limb pain. He stated that he attempted to arrange an AC joint injection for the right shoulder and tried a short course of anti‑inflammatories to see if that would help. He wrote: “The last time I saw her she certainly was not in a position to return to work. I am happy to assess this when I see her again in February.” He noted that although he hoped she would ultimately be able to return to her pre‑injury role, he was still working through the issues as to the origin of the shoulder pain.
In a report dated 19 February 2020, Dr Howard stated that he had reviewed Ms Rainbird on 18 February 2020, and that the AC joint injection had some effect, but she continued to have pain around her shoulder, including around the left shoulder. He noted the MRI scan of the cervical spine showed bilateral C6 compression much worse on the right than the left. He stated it was reasonable to offer a perineural nerve root injection on both sides to see if the pain could settle. He noted that she had neck and back pain in addition.
In a report dated 28 April 2020, Dr Howard stated that the perineural nerve root injections gave Ms Rainbird some benefit but more in the spine than in the shoulder. He noted that she was still complaining quite bitterly about shoulder pain, and they have not really advanced the situation. He stated that they had now tried a suprascapular nerve block and AC joint injection and a C6 nerve block, but these had not really resolved her problems. On examination he noted the shoulder range of movement remained irritable and perhaps some labral damage was the cause of the issues. He considered it reasonable to repeat the MRI scan with an arthrogram. He also considered it reasonable to offer surgery for a debridement procedure which hopefully would solve the pain.
In a report dated 22 June 2020, Dr Howard referred to Dr Wallace’s report and stated that from his point of view, when he last saw Ms Rainbird he “felt her shoulder was significant”. He wrote: “I am very happy, however, to accept Dr Wallace’s opinion. He is a very experienced medico‑legal examiner, and I do not have any reason to argue with his suggestions”.
In a report to the insurer dated 24 July 2020, Dr Howard noted that he was happy to offer
Ms Rainbird surgery on the right shoulder. He stated that he had extensively investigated
Ms Rainbird and had not been able to solve her pain. He considered that a shoulder arthroscopy in these circumstances was reasonable on the basis that several injections had not rendered her more pain‑free. He wrote:
“In reference to Dr Wallace’s report, I definitely agree that her neck is an issue. I do not think that I will solve all of her pain by offering her shoulder surgery, but I may make some contribution in reducing her pain.
Dr Wallace is an experienced medico‑legal examiner as I have noted. He is suggesting Ms Rainbird’s pain is basically due to her neck which is not necessarily a workers compensation issue.
I would however agree with Dr Mobilia that Ms Rainbird’s symptoms have been manifested by work activities that she undertakes, and I remain happy to offer her surgery. I hope this clarifies the situation from my point of view.”
In a report dated 10 December 2020, Dr Howard noted he had reviewed Ms Rainbird on 9 December 2020. He noted he had requested permission twice for arthroscopic debridement of the right shoulder, which had been declined. He reported that Ms Rainbird said she had been experiencing quite marked left shoulder pain for some time which extended down her arm and was fairly constant, and she especially had troubles at night. On examination he found the left shoulder was quite irritable with forward elevation only possible to 120 degrees.
Dr Howard wrote:
“Certainly I would agree with Dr Tee. It is certainly possible that Ms Rainbird’s symptoms are attributable to her cervical spine. I understand that she has had an independent medical review now from Dr John Sheehy, who is supportive of further treatment of her neck. I would advocate neck treatment as well, as does Dr Tee. If Dr Tee’s injections were to be successful, then I would be confident that this will make a difference to Ms Rainbird’s pain in regard to her left shoulder. I think this would be a useful adjunct to her treatment.
I would support Dr Tee’s suggestion of bilateral C5 and C6 perineal nerve root injection. I won’t necessarily intervene in Ms Rainbird’s left shoulder at present, as
I am hoping the cervical spine injections will help with this pain as well.”

In a report dated 25 November 2020, Associate Professor Jin Tee, treating Neurosurgeon (previously referred to as Dr Tee), noted he had seen Ms Rainbird, who had been referred to him to work out why she had such bad bilateral cervical brachialgia.
