Ralevski v Hanson Construction Materials Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ralevski v Hanson Construction Materials Pty Limited [2023] NSWPIC 71
APPLICANT:	Vasko Ralevski
RESPONDENT:	Hanson Construction Materials Pty Limited
Member:	Rachel Homan
DATE OF DECISION:	24 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; accepted shoulder injury; whether consequential cervical spine condition; shoulder injury required multiple surgeries; wearing of a sling following surgeries; applicant says weight of immobilised limb rested on his neck and caused awkward neck positioning; degenerative pathology at the cervical spine; failure to explain causal relationship by applicant’s expert; consideration of the totality of the evidence; Held – applicant sustained a consequential condition at the cervical spine; matter remitted for referral to a Medical Assessor to assess the degree of permanent impairment.
determinations made:	1. The applicant sustained a consequential condition at his cervical spine as a result of the injury on 16 October 2019. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 16 October 2019. Body parts:left upper extremity (shoulder) – personal injury; scarring (TEMSKI) – consequential condition, and cervical spine – consequential condition. Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents, and c. documents attached to Application to Admit Late Documents lodged by the respondent on 20 December 2022.

STATEMENT OF REASONS

BACKGROUND

Mr Vasko Ralevski (the applicant) was employed by Hanson Construction Materials Pty Limited (the respondent) as a concrete truck driver.
On 16 October 2019, the applicant tripped over a water hose at the respondent’s depot. Liability for an injury to the applicant’s left shoulder in that event was accepted by the respondent’s insurer.
On 20 April 2022, the applicant’s solicitors forwarded a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), in reliance on an assessment of whole person impairment (WPI) made by Dr Eugene Gehr, dated
13 April 2022. Dr Gehr made an assessment of 22% WPI of the left shoulder, skin (scarring) and cervical spine resulting from the injury on 16 October 2019.
On 23 June 2022, the respondent declined liability for an injury to the applicant’s cervical spine, and in the alternative, a consequential condition at the cervical spine, in a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The present proceedings were commenced by the applicant by an Application to Resolve a Dispute (ARD), lodged in the Personal Injury Commission (Commission) on
7 November 2022. The applicant seeks lump sum compensation in accordance with
Dr Gehr’s assessment.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing in Sydney on
30 January 2023. The applicant was represented by Ms Eraine Grotte of counsel, instructed by Ms Allanah Giuttari. The respondent was represented by Mr Allen Parker of counsel, instructed by Ms Robyn Hickie. A representative from the insurer was also present.
At the commencement of the arbitration hearing, submissions were heard from both parties in respect of an Application to Admit Late Documents lodged by the respondent on
20 December 2022. A direction was made pursuant to r 67(4) of the Personal Injury Commission Rules 2021 admitting the document attached to the application in the proceedings.
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:
(a) whether the applicant sustained a consequential condition at his cervical spine as a result of the injury to the left shoulder on 16 October 2019, and
(b) the degree of permanent impairment resulting from the injury on
16 October 2019.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    document attached to an Application to Admit Late Documents lodged by the respondent on 20 December 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 26 October 2022.
The applicant described the event on 16 October 2019. The applicant was walking to the front of his truck when he tripped over a water hose laying on the ground. The applicant fell and landed on top of his left shoulder and left knee. The applicant described immediate pain in his left shoulder.
The applicant was initially seen by general practitioner, Dr Krishnakumar Sellathurai, who referred the applicant for an X-ray and ultrasound at his left shoulder. The radiological investigations confirmed the presence of a full thickness tear of the supraspinatus tendon with retraction.
The applicant was referred to orthopaedic surgeon, Dr Christopher Reitz. Dr Reitz referred the applicant for physiotherapy.
Although the applicant returned to work on light duties, he was still experiencing pain in his left shoulder. In February 2020, Dr Reitz recommended the applicant undergo a left shoulder arthroscopy, decompression and rotator cuff repair. The surgery was performed on
10 March 2020, following which the applicant was placed in a sling for six weeks.
The applicant continued to experience stiffness in his shoulder and, at a review on
5 June 2020, it was discovered that one of the rotator cuff fixation devices had failed and come loose. Dr Reitz performed revision surgery on 16 June 2020. Following that surgery, the applicant was placed in a sling for eight weeks and referred to attend physiotherapy.
The applicant stated:
“Approximately 2 weeks after my revision surgery I began to feel pain in my neck. I confirm this was the first time I had experienced any pain in this area following my injury on 16 October 2019. I first noticed the pain when attempting to turn my neck. It hurt to move my neck and the area was tender to touch. I recall mentioning the pain to Dr Reitz at one of my early post-operative check-ups, however he just told me at the time to release my arm from my sling every now and then while sitting down to give my neck a rest. He advised the pain in my neck was likely to disappear when I was no longer required to wear a sling.
The pain in my neck was mainly localized to the right side, where the strap for my sling would rest. I was required to wear a sling for 6 weeks after my first surgery, and for
8 weeks after my second surgery. The strap would hold the entire weight of my left arm, which then rested on the right side of my neck. I believe that wearing the sling put extra pressure on my neck and made me hold my neck in an awkward position to accommodate the extra weight.”
On 3 September 2020, Dr Reitz referred the applicant for an MRI of the cervical spine, which was performed on 15 September 2020. On receiving the MRI results, Dr Reitz suggested that the applicant had a degenerative condition at the cervical spine which had been aggravated after the left shoulder revision surgery.
The applicant continued to feel severe pain in his neck, even after he was no longer required to wear a sling. The applicant attended physiotherapy, used heat packs and a good pillow at night time. The applicant was prescribed diazepam for his pain.
An ultrasound of the left shoulder performed on 11 January 2021 showed a re-tear of the supraspinatus tendon. It was discovered that at least two metal anchors had dislodged in the subacromial space. The applicant underwent a third surgery to the left shoulder on
19 April 2021 performed by Dr Allan Young. The applicant’s arm was once again placed in a sling but only for one week.
The applicant described severe pain on the right side of his neck, which had not improved, since the second shoulder surgery. The applicant’s neck was also stiff. Prior to the onset of pain approximately two weeks after the second shoulder surgery, the applicant had never suffered an injury to his neck or experienced any pain in his neck.

