Shaukat v ACM Parts Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shaukat v ACM Parts Pty Ltd [2024] NSWPIC 622
APPLICANT:	Sharfraz Shaukat
RESPONDENT:	ACM Parts Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	6 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted injuries to lumbar spine and left shoulder; whether applicant sustained cervical spine injury in same event; inconsistent recollections of the onset of symptoms; no record of cervical spine symptoms for approximately two years after the event; Held – applicant has not discharged his onus of establishing injury to the cervical spine; balance of matter remitted to President for referral to a Medical Assessor to assess permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent with respect to the allegation of injury to the applicant’s cervical spine. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 6 December 2018 Body parts: left upper extremity (shoulder) lumbar spine Method: whole person impairment. 3. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments and the Reply and all attachments.

STATEMENT OF REASONS

BACKGROUND

Mr Sharfraz Shaukat (the applicant) was employed by ACM Parts Pty Ltd (the respondent) as a vehicle dismantler.
On 6 December 2018, the applicant sustained an injury in the course of his employment while dismantling a car. It has been accepted by the respondent’s insurer that the applicant sustained an injury to his left shoulder and lower back in that event. The applicant also claims that he injured his cervical spine.
On 24 November 2023, the applicant, through his solicitors, made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in reliance upon an assessment made by orthopaedic surgeon, Dr Medhat Guirguis, of 26% whole person impairment (WPI) of the applicant’s left shoulder, lumbar spine and cervical spine.
Liability for an injury to the applicant’s cervical spine and the entitlement to lump sum compensation were disputed in notices issued by the respondent’s insurer pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 4 March 2024 and 19 June 2024.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 20 August 20204. The applicant seeks lump sum compensation pursuant to s 66 of the 1987 Act in accordance with Dr Guirguis’ assessment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to his cervical spine on 6 December 2018 pursuant to s 4 of the 1987 Act, and
(b) the degree of permanent impairment resulting from the injury on 6 December 2018.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 10 October 2024 at the Commission’s premises in Sydney.
The applicant was represented by Ms Nicole Compton of counsel, instructed by Mr Danny Lam. The respondent was represented by Mr Dewashish Adhikary of counsel, instructed by Ms Eunice Zeng. A representative from the insurer attended via Microsoft Teams.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in three written statements, dated 5 March 2024, 8 April 2024 and 7 August 2024.
In his first statement, the applicant described the injury on 6 December 2018 as follows:
“I was working underneath the car that was lifted above me on a hoist. I was dismantling the car. I was able to stand up completely under the car. The tools are on a trolley and I turned my back to the right to pick up the tool. I was picking up sockets. As I turned right to pick it up, I hurt my lower back, neck and left shoulder.”
The applicant was seen by a company doctor, Dr Denis Mulkeen, who prescribed painkillers and time off work. The applicant took two or three days off work but as his pain was very bad, Dr Mulkeen referred him for scans of his back and an injection at the left hip. The applicant also underwent physiotherapy.
In November 2019, the applicant underwent an injection to his back, as well as massage and acupuncture.
In March 2021, the applicant was referred for a bone scan and MRI of his left shoulder. The applicant was also referred to A/Prof Nicholas Smith, who referred the applicant for an injection to his left shoulder.
The applicant saw Dr Brian Hsu for his neck and back in May 2021. After undergoing an MRI scan of his neck and back, Dr Hsu recommended an injection to the back.
The applicant also saw Dr Baba in relation to his left shoulder in 2022 and underwent another injection to his shoulder.
The applicant was referred for pain management and saw Dr Alan Nazha and Dr Azhar Khan. The applicant was referred for more scans and advised to use a TENS machine.
The applicant described his ongoing symptoms and restrictions including, pain down the left side of his neck into his left shoulder, arm and fingers, as well as pins and needles.
In his second statement, the applicant disclosed a previous occurrence of neck pain:
“My work as a mechanic doing car dismantling work involved removing parts from cars such as car doors, boot lids, panels, gear boxes, engines and other body parts.
I remembered one instance where my neck and back did get a bit sore from my work.
I saw Dr Devsam about it on 07 April 2018. He prescribed me some medication, Norgesic.
I didn't take time off work after seeing Dr Devsam for this. After taking the medication, the pain to my neck and back got completely better.”
In his final statement, the applicant said he had told Dr Mulkeen about his neck after the injury on 6 December 2018 and at subsequent appointments. The applicant had tenderness and swelling on the left side of his neck. Dr Mulkeen referred to the applicant’s neck in his notes of the first consultation on 6 December 2018. The applicant did not know why Dr Mulkeen did not refer to the neck in any of his subsequent consultations. The applicant was very concerned about the significant pain in his back and left shoulder but did also tell Dr Mulkeen about the problems with his neck.
The applicant said he had been treated by physiotherapist, Steevan Slewa, at his neck as well as his back and left shoulder. Mr Slewa applied stickers on the applicant’s neck, left shoulder and back that sent electric shocks through those body parts.
The applicant felt that his concerns about his neck were not being listened to and sought a second opinion from Dr Joshua Devsam. The applicant said he told Dr Devsam about his neck pain as well as his back and shoulder pain. The applicant was referred for a whole-body scan.
At no time prior to the claim for lump sum compensation did the insurer, the applicant’s doctors or physiotherapists tell him that the insurer would not pay for treatment to his neck.