Associate Professor Tee wrote:
“She likely does have polyradiculopathy of both the C4 and C6 nerves. Her MRI does concur, showing C4/5 and C5/6 foraminal stenosis bilaterally. There are also elements of cord indentation. She gets some evidence of Lhermitte’s phenomenon especially when she extends her neck and her pain shoots down both areas to her deltoid, which shows C5 irritation. She gets tingling that goes down to her C6 dermatome. She gets discomfort all the time. She finds it very disabling. She is still able to perform her personal activities of daily living, but apart from that it is done every day with discomfort. She finds that this affects her, and I am certain that there is a mental fatigue component to the constant neurological dysfunction.
In the first instance, as she does have concomitant diagnosis of shoulder issues, I would like her to have bilateral C5 and C6 nerve root injections to ascertain what part is from her shoulders and what part is from the cervical spine. Prior to this, she has had C6 nerve root injections with good effect for 3 months and I am hopeful that these 4 injections can give her even better effect, to the point of giving her good quality of life with posture remodelling and augmentation, and to avoid surgical intervention.”
Associate Professor Tee requested that this treatment be approved as soon as possible.
In a report dated 5 July 2021, Dr Mobilia noted that Ms Rainbird presented as being in extreme pain such that she was in tears, prompting concern on his part in relation to her personal safety, particularly as essential standard treatment had been denied in what he considered to be a straightforward work‑related injury. Dr Mobilia stated that he also raised concerns in regard to the way in which the insurer had interpreted some of the report components. He noted Ms Rainbird had been referred to a treating neurosurgeon, Associate Professor Tee, in relation to the spinal component of the injuries, and to Dr Howard in relation to the upper limbs. Dr Mobilia stated there should be no delay in implementing recommendations and that delays in treatment would impede Ms Rainbird’s rehabilitation potential and might render her treatment resistant and permanently disabled, which could to some extent be avoided with prompt standard treatment. Dr Mobilia said that the delay was certainly contributing to a worsening prognosis for Ms Rainbird and increasing concerns in relation to her safety.
In the clinical notes of Dr Mobilia, the following details were included:
(a)   in an entry dated 9 April 2019, Dr Corbett noted: “Neck and shoulder pain for months. Recurrent tingling in middle fingers of both hands. No decrease in strength.” A referral was made for an x‑ray of the cervical spine;
(b)   in an entry dated 18 April 2019, Dr Mobilia noted that there had been an x‑ray of the cervical spine on 9 April 2019. He prescribed Lyrica. He requested imaging of the thoraco‑lumbar spine and noted cervical spine disc pathology was symptomatic, cerviogenic headaches;
(c)   in an entry dated 3 May 2019, Dr Mobilia noted that the applicant had multi‑level “sponlysis”. He noted management options included physiotherapy and he requested a C5/6 steroid/local anaesthetic epidural as the cervical spine pain radiated along the shoulders bilaterally;
(d)   In an entry dated 8 May 2019, Dr Mobilia noted that there was “work related multi level n cx thoracic and probably lumbar pain with neurogenic features radiation”. He noted the patient had been working 3 years undertaking heavy industrial sewing, especially canvas products. He reported: “Nil history of preceding symptoms.” He noted it was progressively worse and “the neck pain base neck cervico headaches, pain radiating along arms in the C5/6 distribution bilaterally, thoracic spine similar”. He noted “lumbar spine paraesthesia, pain at left little toe positive … sign”;
(e)   in an entry dated 13 May 2019, Dr Corbett noted that there had been work‑related multi‑level CX thoracic and lumbar pain;
(f)    in an entry dated 27 May 2019, Dr Mobilia noted there had been good benefit from steroid injections but there was a delay about physiotherapy, and it was imperative it should commence. He noted that alternative duties were to be provided by the workplace;
(g)   in an entry dated 25 June 2019, Dr Mobilia noted there had been improvement to some extent from not undertaking repetitive work. He noted the patient was increasing her hours at work and physio was continuing;
(h)   in an entry dated 12 August 2019, Dr Mobilia note that the patient presented specifically for dry needling for the cervical spine and bilateral shoulder girdle injuries. He noted the shoulder girdle injuries were being investigated and she had obtained good relief, albeit temporary, with a localised CX spinal nerve block at C6 level;
(i)    in an entry dated 15 August 2019, Dr Mobilia noted that there was work‑related multi‑level CX thoracic and probably lumbar pain with neurogenic features radiation;
(j)    in an entry dated 22 August 2019, Dr Mobilia noted that the initial treatment of the shoulder girdle work‑related injury was conservative in the form of shoulder girdle exercises and strengthening through a physiotherapist;
(k)   in an entry dated 12 September 2019, Dr Mobilia noted there had been a case conference with the patient and Naomi from Pinnacle. He noted the aim was trying to stay with the same employer with incremental increase in hours of work in alternative or other duties not requiring sewing which caused the injury in the first instant. He wrote: “Otherwise will require vocational assessment and appropriate retraining. The former is preferable and keeping the patient at work obviously preferable”;