Treating evidence

A clinical note made by general practitioner, Dr Krishnakumar Sellathurai on
16 October 2019 recorded:
“Tripped on a hose in the yard and landed heavily on Lt shoulder and injured Lt knee, Pt Rx himself with Ice and workmate applied a dressing to Lt knee wound,. C/o pain -It shoulder and poor rom. Past Hx-nil”
Dr Sellathurai’s notes indicate that the applicant was referred for an x-ray and ultrasound of the left shoulder. On 24 October 2019, a registered nurse at the same practice recorded:
“collar and cuff sling applied@ L arm as per dr's order as per pt consent”
Dr Sellathurai’s notes then record that the applicant was referred to orthopaedic surgeon,
Dr Reitz, and was undergoing physiotherapy.
On 12 March 2020, it was noted that the applicant had undergone left shoulder surgery and was wearing a sling.
On 18 June 2020, Dr Sellathurai noted that the applicant had undergone a second surgical procedure to the left shoulder and was once again in a sling.
In a report of the same date, Dr Reitz reported on the surgery and stated,
“He will remain in the sling for the next 6 weeks and can only come out for some gentle elbow and wrist range of motion exercises.”
On 20 September 2020, Dr Reitz prepared a report for Dr Sellathurai reporting on the applicant’s progress following the left shoulder revision cuff repair:
“While I am happy to report that the pain in his shoulder has markedly improved since I last saw him, there is elevation possible to 90º with a strong supraspinatus tendon, predominantly he is being trouble currently due to ongoing pain in his cervical spine with associated numbness along his ulnar nerve distribution. As this is an ongoing problem to further investigate this I have referred Vasko for a cervical spine MRI scan.”
Dr Reitz referred the applicant to physiotherapy in relation to his cervical spine, noted to have been aggravated from a recent left shoulder surgery, in a letter dated 24 September 2020.
On 29 September 2020, Dr Sellathurai recorded:
“Neck pain -says since wearing the sling.
No impt after removing it.
Seen dr Reitz,and has had MRI.
Having physio-Felt worse after he attended and feels better without Rx-Has been adv to Lay off physio.
Dr reitz has adv him to get a new special pillow From insurance.”
In a letter to Dr Sellathurai, dated 1 October 2020, Dr Reitz reported:
“As you know I referred him for an MRI scan to further investigate his ongoing cervical spine pain and referred pain into his left arm. The MRI scan revealed degenerative spondylosis with foraminal stenosis at the level of C5/6, C6/7 with nerve root impingement encroaching onto the C6, C7 and C4 nerves which would be in keeping with his described pain in his left arm. Since I saw him last the pain has markedly improved. Elevation now is also possible to 60º and he feels stronger. As he seems to be improving I don't think anything at the moment in particular is needed here. He knows that I would hold off an injection into the cervical spine at the moment and only trial this should he have a setback here. I have given him a referral for a neck pillow to improve his posture.”
On 13 January 2021, Dr Sellathurai recorded:
“pt is continuing to be troubled with rt neck Pain since his original injury.
The pain has been overshadowed by his It rotataor cuff pathology.
apparently he has had a MRI of his neck- but I cant locate the results on my notes. Counselled And adv pt to bring the Mri report for perusal.
Examination: Tender-rt upper lateral Rt ex paraspinal musckles.
Rom -satisfactory but pain at extremes.
counselled-Hot packs.Good pillow.review.”
On 14 January 2021, Dr Sellathurai noted:
“MRi- Cx spine- Confirms facet Jt arthropathy. Pt claims all pain started after His Fall & had Nothing Before. Physio has not helped his neck pain. ? Spasm.”
Dr Sellathurai prepared a report for the applicant’s solicitors on 27 July 2022. Dr Sellathurai noted the applicant’s main injury and complaint was his left shoulder but apparently after the second shoulder surgery, he developed quite severe pain involving his right upper cervical paraspinal region. The applicant attributed the pain to the sling he was wearing and had mentioned this to Dr Reitz. The applicant had an MRI of his cervical spine which favoured a soft tissue pathology and the applicant was managed conservatively.
In a further report for the applicant’s solicitors, dated 10 October 2022, Dr Sellathurai noted that the applicant underwent a second surgical procedure to his left shoulder on
16 June 2020. Dr Sellathurai commented:
“He claims after this procedure he was placed in a sling & thereafter developed Rt sided neck pain. During his routine post operative check up x6 weeks later he had mentioned about his rt sided neck pain. Dr Reitz attributed this to be most likely due to the sling and had mentioned that it should disappear after a further 2 weeks of his shoulder being in the sling. Unfortunately his Rt sided Neck pain had continued and
Dr reitz had referred him for a MRI of his cervical spine. MRI Report –
1)Cervical Spondylosis
2)No high grade central spinal stenosis/No Cord compression/Impingement.
3)Foraminal Narrowing It side C2-3, C6-7 & potential impingement on Rt C3 & C7 nerves.
He has worked as a truck driver x22yrs & denies having a whiplash type injury or any motor vehicle accidents in the past. As such I presume his neck pain is most likely related to his pre existing cervical spondylosis with acute exacerbation after placing his Lt shoulder in a sling after surgery.”
Dr Reitz prepared a report for the applicant’s solicitors on 28 July 2022. Dr Reitz described his treatment of the applicant’s left shoulder injury and reported:
“During examination on 3.9.2020 some new left arm numbness in an ulnar distribution was noted with some ongoing pain in the paraspinal region and Mr Ralevski was referred for an MRI scan of the cervical spine which was performed on 15.9.2020. The MRI scan revealed degenerative spondylosis at multiple levels with mild foraminal narrowing at the C5/6, C6/7 as well as C3/4 levels with mild impingement on the emerging left C6, C7 and C4 nerves. There was further narrowing also on the right side of his neck noted at the C2/C3 and C6/C7 levels causing impingement on the right C3 and C7 nerves and to a milder degree at the C3/4 level. These findings were discussed and improvement of his cervical spine symptoms were noted on the 24.9.2020 with no further neuropathy. At this stage an injection of the cervical spine was discussed but was put on hold as his symptoms had improved.”
Dr Reitz commented that the findings at the applicant’s cervical spine were degenerative in nature and had been aggravated post-operatively after the left shoulder cuff revision surgery on 16 June 2020.