Treating evidence

The clinical records of general practitioner, Dr Joshua Devsam include a consultation on 7 April 2018 which the applicant was complaining of upper back pain to neck pains. The applicant was noted to be working as a mechanic doing heavy work and heavy lifting. The applicant was prescribed Norgesic.
A clinical note was made following the injury by another general practitioner, Dr Denis Mulkeen, on 6 December 2018, which recorded:
“Was twisting to the right side from left this morning doing his duties when he had a sudden onset of sharp pain in the left medial scapular area. This was so severe that he was unable to breathe for a while, he took some Nurofen, it has settled somewhat but still there.
…
Not able to look fully to the left with his cervical spine: Tender in the root of the neck but more so in the medial scapular area to the left of midline. Movement of the shoulder also hurts localised this area and he was tender here.”
Dr Mulkeen saw the applicant again on 11 December 2018 at which time the applicant reported new sacroiliac joint symptoms and was noted to be limping quite considerably.
On 13 December 2018, physiotherapist, Mr Steevan Slewa reported to Dr Mulkeen:
“Sharfraz reports 70% in medial scapula pain and 50% improvement in L LBP and SI pain. Cervical and lumbar range of motion is almost full. Continues to suffer from muscle tightness and pain with end range movement.”
On 18 December 2018, Dr Mulkeen noted improvement in the shoulder but the back was still irritable.
The applicant continued to be seen by Dr Mulkeen and Mr Slewa, predominantly in relation to back and upper trapezius symptoms, throughout in 2019.
The applicant was seen by another physiotherapist, David Blackburn, on 21 August 2019 who took a history of sudden left sided lower back pain when the applicant bent over and twisted to the right. On initial examination, Mr Blackburn noted significant breath holding and abnormal muscular guarding strategies with all movements. Mr Blackburn’s treatment focused on unwinding/relaxation strategies, gait correction and manual therapy to the hip and gluteal muscles.
Mr Blackburn’s subsequent reports continued to focus on the back and lower limbs.
The applicant was seen by sports physician, Dr Kevin Boundy, on 18 November 2019. In a letter of the same date, Dr Boundy reported that the applicant was troubled by ongoing back pain and numbness in the left leg. Dr Boundy said he had spoken with Mr Blackburn before the consultation who thought that the applicant had shown some improvement initially but then became very protective about his back and the improvement waned.
Dr Boundy reviewed the MRI of the applicant’s lumbar spine and performed a neurological examination. He recommended a sacroiliac joint injection which the applicant found extremely uncomfortable. Dr Boundy said he did not believe the applicant was amplifying his pain but his protective behaviour was not allowing him to move freely.
In a further report on 28 November 2019, Dr Boundy recorded that the applicant had temporary relief from the previous injection. The applicant was limping overtly and moving slowly. Range of motion was limited to just a few degrees because of pain. Palpation anywhere in the left sacroiliac joint reproduced pain. The applicant moaned and groaned when asked lie on his back. At the end of the consultation, the applicant was observed to sit in a chair and bend forward to pull on his socks and shoes without overt discomfort. The applicant was also observed to walk to his car with greater ease than in the consulting room and drop heavily into the seat without apparent distress. Dr Boundy commented:
“All of the above leads me to believe that Sharfraz may be showing avoidance behaviour rather than suffering from a physical injury.”
A clinical record made by Dr Mulkeen on 2 December 2019 recorded:
“I had Dr Boundy call me end of last week and he was expressing concern that the injured worker may not be completely genuine in his presentation. I have advised him that some may have doubts about him but I am prepared to keep an open mind on, plus as NTD not my role to determine the validity /genuinity of his claim or otherwise.”
The applicant was seen by neurosurgeon, Dr Andrew Kam on 13 February 2020. Dr Kam took a history of the injury involving pain initially in the lower back. Within a month, the applicant started developing pain involving his left lower extremity. The applicant described ongoing pain involving his left lower extremity and back. The applicant was taking a combination of Mobic and Mersyndol and had attended physiotherapy without any real improvement.
The applicant first consulted Dr Devsam in relation to the work injury on 21 October 2020, when it was noted:
“Work related injury first started in 6th Dec 2018
Was dismantling a car when turned for left to right and twisted injuring his back and lumbar spine
L4/5 and L5/S1 disc prolapse
Shooting pains down left leg
Progressively worsened
Was seen by GP and mangement provided and treatment provided
Analgesics - panadeine forte
Work cover certificate
was porgressing slowly and still in pains
All avenue's of mangement undertaken and not very successful
Examination:
Lumbar spine L4/5 and L5/S1 pains
and cannot bend, twist, or lift > 5kg items
poor prognosis
Unfit for heavy manual work”
On 2 November 2020, Dr Devsam recorded that the applicant was reporting pains in his left shoulder and left upper back.
On 23 November 2020, Dr Devsam noted,
“Cervical spine pains and shooting down to left shoulder and arm pains and lower lumbar spine pains L4/5 and LS/S1 pains.”
Dr Devsam referred the applicant for an MRI scan of the cervical spine, thoracic spine and lumbar spine.
The report of an MRI scan of the cervical spine performed on 4 December 2020 noted a small left C6/7 disc osteophytes complex and uncovertebral degeneration with mild narrowing of the left neural exit foramen. Irritation of the exiting left C7 nerve root was possible. No other significant neural exit foramina or spinal canal stenosis was identified.
A whole-body scan was performed on 19 March 2021 in relation to “chronic neck, shoulder and lower back pain”. The report noted low level discovertebral arthritic change in the cervical spine.
On 23 March 2021, Dr Devsam recorded a consultation as follows:
“Sharfraz is presenting with a work related injury when he was working as a car mechanic.
He had a car on the hoist and was working with both arms up and twisted from left to right when he sustained acute pains on left shoulder (MRI shows posterior labial tear) and upper neck, and lower cervical C4/5 and C6/7 pains.
He also sustained lower lumbar spine pains L3/4 and L4/5 pains with some radiation to buttocks.
He episodically complains of lower leg ? left leg shooting pains.
Cortisone injections have not resolved his problems. He is still not able to bend and use his trunk or neck region. MRI scans shows some disc collapse. His condition has not improved in over a year and this is of concern. He has been unable to return to even gradual light duties.”
A referral to Michelle Jackson of the South Western Sydney Area Counselling Service noted:
“Sharfraz was injured at work as a mechanic. He had a car up on a hoist, and twisted awkwardly resulting in injury to his left shoulder, neck and lower back. This happened on 6th Dec 2018. His treatement was hampered by misdiagnosis and hence poor tretment and diagnosis of the injury resulting in him having to tolerate high levels of pains now for over 2 yrs. He is unable to sleep on left shoulder, with neck pains and shoulder pains and back pains.”
The applicant was seen by orthopaedic surgeon, A/Prof Nicholas Smith on 19 April 2021. A/Prof Smith took a history of posterior pain while dismantling a car on 6 December 2018. On examination, the applicant had global restriction of range of motion. Reviewing the MRI scans, A/Prof Smith said the overwhelming impression was of capsulitis. The applicant was referred for a guided corticosteroid injection to the glenohumeral joint.
On 26 April 2021, Dr Devsam noted:
“Severe cervical spine pains and lower back pains
Also left shoulder pains with Left shoulder AC joint arthritis and left joint frozen shoulder
s/b Dr. N. Smith - for cortisone
Also has cervical spine C4/5 and C6/7 degenerative disc with osteomeatal complex and C7 nerve root
irritation on left side
This is causing left arm paraesthesia
and is now unable to sleep properly and is worsening
Has become more irrtable and angry with slightest provacation
Mentally is very stressed with his long term injuries causing pains
Needs psychologist management.”
Severe cervical spine pain causing left arm paraesthesia was again noted by Dr Devsam on 18 May 2021. Neck pain continued to be recorded in consultations with Dr Devsam during the remainder of 2021.
On 24 May 2021, the applicant was seen by orthopaedic surgeon, Dr Brian Hsu, who took a history which included:
“He has been experiencing significant neck and back pain after a work related injury in 2018 while he was working on heavy objects. His pain is mainly in the cervical spine but also in the lower lumbar region as well. He also has pain over the left shoulder.”
Dr Hsu noted that the applicant demonstrated a decreased range of motion of the cervical and lumbar spine due to exacerbation of his neck and back pain. In his assessment, Dr Hsu recorded:
“Mr Shaukat does demonstrate significant neck, shoulder and back pain. I feel that most of his neck pain is related to a frozen shoulder which he is seeing Dr Nicholas Smith for treatment.”
In a report to the applicant’s general practitioner, Dr Hsu stated that he had arranged for the applicant to undergo an updated MRI scan of the cervical and lumbar spine. The applicant would likely require intensive treatment for his shoulder and could then proceed with some diagnostic investigations for his neck and back symptoms.
The applicant underwent a further MRI of the cervical spine on 4 June 2021. The scan was reported to show a left sided uncovertebral spur causing mild-moderate foraminal stenosis at C6/7, contacting the exiting left C7 nerve root. At C4/5 there was mild bilateral foraminal stenosis.
On 1 July 2021, Dr Hsu recorded that the MRI scan of the cervical spine confirmed significant C4/5 and C5/6 disc pathology. The pathology and symptoms at the applicant’s lumbar spine were more significant and Dr Hsu recommended an L5/S1 epidural injection as the next step.
Orthopaedic surgeon, Dr Mohammed Baba reported on 17 November 2021 that the applicant had been seen by his colleague, Dr Nick Smith, with a diagnosis of adhesive capsulitis at his left shoulder after a work incident in December 2018. The applicant had persistent shoulder pain and dysfunction. A corticosteroid injection to the glenohumeral joint earlier in the year had provided some relief but the applicant still had pain and difficulty lying on that side. The applicant stated that he had also been diagnosed with cervical spine and lumbar disease. Dr Baba recorded his findings on examination and reviewed an MRI of the left shoulder and suggested the symptomology may be in keeping with bursitis or acromioclavicular (AC) joint arthropathy.
Dr Devsam prepared a letter of referral to a “Dr Bibi” on 14 February 2022 which stated:
“Sharfraz Ali is a workcover insurance related accidently, which happened when he was dismantling a car in an awkward position on the hoist at work as a mechanic. At the time he used high level of force and noticed a sudden severe pain and had to stop work. He also has some cervical and upper thoracic pains which have persisted since the injury. His previous GP poorly managed this patient with proper diagnosis not established, and pain management along with cortisone injections did not benefit him. He had further cortisone injections of cortisone provided by yourself with no improvement. He had MRI scans of cervical, lumbar spine, and left shoulder which showed that his cervical spine disc bulges were mild and insignificant. Now he is also complaining about the pain from upper to Mid - thoracic from and to the left shoulder. Hence I am requesting this MRI of thoracic vertebra also be considered in his management.”

