Short v Downer EDI Engineering Power Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Short v Downer EDI Engineering Power Pty Ltd [2022] NSWPIC 31
APPLICANT:	Daniel Short
RESPONDENT:	Downer EDI Engineering Power Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	24 January 2022
CATCHWORDS:	WORKERS COMPENSATION -Claim for weekly benefits and section 60 expenses, including the cost of future cervical spinal surgery, as a result of a disease injury deemed to have been contracted in the course of the applicant’s employment with the respondent; the respondent disputed liability on the basis of an undisclosed injury sustained by the applicant shortly before he commenced employment with the respondent, and put his credibility in issue; finding that the applicant had not disclosed prior injury and that his version as to what he said at a meeting with employer representatives should be accepted; nevertheless, after a detailed examination of medical evidence, there was a finding in favour of the applicant on the issue of injury, incapacity as a result of injury and the reasonable necessity of surgery claimed by him; Held- the respondent was ordered to pay the applicant weekly compensation claimed and section 60 expenses including the cost of surgery
DETERMINATIONS MADE:	1. The applicant sustained a disease injury to his cervical spine contracted by him in the course of his employment with the respondent, deemed to have occurred on 24 May 2021. 2. The applicant’s employment with the respondent was the main contributing factor to contracting the disease. 3. The applicant has had no current work capacity since 9 September 2021. 4. The applicant’s pre-injury average weekly earnings are $2,254.60. 5. The respondent is to pay the applicant weekly compensation at the rate of $2,141.87 per week as adjusted from 9 September 2021 to 6 December 2021 pursuant to s 36 of the Workers Compensation Act 1987 and hereafter at the rate of $1,803.68 per week as adjusted pursuant to s 37 of such Act. 6. The surgery proposed by Dr P Khong, namely C5/6 and C6/7 anterior cervical discectomy and fusion, is reasonably necessary as a result of injury deemed to have occurred on 24 May 2021. 7. The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the Workers Compensation Act 1987, including the costs of and incidental expenses incidental to the surgery referred to in [6] above.

STATEMENT OF REASONS

BACKGROUND

Danniel Short (the applicant/Mr Short) claims weekly benefits and compensation for medical expenses pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for injury arising out of or in the course of his employment with Downer EDI Engineering Power Pty Ltd (the respondent/Downer), deemed to have occurred on 24 May 2021.
The applicant commenced work with the respondent at the Bayswater Power Station, between Singleton and Muswellbrook NSW, on 17 March 2021 and had a contract to work until 30 June 2021 as a hoist operator/rigger. He was on the night shift and was one of two hoist operators. Mr Short says that his sole duties were to operate the hoist, but that he was required to do other work for which he was not employed. His night shift required him to work from 7.00 pm until 6.00 am Monday to Sunday morning, with a smoko break of 15-20 minutes and a lunch break of half an hour.
Prior to his employment with the respondent the applicant worked for Vari Group as a general labourer. On 27 February 2021 in the course of that employment he suffered an injury which he described as “…straining of my upper back and shoulder…” when carrying about four pieces of steel bar approximately six metres long with a co-worker. The co-worker fell over which caused the injury. Mr Short consulted Dr H-E C Chen, general practitioner, on 3 March 2021 who described the injury as “right shoulder muscle strain”. Mr Short next consulted Dr Chen on 3 June 2021.
The applicant attended on a physiotherapist on 27 May 2021 for treatment of his right shoulder and back, and ceased work for the respondent that night following a meeting with the following representatives of the respondent: Kristine Dunell, Health and Safety Advisor and Wellbeing Co-ordinator; Rowan Woodrow, Senior Project Manager, and Jimmy Doyle, a site supervisor.
After consulting Dr Chen again on 7, 9, 10, 15 and 16 June 2021 the applicant came under the care of Dr Eric Lim, general practitioner, on 18 June 2021 who referred him for treatment to a physiotherapist for improvement of physical function, an orthopaedic surgeon Dr Gavin Soo, and a neurosurgeon, Dr Peter Khong.
On 16 June 2021 the applicant signed a claim form in which he described injury to his neck with pain radiating through his neck to his right shoulder and right arm. He was “operating a hoist” when he was injured and the cause of injury was claimed to be “Hauling heavy steel bins and scaffolding”.
On 25 August 2021 the respondent’s insurer, icare Insurance & Care NSW (icare) issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which it denied liability for the applicant’s claim pursuant to ss 4, 9A, 4(b), 14(2), 33, 59 and 60 of the 1987 Act. In that notice icare referred to a pre-employment questionnaire completed by the applicant in which he stated, inter alia, that he had never sustained any prior injury to his neck or back. The author of the notice then referred to the applicant’s attendance on Dr Chen on 27 February 2021, referred to in [3] above, and concluded that the insurer did not agree that the applicant sustained an injury to his right shoulder/upper extremity or neck/cervical spine as a result of his employment with the respondent.
The applicant’s solicitor sought a review of the s 78 notice dated 25 August 2021, in response to which icare issued a further notice to the applicant dated 9 September 2021 maintaining its denial of liability based on those sections of the 1987 Act previously referred to, except a defence of the claim under s 14(2), namely an allegation that Mr Short had engaged in serious and wilful misconduct. That allegation was withdrawn.
The proceedings were commenced by an Application to Resolve a Dispute dated 11 October 2021 (ARD) in which the applicant’s injury was simply described as “…a disease injury by way of gradual onset arising in the course of employment with a deemed date of injury of 24/05/2021”. Weekly benefits were claimed from 9 September 2021 together with past and future medical expenses pursuant to s 60 of the 1987 Act, but no claim for the cost of any future surgery.
At the telephone conference conducted on 8 November 2021 a direction was issued amending the description of injury in the ARD to insert “Injury to neck and right shoulder”, and the claim for s 60 expenses to include:

“The applicant claims the cost of and incidental to the surgery proposed by Dr Peter Khong in his report dated 29 September 2021 (ARD attachment p 70), namely C5/6 and C6/7 anterior cervical discectomy and fusion.”