(l)    in an entry dated 25 October 2019, Dr Mobilia noted that the injury to the right shoulder girdle was a SLAP labral injury, and it was symptomatic “re pain such that the patient had significant reduced sleep pain radiating to right elbow”. He noted that she had a simultaneous neck injury for which she was receiving physiotherapy;
(m)     in an entry dated 12 November 2019, Dr Mobilia noted that there had been a case conference with the rehabilitation provider and case manager, and that
Ms Rainbird was awaiting consultation with Dr Howard and struggling with alternative duties. He commented that the left upper limb and thoracic spine were now becoming symptomatic due to unilateral overuse;
(n)   in an entry dated 29 November 2019, Dr Mobilia noted that the patient had been called into the office on 21 November 2019 by the manager and advised that they did not have any suitable duties for her and did not want to be responsible for causing any further injuries to her. He noted that Dr Howard, surgeon, was to organise a spinal CX block;
(o)   In an entry dated 8 January 2020, Dr Mobilia noted that the patient had neck pain “radiation along the upper limb worsening, which was the common progression of discogenic injuries over time, interspersed with small periods of some pain reduction, associated reduced function and insomnia and consequent daytime fatigue”;
(p)   in an entry dated 22 January 2020, Dr Mobilia noted he had requested an MRI of the cervical thoracic spine and Ms Rainbird had worsening lower cervical neck pain associated with cervicogenic headaches which were worsening and radiation along the right shoulder predominantly to the elbow and sometimes to the hand including paraesthesia and significant reduced power in the right hand;
(q)   in an entry dated 12 February 2020, Dr Mobilia noted that he discussed the MRI findings in relation to the cervical spine and recommended further guided imaging and injections. He wrote: “Patient very symptomatic re chronic pain and evolving chronic pain syndrome. Will in some time future require fusion surgery”;
(r)   in an entry dated 13 March 2020, Dr Mobilia noted that he had reviewed the patient and there was a plan re CX spine nerve blocks. He noted this would require referral to Professor Tee, neurosurgeon;
(s)   in an entry dated 22 April 2020, Dr Mobilia noted that pain was worse over the last two weeks and Ms Rainbird had not been able to sleep. He wrote: “Very concerned re patient’s severe level of pain as described above and demonstrated in the rooms”;
(t)    in an entry dated 18 May 2020, Dr Mobilia noted that Ms Rainbird was experiencing increasing left shoulder girdle, upper limb and cervical spinal pain and dysfunction, including nocturnal pain causing insomnia and daytime fatigue. He noted there were cervicogenic headaches, pain, and paraesthesia along the right side neck and upper limb to the fingers, and intermittently similar symptoms along the left side. He wrote: “On review due to increasing pain and disability nil work capacity at present”;
(u)   in an entry dated 27 May 2020, Dr Mobilia noted he had a telephone consultation with James from the insurer who queried why Ms Rainbird’s certification had been downgraded. Dr Mobilia indicated that the “post-natural history of these things with pain patient pain dysfunction both in relation cervical spine and in relation to the shoulder girdle is worsening” [sic];
(v)   in an entry dated 3 July 2020, Dr Mobilia stated that there were a number of issues with Dr Wallace’s report and unfortunately Dr Wallace’s assessment was inaccurate and did not accord with the patient’s history as she had no preceding history of cervical spine or shoulder girdle complaints or injuries. He stated she had been a longstanding patient at this clinic and had been involved in heavy manual work involving long periods of industrial sewing dealing with heavy canvas materials by pushing and pulling and sitting in a flexed neck position for long periods of time. He commented that if she had pre‑existing problems they would have emerged almost immediately after working, and not some three and a half years later;
(w)     in an entry dated 6 July 2020, Dr Mobilia reviewed his earlier notes including a reference to increasing left shoulder girdle pain in May 2020 and increasing cervical spine and pain and dysfunction including nocturnal pain causing insomnia and daytime fatigue, cervicogenic headaches, pain, and paraesthesia along the right side of the neck and upper limb into the fingers, and intermittently similar symptoms along the left side. Dr Mobilia reviewed the report of Dr Wallace, who saw Ms Rainbird on 28 May 2020. Dr Mobilia noted the consultation lasted no more than 25 minutes and in addition Dr Wallace did not ring him. Dr Mobilia commented that there was no rational alternative explanation provided as to why a 47 year old female would have the injuries, aside from engaging in heavy repetitive manual work, and there was no other plausible history. Dr Mobilia noted that the patient would be referred to Professor Tee, a spinal neurosurgeon, and it was imperative she receive appropriate treatment otherwise delay would cause more injury impairment and delay any potential return to work prospects.