Dr Baba saw the applicant again on 26 April 2022. The applicant continued to have pain in the posterior aspect of the shoulder and restriction of movement, Dr Baba suspected that a lot of the stiffness was pain mediated. An MRI of the shoulder showed a small posterior labral tear but no other significant inflammatory condition. Dr Baba commented:
“I have advised him that the pain and stiffness that he has is out of proportion to his posterior labral tear and that it MAY be that he has a resolving capsulitis.”
The applicant started seeing a new general practitioner, Dr Kevin Ng on 21 June 2022, who noted lumbar spine and left shoulder pain. On 19 November 2022, Dr Ng noted that the applicant’s main area of pain was the left shoulder with pain radiating to the neck.
In a report to Dr Baba, dated 29 November 2022, pain physician and interventional pain specialist, Dr Alan Nazha said the applicant presented with extensive pain occupying his left shoulder, left scapula and left side of his lower back. The applicant had difficulty describing the nature of the pain but said it was always present and was dull. There was no evidence of significant numbness, pins and needles or dysaesthesia. Dr Nazha said the MRI of the applicant’s cervical spine was “largely non-contributory”.
In a further report dated 2 December 2022, Dr Nazha recorded:
“He has no difficulty remaining seated for the consultation; however, demonstrates significant fear-avoidant behaviour when attempting to utilise the left side. Significant restrained motion of his cervical spine with minimal rotation to the left. Attempt to perform Spurling's manoeuvre results in significant pain on the left-hand side. He is exquisitely tender to palpation overlying the left-side of his cervical spine, upper trapezius muscle overlying the likely origin of the dorsal scapular nerve, supraspinous fossa as well as that of quadrilateral space.”
Dr Nazha recorded his impressions which included:
“lt is difficult to ascertain the nature of Sharfraz’s pain. He demonstrates significant fear avoidant behaviour and evidence of maladaptive cognitive and behavioural responses to his persistent pain in the context of a likely comorbid mood disorder.”
The applicant was seen again by Dr Hsu on 11 January 2023 reporting significant ongoing symptoms despite non-operative treatment. Dr Hsu arranged for an updated MRI scan of the cervical and lumbar spine.
Nerve conduction studies performed on 31 January 2023 by A/Prof Nimeshan Geevasinga showed no neurophysiological evidence of left sided cervical nerve root dysfunction.
The applicant was seen by consultant occupational physician, Dr Azhar Naseeb Khan, on 8 February 2023, who recorded a history of a lumbar spine injury and noted:
“During the medical assessment he also advised that he presents with a history of work related neck and left shoulder injury. This is accompanied with reduced active range of motion in his neck and left shoulder joint. His neck pain is associated with shooting pain that radiates down to his left hand.”
Dr Khan noted pain on palpation of the left paracervical region and reduced active range of movement in the cervical spine. Dr Khan recommended a furtherMRI of the neck, left shoulder and lumbar spine and referral to a neurosurgeon.
On 26 September 2023, Dr Nazha reported that the applicant did his best to engage in a psychoeducational pain management program but was still complaining of significant left sided cervical and shoulder retroscapular pain and left sided lower back pain. The applicant was exquisitely tender to palpation overlying the left side of his cervical spine, upper trapezius muscle, the medial border of scapular and overlying his shoulder. Dr Nazha recommended an updated MRI of the cervical spine and percutaneous pulsed radiofrequency therapy targeting the cervical medial branches, dorsoscapular nerve and suprascapular nerve.