The respondent was given leave to cross-examine the applicant on certain specified matters, the applicant was given leave to cross-examine the respondent’s witnesses Rowan Woodrow, Jimmy Doyle and Kristine Dunell on those matters, and the proceedings stood over for conciliation/arbitration.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) Did the applicant sustain injury arising out of or in the course of his employment with the respondent, deemed to have occurred on 24 May 2021 (s 4(b) of the 1987 Act)?
(b) Is the applicant entitled to an award of weekly benefits from 9 September 2021
(s 33 of the 1987 Act)?

(c) Is the applicant entitled to an award for past and future medical expenses, including the cost of surgery (s 60 of the 1987 Act)?

PROCEDURE BEFORE THE COMMISSION

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

The parties attended a conciliation/arbitration conducted by way of video conference on 22 December 2021. Mr S Moffet of counsel appeared for the applicant briefed by Mr K Sawyers. The applicant was present with his counsel and solicitor. Mr L Robison of counsel appeared for the respondent briefed by Mr D Kim. Representatives of the insurer also attended.

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;

(c) Application to Admit Late Documents (AALD) dated 7 December 2021 lodged by the applicant with the following attachments:

(i)handwritten clinical notes Muswellbrook Physiotherapy dated 27 May 2021, and
(ii)email correspondence from the applicant’s solicitor to the respondent’s solicitor serving such clinical notes;

(d) AALD dated 9 December 2021 lodged by the applicant with the following attachments:
(i)supplementary statement of applicant dated 7 December 2021, and
(ii)letter from the applicant’s solicitor to the respondent’s solicitor serving such supplementary statement;

(e) Controlled Border For Western Australia Directions dated 13 November 2020 issued under ss 67, 70 and 72A of the Emergency Management Act 2005 (WA);

(f) Controlled Border For Western Australia Amendment Directions (No 26) dated 23 June 2021 issued under ss 67, 70 and 72A of the Emergency Management Act 2006 (WA), and
(g) Controlled Border For Western Australia Amendment Directions (No 27) dated 27 June 2021 issued under ss 67, 70 and 72A of the Emergency Management Act 2005 (WA).

Oral Evidence

Oral evidence was given by the applicant and Rowan Woodrow, Jimmy Doyle, and Kristine Dunell in accordance with the leave referred to in [10] above. It is summarised to hereunder.

The applicant’s case on injury

The applicant has provided three statements, dated 12 August 2021[1], 5 October 2021[2] and 7 December 2021[3]. He gave brief oral evidence in chief in respect of the description of the hoist referred to at [45] of his first statement (“The hoist I used was a Maber, not an Alimak, which is different…”). He said that a Maber hoist is often referred to as an Alimak hoist.
[1] ARD p 14 (first statement). noting that page references in this Statement of Reasons are to those in the Commission’s electronic records.
[2] ARD p 3 (second statement).
[3] AALD 9 December 2021 (third statement).
Mr Short’s attention was then drawn to what Kristine Dunell said at [49] of her statement dated 28 July 2021[4], quoted to him. He denied saying “… my back’s all strapped up. It’s not a work related injury but I won’t be able to do any physical work”, or words to that effect.
[4] Reply p 193.
The applicant was then cross-examined on the contents of his second statement in respect of the incident on 27 February 2021 when he was working for Vari Group as a general labourer. Mr Short confirmed that in that incident he strained his upper back and hurt his shoulder, when carrying “about four pieces of re-bar”. He acknowledged that this statement was made after he had been informed by the respondent that it denied liability for his claim. He denied “being caught out in a lie”, or that he had “come clean” because he had been “found out”.
Mr Short was cross-examined on the answers he supplied to question [3] in in the
[5] Reply p 69.
Pre-Employment Health Assessment form he signed on 11 March 2021[5]. He said that when supplying answers to question 3 relating to “Musculoskeletal”, he did not disclose the injury he suffered when working for the Vari Group as he did not consider it an injury. He had only one day off work and was not an injury to his mind, not like the injury from which he was currently suffering. He had a sore muscle in his shoulder. This was common in the construction injury.
Mr Short confirmed his “No” answers to questions relating to neck injury or whiplash, and frequent backache and persistent backache. He said that these answers were not false.
The applicant was then cross-examined on what occurred on 27 May 2021 at the office on the respondent’s work site. He said that there was no meeting, but that he went to speak to Kristine (Dunell). He was not still suffering from pain in his upper back and right shoulder from the February injury. Rowan Woodrow and Jimmy Doyle were also present. Mr Short denied that he said to Ms Dunell “I have been at physio all afternoon…it is not a work injury”.
The applicant said that he had complained to Pece Stefanovski (“Pete”) of neck problems, but that he had not told him of neck problems since he started work for the respondent. He denied having shoulder problems before he started such work. He admitted that his employment with the respondent was expected to be short term.
The applicant was then asked about employment he sought in Western Australia following his expected cessation of work with the respondent. He said that he applied and obtained a job there but that “They kept delaying the start date”. He did not fly to Western Australia. He denied that he decided to make a claim against Downer when he failed to receive income from Western Australia.
The applicant denied the proposition that he had not received injury in the course of his employment with the respondent.
Pece Stefanovski has supplied a statement dated 4 August 2021[6]. He confirms that he was familiar with the applicant who was “…an Alimak operator/rigger like me”, and his understanding that Mr Short had made a claim for workers compensation in respect of an
[6] ARD p 10.
injury to his neck which he allegedly sustained in the course of his employment with “the insured” (the respondent) on 24 May 2021.
At [15]-[16] of his statement, Mr Stefanovski says:
“15. The claimant did complain to me that he was struggling doing the work and had pain in his neck and shoulder. About 2 or 3 weeks after he started on the job he was exhausted. This was from opening the Alimak door about 200 times a night at least. He struggled for the night and said his neck and right shoulder was sore and towards the end of the job he said his back was sore. I was also struggling because of my neck from the Alimak I had.
16. The Alimack doors were very stiff and hard to open. It was like lifting 40 to 50 kilos every time you had to open the door. We made enquiries to get it fixed but it fell on deaf ears. I was in pain too and still have some pain in my neck and shoulder from that job.”
Mr Stefanovski says later in his statement that the applicant complained about pushing the bins sometimes, that they both had to move bins and that he sometimes had problems doing this. He said that the applicant helped the scaffolders and was with them for many nights, work that he (Mr Stefanovski) could not do. He described this as “heavy stuff” that he was unable to do because of his hip replacement. He says that the applicant was employed as an Alimak operator but a rigger as well, and that when not busy they helped others with cleaning and the rest, “…but most of the time we were flat out”.