In a SIRA medical certificate dated 9 April 2021, Dr Mobilia certified Ms Rainbird as having no current work capacity for any employment from 4 April 2021 to 6 May 2021.
In a SIRA medical certificate dated 7 May 2021, Dr Mobilia certified Ms Rainbird as having no current work capacity for any employment from 7 May 2021 to 4 June 2021.
In a SIRA medical certificate dated 4 June 2021, Dr Mobilia certified Ms Rainbird as having no current work capacity for any employment from 4 June 2021 to 2 July 2021.
In a SIRA medical certificate dated 2 July 2021, Dr Mobilia certified Ms Rainbird as having no current work capacity for any employment from 2 July 2021 to 30 July 2021. He noted that on 2 July 2001 there was increased pain.
In a SIRA medical certificate dated 2 August 2021, Dr Mobilia certified Ms Rainbird as having no current work capacity for any employment from 2 August 2021 to 30 August 2021. He wrote:
“2/8/21 – patient continues to be extremely symptomatic. Has consulted Professor Tee, confirms the diagnosis and the causative history. The patient had undergone diagnostic/nerve blocks to the cervical spine at 2 levels and has obtained relief in accordance with the above. There is both a discogenic component was substantial in this injured worker’s injuries and there is also bilateral shoulder girdle pathology and injuries which are symptomatic, thoracic and lumbar spine is also symptomatic and will require attention in due course. Concentration is on the main symptomatic area at present. It should be recall this injured worker was undertaking heavy industrial sewing and lifting of canvas in the construction and repair of caravan internal fittings as outlined above in a repetitive nature every day of employment.
In addition, due to the chronic pain the decreased functioning nocturnal pain inability to sleep due to pain and due to basically a chronic pain syndrome, the patient significantly affected and accordingly the patient has been referred to Dr Sowden and accordingly it is absolutely essential that this treatment from a psychological perspective continue.
The patient is experiencing significant due to the delays which are completely unnecessary and have no basis in providing appropriate treatment and recognition of the patient’s injuries. This is a straightforward case of work‑related injuries in a person that is probably young with no preceding history undertaking repetitive heavy manual work. The insurer is attempting to avoid liability using a report that has significant errors in both fact, clinical findings, and in contrast to the radiological findings to most part. The insurer following this erroneous report had accepted liability for the left shoulder girdle and the lumbar spine but more recently denied liability completely despite even the erroneous report from the doctor that were side by the insurer. The ongoing delay is producing a very poor outcome for this patient. In addition, she is gaining weight due to the reduced mobility and functioning[sic].”

Discussion

The parties reached an agreement in the conciliation on 7 September 2021 that 80% of the pre-injury average weekly earnings (PIAWE) was $1,014.25. Ms Rainbird discontinued the claim for medical expenses.
Assessment of Ms Rainbird’s capacity for work since 16 April 2021 requires consideration as to whether she has “a current work capacity” or has “no current capacity” as defined by s 32A of the 1987 Act:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment either in the worker’s pre-injury employment or in suitable employment”
Suitable employment’ is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) Having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place or residence.”