Dr Guirguis

The applicant relies on medico-legal reports prepared by orthopaedic surgeon, Dr Medhat Guirguis, dated 26 October 2023 and 4 April 2024.
In his first report, Dr Guirguis described the incident on 6 December 2018 as follows:
“As he twisted his back to the right to pick up a tool located on a trolley behind him, he felt sharp pain in the left side of his lower back and left buttock and shortly after spreading up the spine to the left side of his neck.
…
He indicated that since the initial days of the injury he complained of extension of the pain to the left shoulder and down the left arm but everyone was relating his shoulder symptoms to his neck but as time passed the left shoulder problem steadily worsened and became a source of handicap on its merits and he was sent for investigations in 2022 and they started arranging investigations for his left shoulder.”
The applicant’s ongoing complaints included neck pain and stiffness with persistent radiation to the left shoulder in the top of the left shoulder blade.
Dr Guirguis recorded his findings on clinical examination:
“I observed that the pain and tenderness were pointed to be felt over the lower half of the neck with extension to involve the left supraspinous fossa and the left shoulder. Restriction in the range of movements was as follows: Flexion 30 [N 45]; Extension 30 [N 45]; Right lateral flexion 20 [N 45]; Left lateral flexion 30 [N 45]; Right rotation 40 [N 80]; and Left rotation 60 [N 80]; with guarding on trying to move beyond these restrictions. Neurological signs of nerve root involvement were observed to be absent.”
Dr Guirguis made a diagnosis of:
“Post-traumatic mechanical derangement of the cervical area of the spine. This was caused by right sided musculo-ligamentous sprain \ strain which had also triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes.”
In his supplementary report, Dr Guirguis was asked to consider the reports prepared by Dr Richard Powell for the insurer. Dr Guirguis said his opinion had not altered, explaining:
“There is confusion here between the radiological findings and the nature of the post-traumatic pathology. The radiological investigations showed evidence of the expected asymptomatic pre-existing age-appropriate changes. The injuries in the cervical and lumbar spines did not cause such changes but rather caused musculo-ligamentous sprain \ strain which had triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes rendering them symptomatic. The role of such underlying changes would render the spine more vulnerable to the effect of the traumatic stresses generated by an accident like the one described.”

Dr Powell

The respondent relies on medico-legal reports prepared by orthopaedic surgeon, Dr Richard Powell, dated 2 November 2023 and 21 February 2024.
In his first report, Dr Powell described the applicant as compliant and cooperative but said he was not a good historian and it was difficult to obtain a detailed history.
The mechanism of injury described by the applicant was of twisting to his right side to retrieve a tool and in doing so becoming aware of a clunk in the lower back accompanied by an onset of lower back pain. The applicant indicated that his left shoulder and cervical spine symptoms developed approximately a week later. Dr Powell noted that the timeline related to the onset of symptoms was inconsistent throughout the documents provided to him.
Dr Powell noted that the applicant had been reviewed by a series of different specialists in relation to general symptoms involving the lower back and pelvis, left shoulder and cervical spine. The applicant reported ongoing symptoms involving the cervical spine, left shoulder and lumbar spine.
In relation to the cervical spine, the applicant described a sharp pain in the midline region of the neck radiating to the left side down the left arm to the hand. The arm pain was constant and accompanied by pins and needles involving the left little finger. The applicant was aware of neck stiffness, restricted range of motion and headaches. Dr Powell summarised the relevant radiological investigations of the cervical spine.
The applicant denied any prior injuries involving the cervical spine.
On examination, Dr Powell noted the applicant’s presentation was unusual. The applicant was pain focused and exhibited a heightened pain response. Inconsistencies were noted in relation to spontaneous movements in the neck and left shoulder compared to those at the time of formal physical examination. Reduced spontaneous movements of the head and neck had been noted. However, on formal testing, the applicant had forward flexion at half the normal range, zero extension and only 10° of rotation and lateral flexion. The observed spontaneous movements were well in excess of these.
There was diffuse tenderness to palpation of the posterior aspects of the cervical spine along the full length from midline across to the left paraspinal and trapezial region. There was no muscle spasm. The applicant had global weakness of the left upper limb which could not be localised to a specific myotome or peripheral nerve distribution and was clearly non-organic in nature. There was no obvious wasting and deep tendon reflexes were present, equal and symmetrical.
Dr Powell gave the opinion that the forces involved in the injury were minimal and highly unlikely to have the capacity to cause any significant structural pathology in the cervical spine. The applicant’s presentation was unusual and showed evidence of abnormal illness behaviour. There was a significant psychosomatic component to the applicant’s condition. Dr Powell said it was not possible to explain the ongoing widespread musculoskeletal symptoms involving the cervical spine on the basis of any organic pathology caused by an injury sustained in the manner described.
Dr Powell noted that several of the applicant’s treating practitioners had expressed concern in relation to the nature of the applicant’s presentation. Dr Powell said he did not believe the applicant had sustained a defined musculoskeletal injury to the cervical spine (or any other body part) in the incident on 6 December 2018.
Dr Powell prepared a supplementary report following file review on 21 February 2024 which included the report of Dr Guirguis dated 26 October 2023. Dr Powell said the additional information did not lead him to alter his previously expressed opinions.
Although the applicant complained of ongoing symptoms, Dr Powell did not believe that these were caused by any defined injury sustained in the course of his employment.