The respondent’s case on injury

Kristine Dunell was cross-examined on the contents of her statement dated 28 July 2021[7]. She said that she had provided all the evidence that she could in respect of the applicant’s claim for injury on 24 May 2021, and that Mr Short did not say anything about a specific event on that day. In respect of the work carried out by the applicant, Ms Dunell said that workers on the site could be required to perform heavy manual work within reason with the use of mechanical aids. She did not know if the applicant was required to drag heavily laden bins in and out of the hoist, but if that was the case, he should not have been doing it. She said that if the mechanics of a lift were not working, it could be heavy work operating the lift for some people, but the lift should have been repaired. Ms Dunell said that if scaffold trolley bins were full of building material, moving such bins if done by the applicant himself could be heavy work.
[7] Reply p 187.
Ms Dunell said that 27 May 2021 was the applicant’s second last day at work, and that he presented at the Downer office “stiff and in an awkward way”. She had a conversation with
Mr Short, and denied that he told her that his shoulder was “very painful”. He did say that he was unable to continue his duties, and that she was not expecting him to tell her that.
Ms Dunell could not remember seeing the applicant on the previous day, and denied that the applicant told her that his shoulder “…was fucked”. Mr Short did say to her that it was not work related, and that if he had said that it was work related, she would have asked him how it happened.
Ms Dunell said that Mr Doyle and Mr Woodrow were in the room when she was speaking to the applicant, but she could not confirm if Mr Woodrow overheard what was said between her and the applicant. She went and spoke to these two persons and Mr Woodrow joined the conversation. He would have heard “bits and pieces” of the conversation, and Ms Dunell explained to Mr Woodrow the situation that had occurred, and that the injury was not work related. However, she conceded that she had not included in her statement that she told
Mr Woodrow that the injury was not work related. Ms Dunell said that she put everything she could in her statement, and confirmed the veracity of that statement. Ms Dunell agreed that Mr Woodrow had given a statement in which he said the applicant’s claim was not a work related injury.
Ms Dunell said that the conversation she had with the applicant on 27 May 2021 was before the start of the night shift on that day, and that the applicant told her his shoulder was strapped. She accepted that he had attended the physiotherapist on that day.
Mr Woodrow was cross-examined on the contents of his statement dated 13 July 2021[8], in particular the evidence at [69] thereof in respect of the conversation between the applicant and Ms Dunell in the supervisor’s office. He said that he heard parts of the conversation, to the effect that Mr Short had been to the physio that day, that his shoulder was heavily strapped and that he had restricted movement therein. Mr Woodrow conceded that in giving his evidence he was relying on his statement as to what he remembered from that day, and that his statement was a more reliable record of what occurred than his oral evidence on the day of hearing. Mr Woodrow confirmed what he said at [70] of his statement, and that after Jimmy Doyle, that applicant’s supervisor, joined the conversation he (Mr Woodrow) joined the conversation to seek additional information. At that time he had no specific knowledge of the applicant having reported an injury or having sustained an injury, and wanted more information. He said that he questioned Ms Dunell and Jimmy Doyle about the circumstances in relation to the applicant. Mr Woodrow confirmed that the extent of his conversations with the applicant is recorded from [70] and [71] of his statement.
[8] Reply p 153.
Mr Woodrow was asked about the conversation he had with the applicant in the crib room before the start of the night shift, referred to at [71] of his statement, when Jimmy Doyle was also present. Mr Woodrow noted that work was assigned to the night shift other than to
Mr Short. He said that Mr Short told him he had been to physio on that day, and said he could not rule out that Mr Short said that his “shoulder was fucked”. Mr Woodrow also said that said when he asked Mr Short “what happened?” the reply was that it was sore from the weekend and that it was not work related. Mr Woodrow did not ask how it occurred, although he conceded that he could have asked this question. His greatest concern was whether
Mr Short was fit for the night shift.

Mr Woodrow said in his oral evidence that he specifically recalls Mr Short saying twice that the injury was not work related and that it was sore from the weekend, although he conceded that this evidence was not in his statement. He did not ask for specifics as to how the injury occurred, and denied that it was a “golden opportunity” to ask that question. He was only concerned to obtain additional information about the injury if it was work related.
Jimmy Doyle gave short oral evidence and confirmed the contents of his statement dated 14 July 2021[9]. When cross-examined he said that he supplied to the investigator who took the statement, Jill Burgess, all the information he had about the applicant’s neck and shoulder problems of 24 to 27 May 2021. Mr Doyle confirmed the conversation he had with the applicant on 24 May 2021, recorded at [10] of his statement. He conceded that evidence of the meeting with Mr Short, Ms Dunell and Mr Woodrow of 27 May 2021 at which he attended is not included in his statement. Mr Doyle said that he heard what was said at that meeting of 27 May 2021, and that Mr Woodrow was also in the office at the time.
[9] Reply p 165.
The contents of [9]-[12] of Jimmy Doyle’s statement dated 14 July 2021 are as follows:
“9.     I came to know about the injury on 27 May 2021, when he reported it to Kristine Dunell at the worksite. He told her he had been to the physio and was directed not to come to work and was unable to do any work that night. He said that it was non-work related.
10.    Fairwork became involved and said that the claimant reported the injury to me at work on 24 May 2021. The claimant did not report the injury to me that day. He said that day that he had a sore back from the day before the 24 May 2021, from some activities he did outside the workplace. I told him I had a sore back too and was getting Thai massage for it.
11.    The claimant worked on 25 and 26 May 2021.
12.    At no stage did he report an injury to me of the safety officer that he had an Injury that happened at work. We have a good reporting system in place where you have to take an injured worker straight to first aid and make a report.”