Section 33 provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
The assessment of whether there is a current work capacity or no current work capacity must be made before proceeding to do a determination under s 36 and s 37 of the 1987 Act (Deputy President Roche in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) at [49]). At [66-67] Deputy President Roche said:
“If there is a current work capacity, that is relevant to calculating ‘E’ (the amount to be taken into account as the worker’s earnings after the injury, where the worker is not employed), which is then used in the equations in ss 36(2) and 37(2) and (3). If there is no current work, one looks to s 36(1) or s 37(1), depending on whether the claim is in the first or second entitlement period.”
Thus, the words ‘the amount the worker is able to earn in suitable employment’ in s 35 are not relevant to the preliminary question of whether a worker has a current work capacity. They are, however, relevant to determining the amount to be taken into account as the worker’s earnings after the injury where he or she is not employed. In assessing that amount, the reference to ‘the amount the worker is able to earn in suitable employment’ is a reference to the amount the worker is able to earn in suitable employment, as that term is defined in s 32A”.
Counsel for Ms Rainbird argued that she had no current work capacity.
I accept after Ms Rainbird reported the injury on 9 April 2019 and had two weeks off work before returning to work restricted hours on suitable duties. Ms Rainbird ceased work for the respondent on 21 November 2019 when she was called into the manager’s office and advised that there were no more suitable duties available for her.
The first matter to determine is whether Ms Rainbird had any current work capacity from 16 April 2021 to date.
The SIRA Medical Certificates of Capacity issued since April 2021 by the applicant’s general treating doctor, Dr Mobilia, certified Ms Rainbird as having no current work capacity for any employment.
In a report dated 22 August 2020, Dr Sheehy made a diagnosis of compression of both C6 nerve roots in the cervical spine and a soft tissue injury in both shoulders. Dr Sheehy considered that Ms Rainbird was totally unfit for her pre‑injury work and required to be off work, be reviewed by a neurosurgeon and have the C6 nerve roots decompressed in view of the significant axial pain. In terms of the restrictions to be placed on Ms Rainbird’s capacity for work on the open labour market, Dr Sheehy concluded that she was unfit for work at the present.
In his report dated 25 November 2020, Associate Professor Tee, treating Neurosurgeon, noted Ms Rainbird had been referred to him to work out why she had such bad bilateral cervical brachialgia. He considered that Ms Rainbird likely had polyradiculopathy of both the C4 and C6 nerves noting that her MRI showed C4/5 and C5/6 foraminal stenosis bilaterally. Associate Professor Tee was of the view that there were also elements of cord indentation and Ms Rainbird had some evidence of Lhermitte’s phenomenon especially when she extended her neck and her pain shoots down both areas to her deltoid, which showed C5 irritation. He noted that she got tingling that went down to her C6 dermatome.
Associate Professor Tee reported that Ms Rainbird got discomfort all the time and she found it very disabling. He noted that although she was still able to perform her personal activities of daily living, it was done every day with discomfort and this affected her. He was certain that there was a mental fatigue component to the constant neurological dysfunction. Associate Professor Tee requested that bilateral C5 and C6 nerve root injections be performed as soon as possible to ascertain what part of the pain was from her shoulders and what part is from the cervical spine. He was hopeful that these injections could give her good quality of life with posture remodelling and augmentation and avoid surgical intervention.

In his report dated 22 January 2020, Dr Howard stated that the last time he saw Ms Rainbird, she continued to complain of bilateral upper limb pain. He noted that on the last time he saw her she certainly was not in a position to return to work. In a report dated 19 February 2020, Dr Howard stated that he had reviewed Ms Rainbird on 18 February 2020, and that the AC joint injection had some effect, but she continued to have pain around her shoulder, including around the left shoulder. He noted the MRI scan of the cervical spine showed bilateral C6 compression much worse on the right than the left. He stated it was reasonable to offer a perineural nerve root injection on both sides to see if the pain could settle.
Counsel for the respondent submitted that in relation to the question of capacity for work
I should prefer the views expressed in the reports of Dr Giblin and Dr Wallace to the views expressed by Dr Sheehy and Dr Mobilia.