Applicant’s submissions

The applicant submitted that he sustained a significant injury to his lower back and left shoulder in the injurious event. The applicant referred to his statements, which set out his recollections as to his treatments and complaints. The applicant submitted that there was no reason not to accept his version of events.
The applicant described experiencing symptoms in his neck at the time of the work injury. Subsequently he experienced constant pain in his neck and left arm and pins and needles.
The prior neck issue disclosed in the second statement might be relevant to a deduction pursuant to s 323 of the 1998 Act but that was a matter for a Medical Assessor.
In his final statement, the applicant described, in strong terms, telling his doctors about his neck symptoms including, swelling and tenderness. The applicant’s physiotherapist administered treatment to the neck at the insurer’s expense. The applicant said he was very concerned about the pain in his neck and did disclose it to his doctors.
The applicant referred the Commission to authorities such as Mason v Demasi,[1] noting that doctors dealing with a busy practice should not be expected to have recorded a verbatim version of what the applicant said. The applicant was dealing with significant issues and ongoing treatment involving other body parts at the time.
[1] 2009] NSWCA 227.
Turning to the medico-legal evidence, the applicant submitted that the opinions of Dr Guirguis would be preferred over those of Dr Powell. Dr Guirguis provided a thorough review of the relevant records compared to Dr Powell.
Dr Guirguis recorded a consistent history and complaints of pain down the arm. Dr Guirguis found tenderness at the lower end of the neck adjacent to the shoulder area and diagnosed post-traumatic mechanical derangement of the cervical spine.
The pain diagram recorded by Dr Guirguis included symptoms in the neck.
In his supplementary report, Dr Guirguis was asked to confirm the cause of the symptoms in the applicant’s neck. The applicant said Dr Guirguis provided a well-reasoned opinion on causation and commented on Dr Powell’s reports. Dr Guirguis confirmed his previously expressed opinion that a frank injury to the neck had caused aggravation of an underlying condition.
The applicant referred the Commission to the clinical record made by Dr Mulkeen on 6 December 2018 describing tenderness in the neck and restriction of movement.
The applicant noted that reference was made to the cervical spine at the consultation with Mr Slewa on 13 December 2018.
Although the ongoing consultations with the applicant’s general practitioners and Mr Slewa focused on the shoulder and back, the applicant’s evidence was that he was receiving physiotherapy to his neck at the same time.
The applicant conceded that there were no other contemporaneous records of neck pain until late 2020. From December 2020, the State Insurance Regulatory Authority (SIRA) Certificates of Capacity referred to the cervical spine. It was not until the applicant saw Dr Hsu that a diagnosis at the neck became apparent. Dr Hsu related the applicant’s symptoms to his injury.
In the intervening period, the applicant was off work and receiving treatment for his injuries. It was not until the first dispute notice on 4 March 2024 that the insurer declined ongoing treatment of the cervical spine in reliance upon the report of Dr Powell. Up until that point, the applicant had been treated by his general practitioners and multiple surgeons for symptoms at the cervical spine. This suggested that an injury to the cervical spine had been accepted.
In declining liability, the insurer relied upon Dr Powell’s opinion that the mechanism of injury was highly unlikely to cause significant structural pathology. In giving that opinion, Dr Powell applied the wrong test. Dr Powell was distracted by the applicant’s presentation and was not qualified to comment on any psychosomatic component of the applicant’s symptoms.
The applicant submitted that Dr Guirguis’ consideration of the treating evidence was more thorough than Dr Powell’s. The weight of treating evidence favoured the occurrence of an injury to the cervical spine. Dr Guirguis found an organic explanation. Although the injurious event did not cause the pathological changes it triggered or aggravated symptoms.
Dr Powell failed to deal with the evidence of an increase in neck symptoms. Dr Powell did not address whether there had been an injury and was concerned with how the applicant’s current presentation related to the injurious event. Dr Powell simply said he could not explain it.
The applicant submitted that it was not necessary for the applicant to establish an ongoing injury to the cervical spine. The relevant question was whether he had ever sustained an injury. The ongoing effects were a matter for a Medical Assessor.
Dr Powell reviewed Dr Guirguis’ reports but said they did not alter his opinion that there was no specific injury. Dr Powell simply could not explain the applicant’s presentation. In all the circumstances, the applicant submitted that the Commission would prefer the opinion of Dr Guirguis.
The applicant acknowledged that the contemporaneous evidence of injury was limited but said it was not non-existent. It was open to the Commission to accept the applicant’s evidence that an injury was reported and occurred. It had been accepted that the applicant sustained injuries to adjacent body parts. Nothing in the evidence would indicate that the applicant did not also sustain an injury to his cervical spine.
The applicant noted the evidence in his third statement that he did report his neck symptoms to his general practitioner but had been hampered by misdiagnosis and poor treatment resulting in him having to tolerate high levels of pain for over two years.
A referral for counselling noted that the applicant had changed general practitioner and had reported that he was unhappy with his early treatment and potential misdiagnosis.
It was not until Dr Devsam looked at things with fresh eyes that the diagnosis became apparent.
The applicant observed that although the injury was a frank injury or injury simpliciter, it would also satisfy the definition of injury in s 4(b)(ii) of the 1987 Act.