SUBMISSIONS

The submissions of the parties are recorded, a transcript of which can be obtained on request. They will not be repeated in full. In summary they are as follows:

Applicant - injury

The applicant submits that his claim is one for a disease of gradual onset incurred in the course of his employment with the respondent, deemed to have occurred on 24 May 2021, which was the last day he worked for the respondent. He submits that he freely admitted the event earlier in 2021 with his previous employer, which he did not class as an injury and was typical of the minor sort of injuries that are frequent occurrences in the construction industry. The consultation with Dr Chen on 3 March 2021[10] supports what he says about this incident. Dr Chen found that Mr Short had a full range of motion in the right shoulder, and gave as the reason for the visit at “Right shoulder pain”. The next visit to Dr Chen was on 3 June 2021, and the doctor was well placed to compare his condition after the first and second incidents. The effects of what occurred on 27 February 2021 had ceased by the time the nature and conditions of his employment with Downer caused him to suffer injury.
[10] ARD p 207.
The applicant worked night shift, as evidenced by his payslips attached to the ARD until 24 May 2021, and presented to Muswellbrook Physiotherapy on 27 May 2021, which is the next contemporaneous record in evidence following his last payslip. The applicant submits that the entries in the Initial Assessment and Treatment Notes made by the physiotherapist support his case that, while there was no incident in the course of his work, symptoms had been coming and going for the previous couple of weeks and were bad over the previous three to four days. His occupation was recorded as “hoist operator scaffolding”. This history of no particular incident is consistent with the history given to doctors, and not inconsistent with what was said to the respondent’s witnesses.
The applicant then refers to the clinical note of the consultation with Dr Chen on 3 June 2021, which he submits supports his case. He did not want to pursue a workcover claim at that stage but wanted to put the events behind him to be able to pursue high paying work at his next job in five weeks. Dr Chen records that there is a reduced range of motion in the right shoulder, which contrasts with the full range of motion found by her at the consultation of 3 March 2021.
The applicant then refers to the consultation with Dr Chen dated 7 June 2021[11] in which the applicant is recorded as having seen a physiotherapist who was concerned about right cervical radiculopathy and noted that a CT scan of the cervical spine was to be performed that afternoon. At the next consultation with Dr Chen on 9 June 2021[12] an MRI scan of the cervical spine is recommended.
[11] ARD p 208.
[12] Reply p 121.
The applicant’s attendance at Royal Prince Alfred Hospital on 12 June 2021[13], and his claim form for compensation referred to at [6] above, are submitted to be consistent with his claim that he suffered a disease of gradual onset, and that he experienced extreme pain while moving bins on 24 May 2021.
[13] Reply p 89.
The applicant then refers to the subsequent radiological investigations of his condition in evidence, the expert medical opinion tendered from Dr Soo and Dr Phan and his attendance at South Sydney Physiotherapy in the weeks to 26 June 2021[14] in support of his claim for injury.
[14] ARD p 139.
The applicant submits that the concession made by Ms Dunell that she had not included in her statement that she told Mr Woodrow (and Jimmy Doyle) that the injury was not work related significantly affects her credibility, and is consistent with the applicant’s denial that he said to Ms Dunell that his injury was not work related. The only consistency is that the applicant asserts that, at that stage, he did not wish to make a claim for workers compensation at that stage.
The applicant submits that he was engaged in heavy physical work for 10 hours a day, six days a week and that this work is consistent with the gradual onset of injury in the form of extreme aggravation of the cervical spine in the course of his work for the respondent. There is no other evidence to indicate any other activity that would bring on such a condition.
The applicant submits that the Commission would not accept that that he said to Ms Dunell, Mr Woodrow, or Jimmy Doyle that his injury was not work related, and that even assuming it was said, it defies credibility that those witnesses, in particular Mr Woodrow, did not follow up such statement with further enquiry. Even if the applicant did say this, which is denied, it is meaningless and of no weight.
The applicant submits that the evidence of Messrs Dunell, Woodrow, and Doyle that the applicant said that his injury was not work related shows a startling similarity, displaying the same phraseology and is not such as would normally be used by them. This casts doubt upon the credibility of these witnesses and constitutes an attempt to derail what is otherwise a strong applicant’s claim for injury. The applicant submits that he did not make such a statement.
The applicant submits that, in the final analysis, it is a medical issue as to whether he suffered injury in the course of his employment with the respondent. The doctors whose evidence he relies upon have taken a history of the heavy work in which he was engaged in that employment, and there is nothing to contradict that evidence.
The applicant refers to the evidence of telephone conversations between the investigator Jill Burgess, and Darren Gray[15], John Soulsby[16] and Dan Turner-Smith[17], submitting that any suggestion therein that the applicant was involved in an incident of wrestling outside work should be rejected. Such evidence was weaker than first hand hearsay, purely conjecture and was not covered by any written signed statement by those persons. In any event, there was some support in that evidence as to the heavy nature of the applicant’s work for the respondent.
[15] Reply p 206.
[16] Reply p 208.
[17] Reply p 210.