In a report dated 23 February 2021, Dr Giblin made a diagnosis of soft tissue injury in the course of her employment involving the neck and right shoulder. Although Dr Giblin referred to the MRI of the cervical spine undertaken on 7 February 2020, he made a diagnosis of a soft tissue injury in the neck and right shoulder and did not make any diagnosis of bilateral C6 compression.
In a supplementary report dated 4 May 2021, Dr Giblin noted Ms Rainbird reported persisting symptoms, primarily in the neck and shoulders and to her low back radiating towards her hips. Dr Giblin noted that the findings on physical examination were largely unchanged from the previous time. He noted that the active range of motion of her cervical spine remained restricted, asymmetrical and there was ongoing restriction of active movement primarily of her right upper extremity. He reported that there was no change in the overall physical examination of her lower back and lower extremities.
Dr Giblin considered that Ms Rainbird was unfit for repetitive prolonged usage of her upper extremities or axial skeleton. He was of the view that Ms Rainbird was fit for a sedentary work environment, avoiding the aforementioned physical restrictions and one in which she can change her body habitus at will. Dr Giblin added that her ongoing incapacity would “chamfer her work opportunities in the open labour market, not only by virtue of the deterioration of her injuries, but also the increased capacity for further material aggravation from innocuous physical events”. Again, Dr Giblin made no reference to any compression of the C6 nerve roots in the cervical spine or to the possible need to have the C6 nerve roots decompressed in view of significant axial pain.
Dr Wallace, in a report dated 4 June 2020, made a diagnosis of a spontaneous onset of cervical spinal pain on 9 April 2019 with pre‑existing multi‑level degenerative cervical spondylosis, which was non‑work related, and irritative right C6 radiculopathy secondary to degenerative cervical spondylosis, which was non‑work related.
In a report dated 10 February 2021, Dr Wallace noted that Ms Rainbird claimed to have noted the onset of thoraco-lumbar spinal pain in August 2020, some nine months after she ceased work. He reported that present complaints included a constant aching pain at C5, C6 and C7 spinus processes relating to the left scapular spine and the superior border of the right trapezius muscle with no radiation to the shoulders or arms. He noted Ms Rainbird reported intermittent paraesthesia and numbness of the lateral aspect of her left arm to the level of the elbow and complained of weakness at her upper limbs and stiffness at her cervical spine. Dr Wallace reported that at the lumbar spine she noted intermittent aching pain at the left paralumbar region at L4 radiating to the right posterior superior iliac crest and the lateral aspect of her right hip. Dr Wallace noted Ms Rainbird had remained off work since November 2019. He reported that at home she had no difficulty dressing herself, but her sleep was disturbed every night by ongoing pain. He noted she was able to drive a motor vehicle.
Dr Wallace made a diagnosis of spontaneous onset of cervical spine pain on 9 April 2019, pre‑existing multi‑level degenerative cervical spondylosis, which was non‑work related, and irritative right C6 radiculopathy secondary to degenerative cervical spondylosis, which was non‑work related. Dr Wallace concluded there was no objective medical evidence that Ms Rainbird suffered any work‑related injury at her thoraco‑lumbar spine, noting that the onset of thoraco‑lumbar symptoms occurred in August 2020, some nine months after she ceased employment with the respondent. He noted that since his last review Ms Rainbird had continued with intermittent use of physiotherapy and medications of Lyrica, Tramadol and Panadol.
Dr Wallace concluded that Ms Rainbird had no current incapacity as a result of any work‑related conditions at her spine or bilateral shoulders. He expressed the view that Ms Rainbird would not be fit for activities involving repetitive bending or twisting movements at her cervical or thoraco‑lumbar spine, sitting or standing in one position for prolonged periods, or repetitive lifting above 5kg. He considered that Ms Rainbird was currently fit to return to work at full time light duties with due consideration given to restrictions on her activities detailed above.
Dr Wallace was asked whether Ms Rainbird had a capacity to work in alternative employment generally, and specifically as a receptionist, administration assistant or customer service representative, either part time or full time. Dr Wallace replied:
“Ms Rainbird would be fit to work currently in alternative employment as a receptionist, administration assistant or customer service representative on a full‑time basis with due consideration given to the restrictions on her activities detailed above.”