Respondent’s submissions

The respondent submitted that the injury relied upon was caused by a frank event rather than a gradual process.
The primary difficulty for the applicant was that he could not demonstrate pathological change at the cervical spine in the event on 6 December 2018. While there was a complaint of symptoms at the cervical spine, the applicant’s own evidence suggested that the issues in the cervical spine were referred from the left shoulder. The respondent submitted that there had been no pathological change at the cervical spine.
The respondent submitted that the applicant was asking the Commission to accept his own lay evidence and the evidence of Dr Guirguis over his own treating doctors, who for a long period of time did not find an injury to the cervical spine. The applicant had not sought or obtained treatment at the cervical spine until December 2020, two years after the incident.
The first clinical entry referring to the injurious event on 6 December 2018 recorded symptoms in the neck but did not support a finding of pathological change at the neck. The first Certificate of Capacity only referred to injury to the left upper back and shoulder. Having obtained a history from the applicant and having examined him, applying his own specialised knowledge the applicant’s general practitioner did not find a cervical spine injury.
The respondent submitted that the applicant’s own treating doctors had questions around the veracity of the applicant’s presentation, noting the report from Dr Boundy on 2 December 2019.
The respondent submitted that there was no mention of a cervical spine injury in the clinical notes until 21 December 2020. Dr Mulkeen failed to find an injury at the cervical spine.
The respondent noted that Dr Slewa recorded on 13 December 2018 that the applicant’s cervical range of motion was almost full. He found issues with the medial scapular and lower back. Dr Slewa’s evidence was consistent with an absence of injury to the cervical spine. The subsequent focus on the shoulder and back were a reflection of the fact that those with the only body parts injured.
The applicant was treated by another physiotherapist, Mr Blackburn, who made no mention of the cervical spine in his records.
The first imaging of the cervical spine was performed in December 2020. By that time, a significant period of time had elapsed since the injury. The applicant was then referred to various specialists. Dr Baba and A/Prof Smith both found shoulder pathology. Although the applicant told Dr Baba that he had been diagnosed with cervical spine disease, Dr Baba did not provide his own opinion in that regard. Dr Baba found that the applicant had pain that was out of proportion to the MRI findings.
Dr Hsu referred to the imaging of the cervical spine and said that most of the applicant’s neck pain related to his frozen shoulder. Similarly, Dr Nazha noted cervical spine symptoms but was not supportive of a pathological change at the cervical spine.
The applicant’s evidence conceded that there were unrelated changes to the cervical spine. The applicant’s treating evidence demonstrated that symptoms that the cervical spine were referable to the shoulder. The Commission would accept the opinion of Dr Powell over that of Dr Guirguis. Dr Powell found no injury to the cervical spine and said it was not possible to explain the applicant’s widespread musculoskeletal symptoms.

The respondent said the opinion of Dr Guirguis would not be accepted because it was not consistent with the treating evidence. Dr Guirguis had not addressed the referral of symptoms from the left shoulder or grappled with the contribution of the left shoulder injury to the applicant’s complaints.
The opinion given by Dr Boundy with regard to the applicant’s abnormal illness behaviours was consistent with Dr Powell’s view.
The respondent submitted that this is not a case where the trajectory of treatment changed with the new general practitioner. The applicant’s symptoms remained the same. The treating specialist evidence did not demonstrate a cervical spine injury.
The respondent denied that it had ever accepted an injury to the cervical spine. There was no estoppel by conduct. There was no correspondence accepting liability for a cervical spine injury.
In any event, the evidentiary landscape changed with the reports of Dr Powell.

Applicant’s submissions in reply

The applicant submitted that there was no requirement for him to demonstrate pathological change. Although this was a frank injury there did not need to be a change in pathology an aggravation was sufficient.
The applicant submitted that the Commission would be comfortably persuaded on Dr Guirguis’ evidence that there had been an aggravation sufficient to satisfy the requirements of s 4(b)(ii) of the 1987 Act.