Dr Gehr

The applicant relies on a medico-legal report prepared by orthopaedic surgeon,
Dr Eugene Gehr, dated 13 April 2022.
Dr Gehr reviewed the treating medical evidence provided to him, including an MRI of the cervical spine dated 15 September 2020. Dr Gehr noted that the applicant reported no previous problems with his cervical spine.
The applicant reported pain over the right posterior lateral aspect of his neck since after the second operation to his left shoulder. The applicant reported stiffness over his left shoulder and cervical spine.
On physical examination of the cervical spine, Dr Gehr noted tenderness over the right posterior lateral aspect of the neck, guarding, dysmetria and reduced range of movement.
Dr Gehr diagnosed a cervical spine soft tissue injury with pain, guarding and dysmetria and made an assessment that included 5% WPI of the cervical spine and 3% WPI for activities of daily living.

Dr Wallace

The respondent relies on medico-legal reports prepared by orthopaedic surgeon,
Dr Raymond Wallace, dated 30 May 2022 and 19 December 2022.
In his first report, Dr Wallace took a history of the left shoulder injury and noted that after the revision rotator cuff repair on 16 June 2020, the applicant’s “left thumb” was immobilised in a sling for some eight weeks, during which time the applicant noted the onset of neck pain. The applicant reported no previous history of injury at his neck.
The applicant reported intermittent aching pain at the right paracervical region at C5/6/7 accompanied by stiffness at his cervical spine.
Clinical examination showed reduced range of movement and tenderness at the right paracervical region at C5/6.
Dr Wallace reviewed the MRI investigation of the cervical spine dated 15 September 2020.
Dr Wallace diagnosed a work injury to the left shoulder as well as a soft tissue injury at the left knee, which had now resolved. With regard to the cervical spine, Dr Wallace commented:
“There is no objective medical evidence that Mr Ralevski suffered any work-related injury at his cervical spine. He did not note the onset of cervical spinal symptoms until June 2020 some eight months post-injury. He underwent MRI investigation of the cervical spine in September 2020 which showed evidence of significant multilevel degenerative cervical spondylosis which is constitutional in origin and unrelated to his employment with Hanson Construction Materials Pty Ltd. His employment with Hanson Construction Materials Pty Ltd is not a substantial contributing factor to any current cervical spinal condition.”
In the supplementary report of 19 December 2022, Dr Wallace was asked whether the applicant’s neck symptoms should be classified as a “consequential neck injury” resulting from the original left shoulder injury and/or second surgery. Dr Wallace responded:
“Mr Ralevski is currently 68 years of age and underwent MRI investigation of the cervical spine in September 2020 which showed evidence of significant multilevel degenerative cervical spondylosis. His onset of cervical spinal symptoms in mid-2020 was coincidental and entirely unrelated to his left shoulder condition.
There is no objective medical evidence that slinging and immobilisation of an upper limb can lead to aggravation of a pre-existing degenerative cervical spinal condition.
Mr Ralevski was wearing a sling for only eight weeks post-operation, some two years ago.
His cervical spinal condition is entirely due to age-related degenerative cervical spondylosis which is constitutional in origin and unrelated to his employment.
Mr Ralevski would have noted the onset of cervical spinal symptoms at about the same time and same stage of his life had he not been at work or employed by Hanson Construction Materials Pty Ltd or suffered an injury on 16 October 2019 to his left shoulder or undergone multiple surgical procedures.”

