Sami v Unilever Australia Pty Ltd
[2025] NSWPIC 540
•10 October 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sami v Unilever Australia Pty Ltd [2025] NSWPIC 540 |
| APPLICANT: | Anita Sami |
| RESPONDENT: | Unilever Australia Pty Ltd |
| MEMBER: | Parnel McAdam |
| DATE OF DECISION: | 10 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; consequential condition; whether applicant suffered a consequential condition in her neck as a result of accepted shoulder injury; different onset of date of symptoms reported to different doctors; different mechanisms causing condition; ACQ Pty Ltd v Cook referred to; contradicting medical opinion that neck condition due to degenerative change not accepted; Held – applicant suffered consequential condition in cervical spine; award for medical expenses made. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffers from a consequential condition in her cervical spine as a result of her accepted injury that occurred on 19 February 2021. 2. The respondent pay the applicant’s past medical expenses pursuant to s 60 of the Workers Compensation Act 1987 as set out in the Application to Resolve a Dispute. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Ms Sami was employed by the respondent for around 18 years. She was initially employed as a packer, moving on to a machine operator after a number of years. Her duties, consistent with employment of this nature, were repetitive, and often involved moving of heavy materials.
Ms Sami suffered an injury to her right shoulder in the course of her employment. Liability for this injury was accepted by the respondent. Ms Sami underwent a series of medical interventions in her right shoulder, including investigations, injections, shoulder surgery (on a number of occasions) and regular physiotherapy.
Ms Sami now claims that she has a consequential condition in her neck, as a result of her accepted shoulder injury. The respondent disputes liability for the consequential condition.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant suffers from a consequential condition in her neck, as a result of her accepted right shoulder injury.
The compensation claimed in this case is relatively minor, being some past medical expenses totalling around $1,500. A minor claim for some future treatment is also made. There is no dispute that if I make a finding in favour of the applicant for the consequential condition, the treatment expenses will follow (that is they are to be considered reasonably necessary).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded to conciliation/arbitration on 26 September 2025. The applicant was represented by Mr McManamey of counsel, instructed by Turner Freeman Lawyers. The respondent was represented by Mr Murray of Integroe Partners.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents, and
(c) an Application to Admit Late Documents, lodged by the applicant on 27 August 2025, attaching a large volume of clinical notes (over 1,000 pages). Also attached was a medical chronology. It was agreed that this would be used as an aide memoire only, and also noted that in any event, the page references made in many of the records were incorrect.
Applicant’s statements
The applicant provides three statements in this case. The first is dated 24 January 2024 and sets out the history and background to the shoulder injury.
The second statement is dated 30 September 2024, and records an onset of neck pain about six to eight months after the first shoulder operation that took place on 13 October 2021 (which would place the onset of pain around April-June 2022). The applicant also records that she noticed “more pain” in the neck during exercise physiology. She states that she told doctors about her neck pain but none of them thought much of it.
The third statement is dated 3 July 2025. This statement sets out the ongoing challenges Ms Sami experiences as a result of her neck issues.
Reports of Dr Herald
Dr Herald provides three medicolegal reports for the applicant. He takes a consistent history of shoulder problems and the treatment involved following that injury. In his report of 27 March 2024, he records the onset of neck pain as September 2023, which “her GP deemed” to be caused by “the physiotherapy”. He opines that “she has developed secondary aggravation of an underlying cervical spondylosis”. In his supplementary report of 23 July 2024, Dr Herald opines that her shoulder injury has caused secondary pressure on the cervical spine, resulting in an aggravation of the underlying cervical spondylosis.
Dr Herald’s third report is dated 29 January 2025. He was asked a specific question about whether the nature and conditions of her employment as a packer with the respondent was the main contributing factor to the deterioration of her cervical spine. He opines that she “may have had deterioration over time due to the nature and conditions of her employment”, but that she did not become symptomatic until after her right wrist and shoulder injury, hence the attribution of her neck injury as secondary to the shoulder injury.