There were a number of issues raised by Ms Rainbird in relation to Dr Wallace’s report:
(a)   first, Ms Rainbird noted that Dr Wallace incorrectly reported that her back pain first occurred in August 2020 some nine months after she ceased work.
Ms Rainbird, in her statement dated 24 April 2021, said that she reported her back pain to Dr Mobilia in April 2019 and was sent for a scan of her back. The clinical notes of Dr Mobilia confirmed that he requested imaging of the thoraco-lumbar spine on 18 April 2019 and entries on 13 May 2019 by Dr Corbett and on 8 May 2019 by Dr Mobilia referred to thoracic and lumbar pain;
(b)   second, Ms Rainbird noted that Dr Wallace incorrectly reported that she had no treatment for her back injury. In her statement dated 24 April 2021, Ms Rainbird said that she had been referred for physiotherapy from Back on Track Physiotherapy. In Dr Mobilia’s clinical notes reference was made to a delay in physiotherapy commencing on 27 May 2019 and on 25 June 2019 a reference was made to physiotherapy continuing;
(c)   third, under “Past History” Dr Wallace noted that there was no further history of injury or “episodes” of pain in the spine or shoulders since May 2020.
Ms Rainbird in her statement dated 24 April 2021 stated that this was incorrect and she had constant pain in these body parts since May 2020. In an entry in his clinical notes dated 6 July 2020, Dr Mobilia reviewed his earlier notes including a reference to increasing left shoulder girdle pain in May 2020 and increasing cervical spine and pain and dysfunction including nocturnal pain causing insomnia and daytime fatigue, cervicogenic headaches, pain, and paraesthesia along the right side of the neck and upper limb into the fingers, and intermittently similar symptoms along the left side. Dr Howard on 10 December 2020, reported that Ms Rainbird said she had been experiencing quite marked left shoulder pain for some time which extended down her arm and was fairly constant;
(d)   fourth, under “Present Complaints” Dr Wallace said that Ms Rainbird had no radiating pain into her shoulders and arms. Ms Rainbird in her statement dated 24 April 2021 stated that this was incorrect and she had radiating pain into her shoulders and arms. Dr Mobilia on 6 July 2020 noted increasing left shoulder girdle pain in May 2020 and increasing cervical spine pain and dysfunction including pain and paraesthesia along the right side of the neck and upper limb into the fingers, and intermittently similar symptoms along the left side.
Dr Howard, on 10 December 2020, reported that Ms Rainbird said she had been experiencing quite marked left shoulder pain for some time which extended down her arm and was fairly constant. Dr Sheehy on 22 August 2020 reported that Ms Rainbird complained of neck pain with bilateral shoulder pain and pins and needles radiating at times into the right arm and affecting the ring and middle fingers of the right hand. He noted she also complained of pins and needles affecting the left hand as far as the elbow, but with no involvement of the fingers with the symptoms, and
(e)   fifth, Dr Wallace reported that Ms Rainbird had no difficulty dressing herself and could drive a motor vehicle. Ms Rainbird in her statement dated 24 April 2021 stated that this was incorrect as she had difficulties dressing when lifting her arms above her head and although she could drive a motor vehicle she had difficulties because she struggled to turn her head left and right. Dr Giblin, in his report dated 23 February 2021, noted that Ms Rainbird had moderate problems in terms of her daily personal activities and when she drove a car she had difficulties reversing and lane changing.
As a result of these issues with Dr Wallace’s report, I have placed less weight on his opinion as to Ms Rainbird’s capacity for work. He has not correctly recorded the symptoms that she has and which, in my view, significantly impact of her capacity for work.
Counsel for the respondent argued that less weight should be placed on Dr Mobilia’s opinion as to capacity for work as he was partisan in his views. I accept that Dr Mobilia expressed his concerns about Ms Rainbird’s work injuries and, in particular, the delays related to obtaining necessary treatment for her work injuries. However, Dr Mobilia had the advantage of seeing Ms Rainbird very frequently and, in my view, was in the best position to assess her capacity to work.