Applicant’s submissions

The applicant referred to the relevant authorities, including, Seif v Secretary, Department of Family and Community Services.[1] The applicant submitted that the Commission was required to evaluate the chain of causation, applying a commonsense approach. It was noted that the accepted injury to the applicant’s left shoulder required three surgeries with another surgery anticipated in the future.
[1] [2020] NSWWCCPD 6.
The applicant submitted that, as a result of the injury to his left shoulder, there had been an aggravation of underlying degenerative changes at the applicant’s cervical spine. The applicant said there was no dispute that the 2020 MRI showed degenerative changes.

The applicant referred to his statement evidence regarding the initial surgery to the left shoulder on 10 March 2020 and the revision surgery on 16 June 2020. The applicant was placed in a sling after both procedures. Approximately two weeks after the revision surgery, the applicant began to feel pain in his neck. The pain was mainly localised to the right side where the strap for the sling would rest. The applicant had worn a sling for six weeks after the first surgery and for eight weeks after the second surgery. The applicant expressed the belief that wearing the sling put extra pressure on his neck and made him hold his neck in an awkward position to accommodate the extra weight.
The applicant referred to Moriarty-Baes v Office Works Superstores Pty Ltd[2] and submitted that, unlike the worker in that case, he had provided clear evidence of the causal relationship between his neck symptoms and the left shoulder injury.
[2] [2015] NSWWCCPD 28.
The applicant referred to the treating reports of Dr Reitz, as well as his report for the applicant’s solicitors. Dr Reitz’s evidence was said to be consistent with the clinical notes recorded by Dr Sellathurai. The applicant submitted that there was sufficient evidence of causation on the balance of probabilities in the treating medical evidence, noting the lower threshold required to establish a consequential condition, as opposed to an injury.
The applicant noted that Dr Young did not deal with the applicant’s cervical symptoms.
The applicant observed that Dr Gehr set out a chronology and made an assessment of the degree of permanent impairment. Although Dr Gehr failed to address causation in relation to the applicant’s cervical spine symptoms, the applicant said this was not fatal to the applicant’s case.
The applicant submitted that there appeared to be an unexplained error in Dr Wallace’s report in so far as he referred to the left “thumb” being immobilised in a sling. This error had potentially influenced Dr Wallace’s ultimate opinion. The applicant’s whole, left arm had been placed in a sling for some eight weeks during which time the applicant noted the onset of neck pain.
Dr Wallace recorded findings on examination at the cervical spine and took a history of symptoms that was consistent with the other evidence.
In his first report, Dr Wallace only addressed the possibility of an injury to the cervical spine. Although he was asked about a consequential condition in his second report, Dr Wallace used the language of a consequential “injury” despite it only being necessary for the applicant to establish symptoms and restrictions at the cervical spine. The applicant submitted that in giving the opinion that the onset of neck symptoms was coincidental and unrelated to the left shoulder injury, Dr Wallace had failed to deal with the mechanism. Although Dr Wallace noted the use of a sling, he did not deal with the applicant’s evidence about the sling pulling on his neck with the full weight of his arm and holding his neck in a different way. The applicant submitted that the Commission would not have confidence that Dr Wallace had truly considered the applicant’s explanation.
The applicant submitted that the Commission would accept the evidence of Dr Reitz and
Dr Sellathurai, together with his own evidence, in finding that the relevant causal relationship was established.