Report of Dr Khong
Dr Khong, a neurosurgeon, provides a report dated 5 June 2025. He records that Ms Sami started to develop right sided neck pain in September 2023 (consistent with Dr Herald). His diagnosis is an exacerbation of degenerative changes in the cervical spine caused by altered postures related to the right shoulder injury, subsequent surgeries and extended time in a sling. He acknowledges a potential contribution from the repetitive nature of work over many years.
Reports of Dr Burrow
The respondent relies upon the medicolegal opinion of Dr Burrow, who is an orthopaedic surgeon with subspecialty training in shoulder and knee surgery. He initially provided reports for the respondent in respect of the claimed and accepted shoulder injury. As I observed during the hearing of this dispute, it is not surprising that the respondent continued to obtain reports from Dr Burrow in respect of the claimed neck condition, given Dr Burrow’s familiarity with the case.
Dr Burrow’s first report is dated 16 June 2022. That report concerns the wrist and shoulder symptoms. No history is recorded of neck pain at that point. A further report dated 24 August 2023 again records no relevant history in respect of the cervical spine. Dr Burrow comments that Ms Sami has “atypical, heightened levels of subjective pain”.
Dr Burrow provides a further report dated 26 April 2024 with the injuries including the following “New claimed condition: Cervical spine as a consequence”. The report provides a history of improvement in shoulder pain following surgery, but an increase after a period. He records the following history of the onset of cervical spine symptoms:
“Without trauma, Ms Sami noted increasing neck pain associated with occipital headaches on the right side of the skull over the last 4 months which she reported to her General Practitioner.” (emphasis in original)
This would put the onset of neck pain, according to Dr Burrow’s recorded history, as January 2024, which is inconsistent with other recorded histories. He describes no intervening incidents except the “reportage of atraumatic neck pain”. His opinion is that Ms Sami has “constitutional degenerative changes in the neck which have become symptomatic recently without a specific intervening trauma”.
Dr Burrow provides a further opinion dated 7 March 2025. In that report he comments on the opinion of Dr Herald, noting that the MRI shows predominantly left sided protrusion but the complaints are predominantly right sided. He opines:
“It remains my opinion that any cervical presentation has come on subsequent and unrelated to the index right shoulder condition, and it was several years at least before presentation.”
He also comments that the right shoulder condition has not made a material contribution to the symptoms in the neck “which was unrelated, from a temporal point of view, completely from the index presentation of the right shoulder condition”.
Dr Burrow provides a further report dated 25 June 2025. His diagnosis of the neck is as follows:
“Cervical spine multilevel degenerative changes (arthritis), not temporally related to either the index symptoms in the right shoulder or right wrist, or specifically the surgery performed on both areas, but came on gradually around January 2024, consistent with degenerative disease, with a prominent degenerative C7 disc, particularly on the left side (noting mostly right- sided symptoms).”
He opines that the neck condition is mostly constitutional but there may have been some contribution from the nature and conditions of her employment. He accepts that in extremely stiff shoulder conditions that secondary strains can be placed on an already arthritic cervical spine, but that Ms Sami has maintained generous movement over two to three years of his assessments.
Expert treating reports
There are a number of reports from Ms Sami’s treating team. Dr Shiva, treating neurosurgeon, provides a report dated 31 January 2025. He records that Ms Sami has been experiencing neck pain since 2022, following the shoulder injury at work in 2021. He opines that Ms Sami’s “neck pain is likely related to her shoulder injury and subsequent surgeries”.
He provides a further report dated 13 May 2025. In respect of causation, he opines that the “cervical spine injury is related to the post-shoulder surgery recovery period”. He goes on to explain that it is not uncommon for patients to develop reduced range of motion in the neck following surgery, and the restricted mobility can lead to the development of disc herniations in the recovery period. He also opines that employment is the main contributing factor to the cervical spine injury.
There are a series of reports from A/Prof Viswanathan, who is the applicant’s treating orthopaedic surgeon. These reports detail the treatment in respect of the shoulder.
Dr Bose authors a report dated 14 March 2024. He reports that on 23 February 2024 the applicant “said she had neck pain and stiffness as well as rt shoulder pain and stiffness”. He opines that “her neck pain and stiffness happened due to her long standing rt shoulder pain/stiffness”.