Both Dr Giblin and Dr Wallace did not seem to take into account the level of pain experienced by Ms Rainbird. In a report dated 5 July 2021, Dr Mobilia noted that Ms Rainbird presented as being in extreme pain such that she was in tears, which prompted concern on his part in relation to her personal safety. Dr Mobilia stated there should be no delay in implementing recommendations and delays in treatment would impede Ms Rainbird’s rehabilitation potential and might render her treatment resistant and permanently disabled. In his clinical notes dated 12 February 2020, Dr Mobilia noted that Ms Rainbird was very symptomatic “re chronic pain and evolving chronic pain syndrome”. In his notes dated 18 May 2020 Dr Mobilia noted Ms Rainbird was experiencing increasing left shoulder girdle upper limb and cervical spinal pain dysfunction including nocturnal pain causing insomnia and daytime fatigue. In the SIRA Medical Certificate dated 2 August 2021, Dr Mobilia noted there was inability to sleep due to pain and due to basically a chronic pain syndrome.
While in her statement dated 16 November 2020 Ms Rainbird did not specifically address her capacity for work, she said she had frequent pain in the neck and both shoulders which varied on a day to day basis. She stated that she got pins and needles which radiated down her right arm affecting several fingers in the right hand. She said that she had pins and needles in the left arm down to the elbow. Ms Rainbird stated that she got some pain in her lower back and also the thoracic spine. She said that she could not lift more than 5 kg in each arm. She said that the quality of her sleep was affected and she sometimes woke up in pain and had pins and needles. She said that she could not lift her arms above her head and had difficulty with tasks such as putting on a sweater or hanging out washing.
In her statement dated 21 April 2021, Ms Rainbird said that Dr Howard had offered to perform a right shoulder debridement procedure as he thought that there was some damage to the shoulder but liability for this procedure was denied by the insurer. She stated that in November 2020 she subsequently saw Associate Professor Tee, who recommended nerve root injections to ascertain what part of the pain was from her shoulder and what part was from the neck. She said that she had not been able to have these injections as EML had declined liability for my injuries.
In the SIRA Medical Certificate dated 2 August 2021, Dr Mobilia reported that Ms Rainbird had undergone diagnostic/nerve blocks to the cervical spine at two levels and has obtained relief. However, these nerve blocks appear to only have been recently administered and it will take some time to determine whether they have any long term effect. I note that the earlier nerve block administered in about April 2020 only provided relief for about a three month period.
I have considered the evidence before the Commission relevant to Ms Rainbird’s capacity for work since 16 April 2021 and counsels’ submissions. Dr Mobilia certified Ms Rainbird as having no work capacity during this period. Dr Sheehy expressed the opinion that Ms Rainbird was unfit for work on 22 August 2020 when he made various treatment recommendations. Dr Howard expressed the opinion that Ms Rainbird was not in a position to return to work on 22 January 2020. Dr Giblin and Dr Wallace considered that Ms Rainbird was fit for suitable duties in their reports dated 4 May 2021 and 10 February 2021 respectively.
On balance, I accept that Ms Rainbird had no current capacity for work from 16 April 2021 to date. I prefer the opinions of Dr Mobilia, Dr Sheehy and Dr Howard to those of Dr Wallace and Dr Giblin in relation to the issue of capacity to work. Dr Sheehy is a neurosurgeon and better placed to assess the extent of the injury to the cervical spine and the treatment required than either Dr Wallace or Dr Giblin, who are both orthopaedic surgeons. I accept that Dr Wallace and Dr Giblin provided more recent opinions than those provided by Dr Sheehy and Dr Howard, but the evidence does not suggest that there has been any improvement in Ms Rainbird’s condition since the reports from Dr Sheehy and Dr Howard, and indeed possibly looking at Dr Mobilia’s clinical notes and certificates there has been a deterioration in her condition and an increase in pain until the recent nerve root blocks.

Entitlement to weekly benefits

It was agreed between the parties that 80% of Ms Rainbird’s PIAWE was $1,014.25.
On balance I am satisfied that Ms Rainbird had no work capacity since 16 April 2021 to date.
Therefore, from 16 April 2021 to date and continuing Ms Rainbird is entitled to receive payments pursuant to s 37 of the 1987 Act of $1,014.25.
There will be an award of weekly payments of compensation to Ms Rainbird as folIows:
(a) $1,014.25 per week from 16 April 2021 to date and continuing pursuant to s 37 (1) of the 1987 Act.

[2021] NSWPIC 360

20 September 2021