Respondent’s submissions

The respondent submitted that there was a lack of evidence as to the mechanical cause of the applicant’s cervical symptoms. In circumstances where there was evidence of a severe degenerative or constitutional condition, the lack of detail was significant. The consequential condition asserted in the present case was unusual and unlike the typical situation where a contralateral limb is overused.
The respondent noted that the evidence established the presence of an underlying condition and the onset of symptoms. The applicant reported there was no improvement in his symptoms after his sling was removed. The respondent submitted that the mere temporal coincidence of symptoms was insufficient to discharge the burden of proof.
The respondent noted that Dr Gehr made a diagnosis of a soft tissue injury with pain, guarding and dysmetria but did not explain how dysmetria could be consequential to the left shoulder injury. Dysmetria appeared to be a neurological condition. Without an explanation, the applicant’s case must fail.
The respondent submitted that Dr Reitz made an assumption about causation based on the timing of the symptoms but had provided no explanation as to the mechanical cause of the symptoms. Dr Reitz gave no explanation as to why the symptoms had failed to improve after the removal of the sling. Dr Reitz simply suggested the applicant’s neck pathology had been aggravated after the surgery. This suggested the surgery itself rather than the use of a sling may have caused the onset of symptoms. No explanation was given as to how the left shoulder surgery would cause a condition to the right cervical spine. The relationship was not obvious.
Dr Wallace noted the applicant’s age and expressed the opinion that the applicant’s neck symptoms were age related and coincidental. Dr Wallace said there was no objective evidence that the use of a sling would lead to the aggravation of a pre-existing condition.
The respondent submitted that Dr Wallace was the only doctor to provide an opinion on causation. The respondent submitted that the Commission would reject Dr Gehr and
Dr Reitz’s reports and prefer the opinion given by Dr Wallace.