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.”
The applicant in these proceedings relies on a personal injury for the purposes of s 4(a) of the 1987 Act or, in the alternative, an injury pursuant to s 4(b)(ii) of the 1987 Act.
Deputy President Roche considered the meaning of “personal injury” in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear,[2] observing:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead) it is ‘a sudden identifiable pathological change’”.
[2] [2014] NSWWCCPD 47.
In Federal Broom Co Pty Ltd v Semlitch[3] Kitto J considered what constituted an exacerbation of a disease for the purposes of s 4(b)(ii), stating:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
[3] [1964] HCA 34; 110 CLR 626 at [632].
Similarly, Windeyer J said,
“[t]he question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”
Applying Semlitch, Burke CCJ in Cant v Catholic Schools Office;[4] said:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
[4] [2000] NSWCC 37.
The terms “personal injury” and “disease” are not mutually exclusive. A sudden identifiable physiological (pathological) change to the body brought about by an internal or external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury (North Coast Area Health Service v Felstead)[5].
[5] [2011] NSWWCCPD 51 at [77].
The mechanism of injury relied on in these proceedings involved the applicant standing and twisting to the right to pick up a tool. It is not in dispute that the applicant experienced an injury to his back and left shoulder in this event. The dispute I am tasked with determining is whether that event caused an injury to the applicant’s cervical spine.
The nature of the applicant’s symptoms in the immediate aftermath of the event has been inconsistently recorded in the material before the Commission. The applicant’s statement evidence, which was prepared more than five years after the injurious event on 6 December 2018, unequivocally states that the applicant experienced immediate symptoms in his neck as well as his lower back and left shoulder.
The most contemporaneous account of the applicant’s symptoms, however, was recorded by Dr Mulkeen on the same day and referred only to a sudden onset of sharp pain in the left medial scapular area. On examination, Dr Mulkeen noted that the applicant was unable to look fully to the left with his cervical spine and was tender in the root of the neck. However, the applicant was more tender in the medial scapular area to the left of the midline and movement of the shoulder generated pain localised to that area.
While this examination elicited symptoms of stiffness and tenderness at the cervical spine, the history did not suggest an acute onset of symptoms at the cervical spine but rather the left medial scapular area. It is significant that the SIRA Certificates of Capacity subsequently issued by Dr Mulkeen did not include a diagnosis of injury to the cervical spine.
It is also relevant to note that the applicant had previously complained of neck pain to his other general practitioner, Dr Devsam, eight months earlier in April 2018. Subsequent radiological investigations have revealed the presence of degenerative pathology at the applicant’s cervical spine. I am not satisfied, therefore, that the findings of stiffness and tenderness at the cervical spine at Dr Mulkeen’s examination on 6 December 2018 are conclusive evidence of an injury to the cervical spine on that date.
Interestingly, the first symptoms in the lumbar spine or sacroiliac joint were described as “new” five days later in a clinical record made by Dr Mulkeen on 11 December 2018.
The history recorded by Dr Guirguis was of the applicant feeling a sharp pain in the left side of his lower back and left buttock as he twisted his back to the right to pick up a tool. Shortly afterwards, the pain spread up the spine to the left side of the applicant’s neck. The applicant said he had, since the initial days of the injury, complained of pain to the left shoulder and down the left arm but all the doctors related the shoulder symptoms to his neck.
The history recorded by Dr Powell was of the applicant becoming aware of a clunk in the lower back accompanied by an onset of lower back pain as he retrieved a tool. The applicant told Dr Powell that his left shoulder and cervical spine symptoms developed approximately one week later.
There are, therefore, clear inconsistencies in the applicant’s recollection of his experience of symptoms in the event on 6 December 2018.
The value of contemporaneous evidence has been repeatedly endorsed by the courts: Watson v Foxman[6] and Onassis v Vergottis.[7] In the latter case, Lord Pearce commented upon what is often recollected and said by witnesses after an event, as opposed to what is contemporaneously recorded in documents at the time of the event, in the following terms:
"Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
[6] (1995) 49 NSWLR 315.
[7] (1968) 2 Lloyds Report 403.
The contemporaneous evidence in this case indicates that while there were symptoms at the cervical spine at Dr Mulkeen’s examination on 6 December 2018, the acute onset of symptoms was in the area of the left shoulder blade. Shortly thereafter, symptoms were recorded in the applicant’s lower back. The injury diagnosed by Dr Mulkeen was to the left scapular area and the lumbar spine. Consistently with Dr Mulkeen’s approach, physiotherapist, Mr Slewa focused his attention on the left scapular area and lumbar spine. By 13 December 2018, Mr Slewa reported that the cervical stiffness noted by Dr Mulkeen had resolved and the range of motion at the cervical spine was almost full.
The applicant continued to undergo treatment by Dr Mulkeen and Dr Slewa without any further reference to cervical symptoms. The applicant was seen by another physiotherapist, Mr Blackburn, whose treatment was focused on left sided lower back pain, the hip and gluteal muscles. No mention of cervical symptoms appears in Mr Blackburn’s evidence.
Symptoms in the lower back and left leg were also considered by Dr Boundy, who as the respondent noted, eventually became concerned about the veracity of the applicant’s presentation. No reference to cervical symptoms was made in Dr Boundy’s reports.
Significantly, the applicant was also seen by a neurosurgeon, Dr Kam, in February 2020, for his back symptoms, again without any reference to cervical symptoms.
The applicant discussed the work injury with Dr Devsam in October 2020. On 21 October 2020, Dr Devsam noted lumbar and left leg symptoms related to the injury. On 2 November 2020, Dr Devsam recorded that the applicant was reporting pains in his left shoulder and upper back.
The first clear reference to cervical spine and left arm symptoms appeared in the clinical record made by Dr Devsam on 23 November 2020.
This review of the treating material therefore indicates that, other than the initial cervical symptoms recorded by Dr Mulkeen, no reference was made by any of the applicant’s treatment providers to cervical symptoms or injury for a period of almost two years following the injurious event.
In his most recent statement, the applicant was adamant that he had disclosed neck symptoms to his treatment providers throughout this period. The applicant said Dr Slewa administered treatment to the applicant’s neck. The applicant could not explain why the treatment providers did not refer to the neck in their records although he did express that he felt his concerns about his neck were not being listened to.
The treating practitioners’ failure to make a record of neck symptoms or treatment for a period of almost two years is significant. In Department of Education and Training v Ireland[8] Keating P found:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
[8] [2008] NSWWCCPD 134.
Further, in Jowett v S & R Jowett Pty Ltd[9] Snell DP commented:
“The extent to which a delay or inconsistency in reporting complaints is significant will depend on the facts of a case overall, the nature of the medical condition at issue and the medical evidence. The allegation regarding a fall at the hospital involved the occurrence of a specific incident and (on one version of it) the left shoulder being dislocated. These are matters that would ordinarily be immediately apparent, unlike, for example, a condition of gradual onset. In the circumstances, evidence of contemporaneous complaint would be of potential relevance to whether an incident occurred and its nature.”
[9] [2022] NSWPICPD 42.
The applicant has sought to explain the omission of neck symptoms in the treating evidence by reference to the authorities in cases such as Mason v Demasi[10] and Davis v Council of the City of Wagga Wagga,[11] where it was observed:
“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.”
[10] 2009] NSWCA 227.
[11] [2004] NSWCA 34.
In this case, it has been accepted that there was a frank injury to the applicant’s left shoulder and lumbar spine. I also accept that treatment of the applicant’s injury was initially focused on his apparently significant lower back and left shoulder symptoms.
If, however, the applicant did indeed experience an acute onset of symptoms at his cervical spine, as is now alleged, and disclosed this to his treating practitioners, it is, in my view, improbable that those symptoms were not recorded or investigated for a period of almost two years, over the course of multiple consultations conducted by the applicant’s general practitioner, two physiotherapists, a sports physician and a neurosurgeon.
The applicant has also sought to explain the omissions in the treating evidence by reference to misdiagnosis and poor management of his injury by his early treatment providers. This sentiment was reiterated in Dr Devsam’s clinical notes and, in particular, his letter referring the applicant for counselling. The treating material does, however, suggest careful and open-minded management of the injury, not only by Dr Mulkeen but several other specialist providers, none of whom diagnosed a cervical spine injury.
As indicated above, the history of an acute onset of symptoms at the cervical spine in the event on 6 December 2018 was first recorded by Dr Devsam, from whom the applicant sought a second opinion in late 2020. Although the applicant has suggested that it was with Dr Devsam’s “fresh eyes” that the injury to the cervical spine was diagnosed, it is apparent that Dr Devsam was simply acting upon the applicant’s complaints of symptoms.
It appears Dr Devsam may also have had a different understanding of the mechanism of injury. In his clinical record dated 23 March 2021, Dr Devsam said the applicant was working on a car on a hoist “with both arms up” when he twisted awkwardly from left to right and sustained acute pains at his left shoulder, neck and lumbar spine. Elsewhere, Dr Devsam has referred to the injury involving “significant forces” and “heavy weights”. These accounts are difficult to reconcile with the applicant’s statement evidence and the histories given to the medicolegal experts.
Dr Devsam included the cervical spine in his diagnosis of the injury in the certificates of capacity issued by him. The specialists who have seen the applicant since that time were also given a history of significant neck pain dating from the injurious event in 2018. The radiological investigations arranged by Dr Devsam and Dr Hsu found pathology at the cervical spine. There were, however, indications in the treating material that that pathology was considered by some of the treating practitioners to be “mild and insignificant”. Dr Devsam expressed that view in a letter of referral in February 2022. In November 2022, Dr Nazha also expressed the view that the pathology seen on the MRIs of the cervical spine was largely non-contributory. Dr Hsu expressed the view that most of the applicant’s neck pain was referred from the left shoulder. Nerve conduction studies performed in January 2023 showed no neurophysiological evidence of left-sided cervical nerve root dysfunction.
Thus while there is a large and mostly consistent body of treating evidence describing cervical spine symptoms commencing with the injurious event in the materials from late 2020 onwards, this evidence was based on the applicant’s own account of the event. There was also significant uncertainty amongst the treating practitioners as to the contribution of the cervical spine pathology to the applicant’s symptoms.
It is on this background that the opinions of Dr Guirguis must be viewed. The history recorded by Dr Guirguis of a sharp pain, initially to the lower back, later spreading up to the left side of the neck with an extension of pain down the left arm, is difficult to reconcile with the most contemporaneous record of the event.
Dr Guirguis’ view that there was post-traumatic mechanical derangement of the cervical area of the spine, triggering and aggravating underlying asymptomatic age appropriate degenerative change, was based upon that history as well as his clinical findings and the radiological evidence.
Dr Guirguis has not, however, addressed the lack of reference to the cervical spine in the treating evidence in the period of two years following the injurious event. Nor has he addressed the suggestions in the treating evidence that the pathology at the applicant’s cervical spine may not be contributing to the applicant’s symptoms. These omissions significantly undermine the weight I am able to place on Dr Guirguis’ report.
Dr Powell’s history was similarly difficult to reconcile with the most contemporaneous account of the injury. Dr Powell noted that the applicant was not a good historian and that the timeline of the onset of symptoms was reported inconsistently throughout the documents provided to him.
Dr Powell described a problematic examination of the applicant which led him to conclude that the applicant’s presentation involved abnormal illness behaviour and a significant psychosomatic component. Dr Powell said it was not possible to explain the widespread musculoskeletal symptoms involving the cervical spine on the basis of any organic pathology caused by an injury sustained in the manner described to him. Dr Powell’s view as to the applicant’s presentation receives some support in the treating materials, particularly the reports from Dr Boundy and Dr Nazha.
Dr Powell’s reports were, however, criticised by the applicant on the basis that they were unduly focused upon the applicant’s current presentation as opposed to the question of whether any injury had occurred in the event on 6 December 2018. Dr Powell was also said to be unduly preoccupied with the question of whether the mechanism of injury had the capacity to cause significant structural pathology, when an increase in the applicant’s symptoms was sufficient to found an injury for the purposes of s 4(b)(ii) of the 1987 Act.

While these criticisms of Dr Powell’s reports may be apt, the fact remains that it is the applicant who bears the onus of demonstrating on the balance of probabilities that he sustained an injury to his cervical spine in the event on 6 December 2018.
After weighing the evidence, I am not satisfied that the applicant has sustained an injury to his cervical spine on 6 December 2018 for the purposes of s 4(a) or 4(b)(ii) of the 1987 Act.
While I do not suggest that the applicant does not have a genuine experience of symptoms at his cervical spine, after careful consideration of the evidence and submissions before me, I am not satisfied that those symptoms are causally related to an injury in the event on 6 December 2018.
There will be an award for the respondent in respect of the allegation of injury to the cervical spine.
The balance of the matter will be remitted to the President for referral to a Medical Assessor for an assessment of the degree of permanent impairment resulting from the injury at the applicant’s lumbar spine and left upper extremity (shoulder).

[2024] NSWPIC 622

6 November 2024