Other clinical notes
The applicant filed a large volume of clinical records produced under the direction for production process. I do not intend to summarise those records here. The parties referred to relevant records in submissions and I will discuss those records below, under findings and reasons. In summary, there are different reports of cervical spine issues in the clinical material relevant to the issue of the time of onset of shoulder pain.
SUBMISSIONS
The parties made oral submissions during the hearing of this dispute, which were recorded. I do not intend to repeat them in great detail here.
The applicant’s primary case is that she suffers from a consequential condition in her neck arising from changed biodynamic as a result of the shoulder injury and surgery to the right shoulder.
The applicant went through the three statements provided by Ms Sami. The first statement focuses on the shoulder history. The second statement refers to neck symptoms starting in about April 2022. The applicant acknowledged some earlier complaints of pain in the neck. The references of neck pain don’t appear much from March 2022, but at that point there were other issues taking precedence. The third statement goes to the treatment of the neck and seeing Dr Shivan.
The applicant refers to ongoing and significant restrictions in the shoulder, including in the reports of Drs Burrows and Shiva. The history given by Dr Shiva is consistent with complaints since 2022. The applicant submits that Dr Shiva’s opinion is off the cuff, that is not triggered by a solicitor’s questions and should be given weight.
Dr Khong takes a history of onset of pain in September 2023. This aligns with the neck pain becoming a more significant feature in the clinical notes. The applicant refers to the June 2023 right wrist procedure which involved immobilisation. This is fairly consistent with a September 2023 onset of pain.
With respect to Dr Herald, the applicant submits that he deals with how the shoulder causes pressure on the spine. He accepts that there is a pre-existing condition that was aggravated by “hitching”.
The applicant then went through each of the reports of Dr Burrow, noting that at times it is not entirely clear what Dr Burrow means in his causal opinion. The applicant submits there is no need to satisfy s 9A or main contributing factor. The question is results from or material contribution. Dr Burrows also comments on the “temporal” connection between the shoulder and the neck condition.
Ultimately the applicant submits that there is a consistent line through the evidence. There is an accepted significant shoulder problem. There is a subsequent onset of neck pain and restriction and a set of opinions supporting the connection. Dr Herald spells out the precise mechanism and Dr Shiva says this is a common course. This has to be balanced against the opinion of Dr Burrows, but the applicant submits that his opinion doesn’t displace that of other doctors and he hasn’t addressed it in the correct way.
The respondent submits that it is important to look at the time of the onset of symptoms in the neck. There are different histories given in the reports and in the clinical records. In terms of the opinions, there are four or five different causal mechanisms given, and all of those proceed on the basis of the development of symptoms in around September 2023. When one looks at the clinical records, there are symptoms as early as March 2021. The doctors should have been provided with an earlier history, and don’t comment on it in their opinions.
The respondent referred to the applicant’s statements which shows the evolution of the allegation of the neck condition. The respondent submits I would not be assisted by them.
The respondent refers to the reports of Dr Viswanathan noting there is a significant omission – nowhere does he record a postural defect, which the applicant says has caused her condition.
Dr Herald’s history of an onset in September 2023 is inconsistent with the clinical material. There is also no history of abnormal posture or hitching, and this is not reflected in the examination findings. The respondent submits that Dr Herald’s opinion is very confusing. He doesn’t go into particulars about what is muscular spasm or hitching, and there is no clarification as to how this has aggravated the cervical spine. Simply because the neck symptoms appear after the shoulder injury doesn’t mean there is a causal connection.
Dr Shiva is entirely at odds with Drs Khong and Herald, and doesn’t refer to hitching, spasms or altered posture, but relies on a reduced range of motion. Drs Khong and Herald haven’t properly considered the non-work and work-related factors, including the degenerative change.
Dr Burrow notes the inconsistency between the imaging showing issues on one side but symptoms on the other. Contrary to the appellant’s submissions, the temporality is important and in Dr Burrow’s opinion, is more in reference to the lack of consistency of the onset of symptoms with surgery or after the use of the sling.
The respondent submits that a number of critical issues need to be addressed in assessing the claim. The neck symptoms came on prior to the shoulder surgery, which is not commented on by the applicant. Dr Herald has provided an opinion on postural issues without having indicated those postural issues are causative. There is an inconsistency between Drs Khong, Hearld, and Shiva. In response, there is the entirely logical opinion of Dr Burrows. On that basis, the applicant has failed to discharge her onus and there should be an award for the respondent.