Respondent - injury

The respondent submits that the applicant’s credit is at the centre of the current dispute between the parties, and that the three witnesses who were cross-examined by the applicant have given a full and true account of what occurred in respect of the claim. The respondent rejects the submission that these witnesses should have made further enquiry of the applicant once they were told by him that his injury was not work related, and asks “Why would they need to do that?”. The relevant consideration for those persons was whether or not the applicant was fit for employment. The fact that the worker injured himself outside of his employment with the respondent was not “bombshell information” as submitted by the applicant, and did not necessitate further enquiry.
Kristine Dunell, Rowan Woodrow, and Jimmy Doyle all gave evidence that the applicant said that he was not injured at work, and there was no evidence of collusion in preparation of their evidence, as suggested by the applicant in submissions. Nothing was put to these witnesses that this had occurred (see rule in Browne v Dunne[18]), nor was there cross-examination of these witnesses as to the language used in their statements. In any event, it is apparent that those statements were obtained by an investigator, not a solicitor. The respondent reject’s the applicant’s submission that it was “extraordinary” that the three witnesses would turn up and say the same thing.
[18] (1893) 6 R67.
The applicant submits that the applicant is not a witness of truth, and that he only disclosed the prior injury he suffered before he joined the employ of the respondent once liability for his injury was denied by the respondent’s insurer in the s 78 notice.
The respondent relies on the incorrect answers supplied by the applicant in the pre-employment questionnaire he answered as to injury to the body parts the subject of the current claim. The applicant’s answer to the question put to him in respect of the prior injury was unsatisfactory, that is that the injury was not an “injury” in lay terms. Kristine Dunell was quite clear in her evidence as to what the applicant told her, and this evidence should be accepted. Similarly, Rowan Woodrow was straightforward in giving his evidence as to what the applicant said to him and told the truth.
The respondent submits that there was no reason to require Pece Stefanovski for cross-examination as submitted by the applicant. His evidence is consistent with the respondent’s case that the applicant came to the respondent’s employ as an injured man. The situation would be different if the applicant had been a long term employee of the respondent. According to Mr Stefanovski, Mr Short complained to him of experiencing problems in his neck and shoulder, and being exhausted, after about two or three weeks of employment by the respondent. This is in the context of the commencement of the applicant’s employment with the respondent on 17 March 2021.
The respondent draws attention to the Controlled Border For Western Australia Directions and Amended Directions issued under ss 67,70 and 72A of the Emergency Management Act 2005 (WA). It submits that, having regard to those Directions, it was not feasible for the applicant to contemplate a move to Western Australia to take up employment and that any evidence from the applicant to this effect should be ignored.
The respondent submits that neither the opinions of Dr Peter Khong in his report dated 4 August 2021[19] nor Dr Bhishampal Singh in his report dated 27 September 2021[20] as to causation of the applicant’s injury should be accepted. Dr Khong does not record a history of any injury suffered in the applicant’s prior employment. In respect of the opinion of Dr Singh, who finds that the nature and conditions of the applicant’s employment have resulted in an aggravation of any pre-existing asymptomatic condition of the neck, the respondent notes that this is not the injury relied upon by the applicant, although the previous injury is noted by the doctor.
[19] ARD p 108.
[20] ARD p 117.
The respondent submits that the opinion of Dr John Sheehy in his report dated 24 August 2021[21] is incorrect and should not be accepted. The respondent notes the opinion of Dr Breit in his report dated 2 August 2021[22] that if the work described to him by the applicant is accepted, there is a relationship of the injury to employment. He finds the applicant has cervical spondylosis but no shoulder injury, and that pain is referred from the applicant’s neck. The respondent relies however on the later report of Dr Breit dated 23 August 2021 following a file review[23], in which the doctor prefers the description of the applicant’s employment put forward by the respondent. This, coupled with the denial by the applicant of his pre-employment injury, causes the doctor to conclude that the applicant’s employment with the respondent was not a significant contributing factor to the injury now claimed.
[21] ARD p 94.
[22] Reply p 197.
[23] Reply p 203.
The respondent returns to the quite clearly incorrect answers supplied by the applicant in the Pre-Employment Health Questionnaire to submit that the applicant has not discharged the onus on him to show that he suffered injury arising out of or in the course of his employment with the respondent.
The respondent does not make any particular submission in respect of the applicant being involved in wrestling activity outside his employment, but submits that this evidence should be considered along with all of the other evidence when considering whether the applicant has discharged the onus of proof on him.
The respondent also makes brief submissions on the applicant’s capacity for work, and the nature of the surgery sought by him, in the event that there is an award in his favour on the issue of liability for injury. These will be considered hereunder in such event.

Applicant in response

The applicant submits that the respondent cannot simply point to the alleged error in the Pre-Employment Health Questionnaire on which to base its case that the applicant should be denied compensation in this case. The applicant submits that such a document should be taken with a “pinch of salt”, particularly in the context of the type of employment which he was seeking and the unlikelihood of him being offered a job if a prior work injury was disclosed. The applicant was a construction worker, and the question is posed “What is an injury?” for such a worker. In any event, the applicant submits that due to the minor nature of that prior injury, it was understandable that he would answer the question in respect of prior injuries in the way that he did.
The applicant repeats his submission that the three witnesses called by the respondent say the same thing in respect of the “non-specific” evidence of the applicant. The applicant’s evidence of the non-work injury in February 2021 is credible and should be accepted.
The applicant submits that the fact that he was engaged in heavy work for the respondent is not contradicted by the respondent’s witnesses, a fact accepted by Dr Sheehy in giving his opinion, who discounted any effect of the previous injury in February 2021. The history recorded by Dr Sheehy provided a “fair climate” for the opinion given by him in his report.
The submission by the respondent that, because of the Western Australian legislation the applicant could not in any event go to Western Australia and that for this reason his evidence in this regard should be disregarded, should be rejected. This is because the applicant was not fit to contemplate employment in Western Australia.
The applicant submits that the surgery claimed by him is reasonably necessary as a result of the claimed injury. This issue will be addressed hereunder if appropriate.

FINDINGS AND REASONS

Injury

The history of the incident in which the applicant was involved on 27 February 2021 whilst in the employ of Vari Group is set out in the clinical note of Dr Chen as follows:
“Surgery consultation
Recorded by: Dr Hsiao-En Cindy Chen Visit date: 03/03/2021
Recorded on: 03/03/2021
Right upper back/posterior pain since Sunday 28/02/2021 morning- woke up with a lot of pain.
He was carrying a lot of heavy steel (6m bundle of steel) on Saturday 27/02/2021 on right shoulder and walking down
gravels
His workmate walking behind him (carrying the steel together) fell over, pulled his right shoulder/strained right upper
Back”

On examination Dr Chen found no numbness or tingling in both hands and arms, full range of motion in the right shoulder, tenderness in the right scapula area and no midline spine tenderness. The reason for the visit was recorded as right shoulder pain. Management was recorded as follows:
“- recommend physio
- rest, analgesia, heat pack
- work boss has mentioned "capacity certificate"--> discussed that is workscover, advice him to discuss further with his
boss. We will need claim number if he wants to go through with workscover he said he's not keen to go through workscover at this stage” [sic]

Dr Chen issued a medical certificate from 3 March 2021.

The applicant says that he took one day off work, and says that he was fine and ready to go back to work after his rest day which he did. There is no evidence to suggest that this was not the case, or that he underwent the physiotherapy treatment suggested by Dr Chen.
The applicant signed the Pre-Employment Questionnaire on 11 March 2021 and answered “No” to a large number of questions under the heading:
“Do you currently have OR have you EVER had any of
The following (Answer every question)
Q3 Musculoskeletal – Have you ever had:”
These questions included:
(a)    Neck injury or whiplash;
(b)    Arm injury or whiplash;
(c)    A disk injury in the back or neck;
(d)    Have you ever attended a Physio/Chiropractor;
(e)    Back injury, and
(f)    Any other bone or joint injury.