Applicant’s submissions in reply

The applicant submitted that Dr Gehr’s reference to dysmetria was a reference to a loss of range of movement on the right in comparison with the left side.
The applicant submitted that he had provided a plausible explanation of the causal relationship between the neck symptoms and the left shoulder injury. Dr Gehr found evidence of pain and guarding. The diagnosis of a soft tissue injury did not undermine the applicant’s case. The applicant claimed there was an aggravation of underlying degenerative changes.
Nor did the lack of improvement in symptoms after removing the sling undermine the applicant’s explanation of the causal mechanism. The aggravation had caused ongoing, permanent symptoms.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
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.”
It is accepted that the applicant sustained an injury for the purposes of s 4 of the 1987 Act to his left shoulder on 16 October 2019. What is in dispute in these proceedings is whether the applicant has sustained a consequential condition at his cervical spine as a result of the injury to his left shoulder.
The test for establishing a consequential condition can be distinguished from that required to establish an “injury”. In this regard, the comments of Deputy President Roche in Moon v Conmah[3] at [45] - [46] are relevant:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[3] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[4] Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[4] [2013] NSWWCCPD 4.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[5] Snell DP referred to the decisions in Moon v Conmah[6] and Kumar v Royal Comfort Bedding[7] and observed:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.”
[5] [2016] NSWWCCPD 23.
[6] [2009] NSWWCCPD 134.
[7] [2012] NSWWCCPD 8.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[8], where Kirby P (as his Honour then was) said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[8] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463] - [464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained a consequential condition affecting his cervical spine. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[9] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[9] [2008] NSWCA 246.
In the present case, the injury to the applicant’s left shoulder is well described in the lay and treating medical evidence.
I am satisfied on the evidence before me that following the injurious event, the applicant came to left shoulder surgery, performed by Dr Reitz, initially on 10 March 2020. The applicant’s evidence is that his left arm was placed in a sling for six weeks following that surgery. The clinical notes from Dr Sellathurai confirm that the applicant wore a sling following the initial surgery. There is also evidence of a collar and cuff sling being applied on 24 October 2019 soon after the initial event.
I also accept on the evidence before me that the applicant underwent a revision surgery to the left shoulder on 16 June 2020. The applicant’s evidence is that he wore a sling for eight weeks after the second surgery. Once again, the wearing of a sling following the second surgery is corroborated by the treating medical evidence.
On 18 June 2020, Dr Sellathurai noted that the applicant was wearing a sling following the second surgery. In a report of the same date, Dr Reitz reported that the applicant would remain in a sling for the next six weeks and should only come out of the sling for some gentle elbow and wrist range of motion exercises.
The treating medical evidence also corroborates the applicant’s claims with regard to the onset of neck symptoms in the period following the second surgery. The applicant says his symptoms first appeared around two weeks after the second surgery. By September 2020, both Dr Reitz and Dr Sellathurai had recorded complaints of ongoing pain in the cervical spine.
There is nothing in the evidence before me to suggest that the applicant experienced or reported symptoms of cervical spine pain prior to the shoulder surgery. Although subsequent radiological investigations confirmed the presence of degenerative pathology, I accept, in the absence of any evidence to the contrary, the applicant’s evidence that his neck had not been symptomatic until after the revision rotator cuff surgery.
The respondent has submitted that the mere temporal coincidence between the surgery and the onset of neck symptoms is not sufficient to establish the relevant causal relationship. I accept this submission. It is necessary for the applicant to demonstrate on the balance of probabilities that the symptoms “resulted from” the left shoulder injury.