In reply, the applicant submits that the early onset of symptoms does not undermine the applicant’s case. There are number of factors that have contributed to the neck condition – it does not have to solely be one of those factors. The respondent has not explained why it can’t be all of them. It is accepted that symptoms started in March 2021, and I should accept from the evidence that the symptoms did come on when Dr Burrows would have expected them two.
Nothing turns on the doctors seeing different avenues for the condition. There can be different avenues, and different times of increasing symptoms of deterioration. Dr Burrows does not say that the symptoms are inconsistent with the timing, he says it came on later, which is a different opinion.
FINDINGS AND REASONS
The issue in this case is singular, although as is always the case, not without complexity. Ms Sami injured her shoulder in the course of her employment with the respondent. She now claims that she suffers from a consequential condition in her neck as a result of that injury.
What the applicant must prove was set out in Moon v Conmah Pty Limited [2009] NSWWCCPD 134:
“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.”
The question of results from involves a “commonsense evaluation of the casual chain” (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). Pathology does not necessarily need to be identified (Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23) but that will depend on the issues for determination and the available medical evidence (Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3). The results from question raised by any consequential condition involves whether the injury materially contributes to the condition identified.
The applicant finds significant support for such a conclusion being reached throughout the evidence. I accept that there are, in some ways, differing versions of how the accepted injury has led to, or materially contributed to the current condition in the neck.
Dr Shiva, who, as the applicant points out, expresses an opinion absent any “prompting” from a solicitor, concludes that “Anita’s neck pain is likely related to her shoulder injury and subsequent surgeries”. This is an opinion of a causal connection that does not necessarily delve into how the neck pain is connected. In a later report dated 13 May 2025, Dr Shiva explains that mechanism:
“In my opinion, the cervical spine injury is related to the post-shoulder surgery recovery period. It is not uncommon for patients to develop reduced range of motion in both the neck and shoulder following shoulder surgery. The restricted neck mobility can lead to disc herniations during the recovery period, subsequently resulting in cervical radiculopathy.”
Dr Herald initially provides an opinion in a general way, stating that the applicant “developed secondary aggravation of an underlying cervical spondylosis”. In his report dated 23 July 2024, Dr Herald states:
“There is no question that she does have a background of cervical spondylosis or degenerative disease affecting those two levels C5/6 and C6/7. However, it does appear that this has been aggravated by her work-related condition affecting her right shoulder and the diffused tenderness and right-sided muscle guarding over the cervical spine affects not just the cervical spine but also the scapulothoracic region on the right side. As this scapulothoracic pain and muscular spasm is secondary to an aggravation of underlying cervical spondylosis which occurred secondary to a right shoulder injury and subsequent hitching of her shoulder, the injury to her right shoulder which is considered work-related has caused secondary pressure on the cervical spine, resulting in an aggravation of the underlying cervical spondylosis. Thus, her injury to her cervical spine has arisen out of the course of her employment.”
The respondent described this opinion as “confusing” as Dr Herald has not explained what “hitching” is, or what muscular spasm is, or how this has caused an aggravation of the cervical spine. I do not accept this submission. It is clearly expressed and is answering a medicolegal question. It is not necessary for Dr Herald to define or explain in minute detail the meaning of particular terms. He provides an opinion that supports the applicant that is well reasoned. The right shoulder has caused secondary pressure on the cervical spine. There is muscular spasm and pain in the scapulothoracic region.
Dr Herald goes on to address the temporality of the onset of shoulder pain in his report of 29 January 2025, in answer to a question about the nature and conditions of employment:
“however, she did not become symptomatic until after her right wrist and right shoulder injury and hence the reason why I have described her neck condition as secondary to her shoulder condition. I have attributed this primarily due to hitching of her shoulder with activity, causing increased pressure on her neck and aggravating her underlying spondylosis. This may be related to scapulothoracic dysfunction.”