The respondent concedes that, while “shoulder” is not specifically referred to, the ambit of the questions was sufficient to indicate that the applicant should have revealed the right shoulder pain he suffered on 27 February 2021. I agree with that submission. However, I can also accept the applicant’s explanation for not revealing this “injury”. He did not regard it as such, and says that such minor injuries are common in the construction industry in which he worked. Further, I accept the submission that, if it had been revealed, Mr Short’s chances of obtaining employment with the respondent would have been diminished. In this context, the applicant’s statement that “I did not have any pre-existing injuries when I started working with the insured involving my back and shoulder area where I now have pain” at [15] of his statement dated 12 August 2021 is understandable.
Further, I do not accept the respondent’s submission that Mr Short only revealed the injury in his second statement (dated 5 October 2021) after he had been caught out in a lie after icare issued its s 78 notice dated 25 August 2021 and review notice dated 9 September 2021.
The applicant was examined by Dr Sivam Karthigasu on 11 March 2021 who produced a “Confidential Medical Report” in evidence[24]. The applicant’s answers to Q3 referred to above at [69]-[70] are replicated in the medical report. Dr Karthigasu found a normal range of motion in the neck and shoulder, expected for the applicant’s age. Upper limb fitness was assessed and sustained above head level reach was assessed at “+ 2 min” with no asymmetry, pain, or fatigue. The applicant was noted to be left hand dominant. The doctor’s comments on manual handling were:
“completed 20kg MH per email/ booking request
completed the lift with ease”
[24] Reply p 43.

The applicant commenced work with the respondent on 17 March 2021. His co-employee, Pece Stefanovski has supplied a statement dated 14 August 2021 in which he records that the applicant complained to him that he was struggling doing the work and had pain in his neck and shoulder. He said that after about two or three weeks on the job he was exhausted. Mr Stefanovski says that this was from opening the Alimak door about 200 times a night at least and that he was also struggling because of this. He says that the applicant was employed as an Alimak operator and a rigger as well, which was not the case with himself because of a hip replacement. He also says that when he and Mr Short were not busy, they helped others, but most of the time they were flat out.

In his first statement (dated 12 August 2021) the applicant gives evidence that the doors of the hoist he was operating were defective, being hard to open and close all the time. It took “them” (which I infer refers to the respondent’s employees) about five weeks to sort out. This in my view is consistent with the problems which the applicant complained of to
Mr Stefanovski early in his employment.
At [34]-[40] of his first statement the applicant refers to him doing extra work, in addition to operation of the hoist, about four to five weeks after he started with the respondent. From the description supplied, this appears to be moderate to heavy physical work.
At [33]-[34] of his statement dated 13 July 2021[25] Mr Woodrow described the applicant’s duties as follows:
“33. In his role the claimant's duties included Alimak driver, rigger duties, dogging cranes, rigging loads in and out of air heaters, TA assisting tradesman, positioning and installing structural steel, mobilising and demobilising equipment and materials from the work front and operating various hoists.
34. The equipment and machinery the claimant used on the job was the Alimak, air hoists, manual chain blocks for rigging, pushing trolleys, minimal rigger style tools such as crow bars and aligning tools.”
[25] Reply pp 156-157.
Kristine Dunell said in her evidence that workers on the site could be required to perform heavy manual work within reason with the use of mechanical aids. She did not know if the applicant was required to drag heavily laden bins in and out of the hoist, but if that was the case, he should not have been doing it.
I accept the applicant was required to engage in moderate to heavy physical work in the course of his duties with the respondent.
At [55] of his first statement the applicant says:
“55. Like I said, the week before 24 May 2021, I was in a bit of pain here and there and by the time we got to the 27th it was not loosening up and getting progressively worse and quite painful by the Thursday. By then the pain was getting strong. The pain I was getting was in my back on the right-hand side on top of my shoulder blade and near my spine. It was radiating out through my right shoulder. Then by Monday (25 May 2021) after I did some work it started flaring up.”
The applicant then goes on to refer to his visit to the physiotherapist at Muswellbrook Physiotherapy on 27 May 2021. He says that he saw her about lunch time and obtained pain killers and anti-inflammatories (Neurofen) and started taking those.
I accept the applicant’s submissions on the contents of the clinical note of the applicant’s attendance at Muswellbrook Physiotherapy on 27 May 2021. It is apparent from that note that he told the physiotherapist the following:
(a)    he was a hoist operator involved in scaffolding;
(b)    his symptoms had been coming and going for a couple of weeks;
(c)    there was no incident;
(d)    he had some tightness in his cervical spine (“C/S”). In respect of this entry, I note that it could be interpreted as “L/S”. However when one looks at the body diagram in the note, it is clear that the physiotherapist is referring to the right shoulder and neck area. This is confirmed in my view by a later entry on the second page of following “PDx:” of “upper T/S irritation + - n root irritation C/S”;
(e)    his symptoms were bad in the last three to four days;
(f)    he had not seen a doctor;
(g)    aggravating factors were constant standing straight “C/S (illegible) – ext”, and
(h)    pain was 24/24.
Under “Observation” active movement of the cervical spine was recorded as minimal
         extension, one half of right and left rotation and satisfactory flexion. It appears that the
         physiotherapist taped the right shoulder, gave a warning and suggested physiotherapy in
         Sydney.
The respondent also puts the applicant’s credibility in issue in respect of his evidence as to what he said to or in the presence of Messrs Dunell, Woodrow, and Doyle when he went to the supervisor’s office to speak to Kristine Dunell.
It is quite clear that Mr Woodrow was present in supervisor’s office, talking with Jimmy Doyle in the background. He confirms this in his statement and says that he overheard the applicant say that he had been to the physio on that day, was heavily strapped, had restricted movement and asked Ms Dunell that she advise Jimmy Doyle that he was unable to undertake his full duties that night. “He seemed pretty stiff and sore at the time”.
Jimmy Doyle in his brief statement dated 14 July 2021 appears to either have overheard the conversation or been told about it by Ms Dunell. Relevant parts of his statement are set out above at [36]. Paragraph [9] could be interpreted in either way.
In any event, I do not accept the applicant’s submission that Kristine Dunell, Rowan Woodrow, and Jimmy Doyle somehow colluded to give evidence that the applicant told them that his injury was not work related. This suggestion was not put to them in cross-examination, and in my view is highly improbable. Nor do I accept that either Ms Dunell or
Mr Woodrow should have made further enquiry of the applicant as to how he injured himself when he told them that the injury was not work related. It is entirely reasonable that they did not pursue further enquiry of Mr Short once they were informed that the injury was not work related. Their concern was as to whether the applicant was fit to work on the night shift about to commence. Quite clearly he was not, and was not allocated any duties at the subsequent pre-start meeting. Mr Woodrow describes his exchange with the applicant when he attended the pre-start meeting as follows:
“73. 1 told the claimant that I was concerned as he had restricted movement and appeared to be in some pain. I advised that he could not attend work with a pre-existing injury, as there was a risk that he could further aggravate the injury, and he had been advised by the physic not to work. He again agreed that he would not be able to perform his duties that night. He said he could maybe drive the Alimak, but I said he was not in a fit state to be at work and we didn't need that role that night. We needed guys tidying up and packing containers.
74. He looked stiff and sore enough that even standing on site for 11 hours would hurt him. I told him my expectation would be that he would require a medical certificate clearance for full duties before returning to site, so he should go home. However, as it was Thursday night and he was planned to finish on Saturday night, I discussed with him the possibility of recovery and not getting a clearance before his last shift. He agreed that it was unlikely he would be fit for work before his last shift, so I advised that it would be best to collect his tools and gear and demobilise from the site that night. The tone of this conversation was relaxed, and he agreed that he would not be able to perform his duties for the remainder of the week. At the end of the conversation I thanked him for his work on the job, and we shook hands.”