In discharging this onus, the applicant’s case rests heavily on his lay evidence and the treating medical evidence. The expert evidence from Dr Gehr is unhelpful in determining the causal relationship between the applicant’s cervical symptoms and the work injury.
The applicant has expressed the view that his neck symptoms were related to the wearing of a sling following the shoulder surgeries. The applicant explained that the strap would hold the entire weight of his left arm, and rest on the right side of his neck. The applicant believed that the sling put extra pressure on his neck and caused him to hold his neck in an awkward position in order to accommodate the extra weight. The applicant explained that he noticed pain when moving his neck and the area to the right of his neck was tender to touch.
Consistently with the applicant’s lay evidence, both Dr Sellathurai and Dr Reitz have recorded that the onset of neck symptoms was associated with the left shoulder surgery and the wearing of a sling.
In a clinical note recorded on 29 September 2020, Dr Sellathurai noted that the applicant had experienced neck pain since wearing the sling and had noted no improvement after removing it. Although there was some indication in a later clinical record that the applicant’s pain may have been present since the original injurious event, Dr Sellathurai, confirmed in his report for the applicant’s solicitors on 27 July 2022 that the symptoms developed following the second shoulder surgery, and were attributed by the applicant to the sling he was wearing.
In his most recent report for the applicant’s solicitors, Dr Sellathurai recorded the history of reported symptoms, the results of the radiological investigations and the recommendations of Dr Reitz. Dr Sellathurai noted that the applicant denied any neck injury in the past.
Dr Sellathurai offered the opinion that the pain was “most likely” related to the pre-existing cervical spondylosis with an acute exacerbation after placing the left shoulder in a sling after surgery.
In his report dated 20 September 2020, Dr Reitz confirmed that the applicant was troubled with ongoing pain in his cervical spine and associated numbness following the second surgery. In a letter of referral for physiotherapy, Dr Reitz suggested that the applicant’s cervical spine had been “aggravated” from the recent surgery.
Dr Reitz ordered a radiological investigation of the cervical spine through an MRI scan. The MRI revealed degenerative pathology, which Dr Reitz said was in keeping with the applicant’s complaints of neck pain. In a report for the applicant’s solicitors, Dr Reitz offered the view that the degenerative pathology at the applicant’s cervical spine had been aggravated after the left shoulder cuff revision surgery on 16 June 2020.
The applicant’s medical evidence has been criticised by the respondent on the grounds that the mechanical cause of the applicant’s cervical symptoms has not been explained. The respondent submitted that Dr Reitz had made an assumption about causation based on the timing of the symptoms without providing an explanation as to how the wearing of a sling had aggravated the applicant’s neck pathology. The respondent also aptly noted the failure to explain the causal relationship in Dr Gehr’s report.
The applicant’s evidence must, however, be considered as a whole. The failure of Dr Reitz, and Dr Gehr to provide a detailed explanation of the causal mechanism is not necessarily fatal to the applicant’s success in this case. The applicant himself has described how he wore the sling and the sensations he experienced in wearing the sling. As indicated above, the applicant has referred to both a feeling of the weight of his left arm being held by his neck, as well as holding his neck in an awkward position to accommodate the sling.
It can be inferred that this explanation has been accepted by the applicant’s doctors, having regard to the history provided to and recorded by them. I accept that this is not made explicitly clear in either Dr Reitz’s or Dr Gehr’s reports. I also accept that these doctors have not provided a clear explanation of the causal mechanism. In Moriarty-Baes, to which the applicant referred in submissions, however, Roche DP observed:
“What is required by way of an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 179 FLR 1 at [631]). However, an expert does not have to ‘offer chapter and verse in support of every opinion’ (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 117 FCR 189 at [89]).
As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich [2005] NSWCA 152 at [170] ‘[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated’. In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports.”