The temporality of the onset of symptoms is a theme in the respondent’s submissions. I accept there are different histories recorded in the medicolegal opinions, in some of the treating evidence, and in the clinical notes. Drs Khong and Herald are roughly consistent in taking a history that the issue became apparent after wrist surgery that occurred in June 2023. Dr Herald records that Ms Sami had hand therapy for three months after surgery, which is consistent with an onset in September 2023.
Meanwhile Dr Shiva records the onset of neck pain “since 2022”. Dr Bose records that “on 23/02/2024 Anita Mentioned about her neck pain” but that she gets neck pain and stiffness for a “long time”. I don’t consider Dr Bose to be providing an onset of pain in February 2024. Dr Burrows takes a history, on 26 April 2024, of increasing neck pain “over the last 4 months”. This is inconsistent with all of the other evidence. It is not clear where this history arose from.
The clinical notes apparently identify a record of neck pain first occurring in March 2021. I have been unable to find this record. There are over 1,000 pages of clinical notes. The first reference to neck pain I can identify is a record on 30 March 2022, where Dr Bose records “says she gets pain behind her rt shoulder neck and behind rt eye” and that the onset was “since she started hydrotherapy”.
Following this record, there is a series of attendances all focussed on right shoulder and wrist issues. The next attendance mentioning the neck is on 1 August 2023, where Dr Bose records “as has rt shoulder/neck pain when moves”. This is broadly consistent with the history of onset taken by Drs Khong and Herald of a September 2023 onset, albeit slightly earlier. It is within the timeframe following the wrist surgery in June of that year.
I accept that there are earlier records of pain than that taken by the medicolegal experts in this case. I do not accept that defeats the applicant’s case (which is of course her onus to prove, on the balance of probabilities). When dealing with clinical notes, particularly as voluminous as these, one must always be mindful of the caution in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 that “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury”. See also Nominal Defendant v Clancy [2007] NSWCA 349.
This is enhanced in circumstances where there is an accepted injury, that has caused significant and ongoing problems for Ms Sami. The ongoing history of issues in the shoulder and wrist is apparent from Dr Bose’s notes, as well as the treating reports of A/Prof Viswanathan. Ms Sami’s first statement also sets out those issues.
Considering Ms Sami’s statements, I accept that there is again a slightly different history of onset of symptoms. The statement of 30 September 2024 records that Ms Sami started to notice right sided neck pain approximately six to eight months after the first shoulder surgery, performed on 13 October 2021 (which would be an onset of around March-June 2022). This is consistent with the Dr Bose’s clinical note of 30 March 2022, but different to the history taken by Drs Khong and Herald of September 2023.
I accept, as the respondent submits, that there are various different contributing causes postulated as to Ms Sami’s neck condition. This includes “altered postures”, from Dr Khong, the aforementioned opinion of Dr Herald, who relies on hitching, secondary pressure, and muscular spasm, and from Dr Shiva, due to being in a sling following surgery. It must be remembered that a condition can have multiple causes: ACQ Pty Ltd v Cook [2009] HCA 28.
Ms Sami does not need to prove that a singular hypothesis present in the medical information before me has caused her neck condition. She must prove that her consequential condition results from her accepted injury. It may be that the combination of issues identified have led to the condition that Ms Sami now suffers from. That is an acceptable position. As the applicant submitted in response, there are a number of factors that have contributed to the neck condition. It is not a case of saying it has to be one of them – why can’t it be all of them?
I also do not accept that Ms Sami must prove precisely when the symptoms came on. It is clear they have developed over time, and have become more overwhelming for her overall presentation, particularly recently. This is entirely consistent.
The contrary medicolegal opinion to all of this is Dr Burrows, who pins the condition solely on degenerative change. Dr Herald addresses the presence of degenerative change in Ms Sami, acknowledging that it exists but that it has been aggravated by her work injury. To accept Dr Burrow’s opinion would be to ignore overwhelming evidence that opposes it. Degenerative change remains part of the clinical picture affecting Ms Sami, but it is not the only part. Other causes have materially contributed to her current presentation.
In all of the circumstances of the case, I am satisfied, on the balance of probabilities, that Ms Sami suffers a consequential condition in her cervical spine. Given that finding, and the lack of dispute as to the reasonably necessity of the past expenses claimed, I will make an award for the applicant for the payment of those expenses.
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