The applicant says in his first statement that when he went to see Kristine Dunell and discussed his shoulder, that “I just wanted to do hoist duties and not all the other work they were getting me to do. She said she would talk to Jimmy”. At the pre-start meeting, Mr Short was not allocated any work, so he “…knew something was up”.[26] He says that Kristine told him that there was no more work for him and that he was not needed. Mr Rowan and Jimmy Doyle were in the background. Jimmy said that he could go home, and “They sacked me…”.
[26] ARD p 24.
I find that the applicant did say to Ms Dunell in the presence of Mr Woodrow, and probably Jimmy Doyle, at the meeting in the supervisor’s office before the pre-start meeting that his injury was not work related. His motivation for doing so could have been that he was looking for some light duties on the night shift about to start, or possibly thereafter. He was a person who was keen to pursue work after the end of his employment with the respondent. I do not accept the applicant’s evidence that he did not speak to Rowan Woodrow about his injury only after “…they sacked me and he shook my hand…” I accept Mr Rowan’s evidence set out in [86] above.
This finding as to what was said at the meeting with Ms Dunell, Mr Woodrow and Jimmy Doyle does not mean that the applicant is disentitled from recovering the compensation which he seeks in the proceedings. It means that surrounding evidence must be closely scrutinised. I agree with the applicant’s submissions in this regard that the issue must be largely determined relying on the medical evidence.
The next recorded consultation with a medial practitioner following 27 May 2021 is that with Dr Chen on 3 June 2021 referred to at [40] above. Dr Chen has provided a medical report dated 27 September 2021 which is quoted in full as follows:
“Mr. Danniel Short first saw me on 03/03/2021 for his tight posterior shoulder pain after carrying heavy steel on 27/02/2021. He sustained right shoulder muscle strain as his workmate who was carrying the steel with him fell and pulled his right shoulder. It was an once off visit for this condition and his pain subsequently resolved after taking a day of resting.
He later presented in June 2021 with a completely different presentation from his previous visit. He developed pain in bis right shoulder, right arm, and right hand with numbness sensation after his work on 24/05/2021 . His pain was not settling with pain relief and physiotherapy. Further investigations were made and he decided to pursue worker's compensation on 16/06/2021.
In my opinion his presentation on 03/03/2021 was not related to his injury on 24/05/2021 (his current worker's compensation case). Please refer to my consultation notes for details.”[27]
[27] ARD p 76.

The applicant underwent a CT scan of his cervical spine on 7 June 2021[28], and Dr Chen commented on this investigation at the next consultation on 9 June 2021 as follows:
“Correlation between imaging and the patient's pre scanning pain diagram is suggestive of right C6 and/or C7 radiculopathy which would correlate with the bilateral foraminal stenosis seen at C5/C6 and C6/C7. MRI recommended for further assessment.”[29]
[28] ARD p 147.
[29] ARD p 209.
The applicant underwent an MRI scan of his cervical spine on 22 June 2021 requested by
[30] ARD p 140.
Dr Lim[30]. The clinical history is recorded therein as “Ongoing neck pain with radicular symptoms. Pain on the right”. This revealed “…significant encroachment on the right exiting nerve root at the level C6/7”.
Dr Eric Lim provided a report dated 1 July 2021 as the applicant’s then nominated treating doctor, noting the initial consultation with him on 18 June 2021. His diagnosis was:
“Cervical spine radiculopathy, bilateral C5-7 foraminal stenosis, C2-4 small disc bulge (CT 6/2021); Partial thickness tear of R) subscapularis, tendinopathy of R) supraspinatus tendon (U/S 6/2021)”[31]

The applicant had also undergone an ultrasound of his right shoulder on 17 June 2021.[32]
Dr Lim referred the applicant to Dr Soo and Dr Khong.

[31] ARD p 136.

[32] ARD p 145.