Dr Sellathurai has provided a more explicit opinion that the wearing of the sling most likely caused an acute exacerbation of the degenerative pathology at the applicant’s cervical spine.
Weighing against the applicant’s evidence are the opinions of Dr Wallace. In Dr Wallace’s initial report, his focus was on the question of whether there was an “injury” to the cervical spine in the event on 16 October 2019.
Dr Wallace’s attention was directed to the question of whether a “consequential injury” at the cervical spine had resulted from the left shoulder injury in his second report. Dr Wallace rejected this possibility, attributing the condition entirely to age-related degenerative change.
In doing so, Dr Wallace failed to deal with the applicant’s evidence as to how the wearing of a sling affected his posture and his description of the forces being applied to his neck by the weight of his immobilised limb. Dr Wallace relied heavily on the absence of “objective medical evidence” that slinging and immobilisation can lead to an aggravation of a
pre-existing degenerative cervical spinal condition. Dr Wallace noted that the sling was only worn for eight weeks after the operation.
The language used by Dr Wallace and his reasoning suggest he may have been looking for an acceleration or deterioration in the pathology at the applicant’s cervical spine or some other pathological change at the cervical spine rather than directing his attention to the question of whether the applicant had experienced symptoms and restrictions at his cervical spine as a result of wearing the sling. In giving his opinion, I am not satisfied that Dr Wallace has asked himself the correct legal question. I am also not satisfied that Dr Wallace has taken proper account of the applicant’s particular circumstances.
The applicant has also raised the possibility that Dr Wallace was under the misapprehension that only the left thumb was immobilised. I am not, however, persuaded that the reference to the left thumb in Dr Wallace’s first report was anything other than a typographical error.
In considering the evidence overall, whilst I note that the applicant’s case could have been made much stronger by the expression of a clear explanation of the causal relationship by Dr Gehr, I feel a sense of actual persuasion that symptoms and restrictions at the applicant’s cervical spine have resulted from the left shoulder injury, in particular, the wearing of a sling following the first and second surgeries.
Not only did the onset of symptoms coincide temporally with the wearing of a sling, there is an explanation of the causal mechanism in the applicant’s evidence, which I find receives at least implicit support from the applicant’s treating doctors and Dr Gehr. The opinion of
Dr Wallace as expressed in his second report does not, in my view, outweigh the totality of the evidence presented by the applicant.
I am satisfied that the applicant sustained a consequential condition at the cervical spine as a result of the injury to his left shoulder on 16 October 2019.
It is appropriate, in view of that finding, that there be a referral to a Medical Assessor for assessment of the degree of permanent impairment at the applicant’s left upper extremity (shoulder), skin (scarring) and cervical spine. There will be an order remitting the matter to the President for the purposes of that referral.

[2023] NSWPIC 71

24 February 2023