Dr Khong, neurosurgeon, provided a report to Dr Lim on 2 July 2021[33] with the benefit of the results of the CT scan dated 10 June 2021 and MRI scan dated 22 June 2021. His Impression and Management was recorded as follows:
“Mr Short presents with progressive neck pain and right arm pain in a C7 myotomal pattern as a result of his work as a hoist operator. His MRI demonstrates cord compression at C5/6 and C6/7 with left sided foraminal stenosis at C5/6 and bilateral foraminal stenosis at C6/7. He had a right C7 perineural injection which helped with his pain for a few week. He experienced an exacerbation of pre-existing degenerative changes as a result of his work. His work also likely accelerated the degenerative changes in his cervical spine. I have recommended ongoing physiotherapy and analgesia in the first instance in an attempt to hold off surgery. He could try hydrotherapy as well. If his pain does not improve significantly he is likely to require a C5/6 and C6/7 anterior cervical discectomy and fusion. I will review him in a month to follow his progress.”
[33] ARD p 134.
In a later report dated 29 September 2021 headed “REQUEST FOR SURGERY” Dr Khong recommends surgery as necessary because of four months of persistent symptoms and the unlikelihood of improvement or the regaining of significant function with surgery. He recommends a C5/6 and C6/7 anterior cervical discectomy and fusion.[34]
[34] ARD p 72.
Dr Soo provided a report to Dr Lim dated 26 July 2021 following a telehealth consultation with the applicant on that day. That report appears to principally address the right shoulder condition, and refers to the ultrasound of the right shoulder dated 17 June 2021. Dr Soo says that he would like to see Mr Short in his rooms once the Covid situation eases and in the meantime recommends non-surgical measures including physiotherapy, hydrotherapy, and pain management.[35]
[35] ARD p 117.
Dr Robert Breit, orthopaedic surgeon, examined the applicant at the request of the respondent’s solicitors on 29 July 2021 and produced a report dated 2 August 2021.[36]
[36] ARD p 111.
Dr Breit does appear to have had access to the CT scan of the cervical spine dated 7 June 2021 and the ultrasound and x-ray scans of the right shoulder dated 17 June 2021, but the report of the MRI scan of the cervical spine does not appear in the list of documentation provided in his report. The reports of Dr Eric Lim dated 1 July 2021 and Dr Peter Khong dated 2 July 2021 are included. The fact that Dr Breit did not have access to the MRI scan or a report thereon is confirmed by Mr Short in his second statement dated 5 October 2021.
Dr Breit could not determine whether or not the work description provided to him was correct despite the statements provided but, when asked to advise the extent to which the worker’s present condition was attributable to:
(a)    the applicant’s previous employment;
(b)    any prior injuries or pre-existing conditions , or
(c)    the applicant’s employment with the respondent, said
“His cervical spondylosis is long standing and predates the commencement of employment with your insured. It may have been aggravated bearing in mind my comments in question 5.”
(which question related to the work description provided to him).
In his report dated 23 August 2021 following a file review Dr Breit said:
“The General Practice Notes indicate a prior presentation of the same complaints
from an episode which was not claimed through workers compensation and
furthermore a short time later in a pre-employment assessment he denies injury. It is claimed that he had a full range of shoulder movement, that is possible noting his GP found a full range and his current range. Had he indicated an injury only a short time previously he would be unlikely to get the job.
There is obvious disparity between the claims regarding the nature and conditions of his employment between Mr Short and the statement of others.
I cannot indicate which version is correct however I prefer that from the ‘others’. I
cannot overlook the injury pre-employment. The injury was denied in the preemployment assessment, he denied any other injuries when I saw this gentleman and the similarity in complaints and physical findings is such that in my opinion employment with the insured was not a significant contributing factor.
Consequentially the treatment that I previously suggested although appropriate is not reasonably necessary because it is not related to a work injury.”[37]
[37] ARD p 100.

I do not accept this opinion of Dr Breit. I have found that the nature and conditions of the applicant’s employment with the respondent were moderate to heavy, and I accept the explanation given by the applicant for the answers he supplied in the Pre-Employment Health Assessment Questionnaire. I also accept the opinion of Dr Chen, who was the doctor in the best position to comment upon the applicant’s presentation to her on 3 March 2021 compared with that on 3 June 2021; that is, the latter presentation was completely different from the former. Dr Chen’s opinion is that the presentation on 3 March 2021 was not related to his injury on 24 May 2021.
Dr John Sheehy, neurosurgeon, examined the applicant at the request of the respondent’s solicitors on 18 August 2021 and produced a report dated 24 August 2021.[38] Dr Sheehy had access to the report of the MRI scan of the cervical spine dated 22 June 2021 and the report of Dr Peter Khong dated 2 July 2021. The doctor had a history of the injury dated 27 February 2021 as follows:
“There was an injury occurring carrying bundles of steel on his right shoulder and
walking down a gravel pathway a few days prior to 27/02/2021. He experienced neck and right shoulder pain and was away from work only for one day and then recovered and was certified fit to return to work by his general practitioner.”

Dr Sheehy did not examine the applicant as the report was prepared by Zoom. He had the benefit of Dr Khong’s examination which found no abnormality of tone, power, or reflexes in the upper limbs. Dr Sheehy found that Mr Short’s condition was not attributable to his previous employment, in that there was no brachialgia during his previous employment. He said that “The MRI describes a disc disruption rather than any significant pre-existing condition affecting the C6/7 foramina”, and noted that the injury occurred during the time the applicant was undertaking heavy physical work with the insured employer, Downer.
Dr Sheehy expressed the opinion that on the balance of probabilities, the applicant’s employment with the employer was the main contributing factor to the disruption of his C6/7 disc.
[38] ARD p 94.

In respect of surgery Dr Sheehy said:
“He is symptomatic from the disc disruption from C6/7 and it would be
reasonably necessary for him to have a decompression of his right C7 nerve root
either via an anterior or a posterior approach. C5/6 surgery is not necessary.
There is no right C6 compression.”

The applicant’s case is that he suffered a disease of gradual onset incurred in the course of his employment with the respondent, deemed to have occurred on 24 May 2021. That is consistent with the opinion of Dr Sheehy and with the findings of Dr Chen. It also consistent with the diagnosis of Dr Lim in his report dated 18 June 2021. Dr Khong found that the applicant experienced an exacerbation of pre-existing degenerative changes as a result of his work as opposed to the finding on injury by Dr Sheehy referred to in [101] above. That may be a difference between the doctors on the interpretation of the MRI scan. The applicant presented his case on injury on the basis of the diagnosis of Dr Sheehy. I accept the opinion of Dr Sheehy and find that the applicant sustained injury to his cervical spine arising out of or in the course of his employment, deemed to have occurred on 24 May 2021. That is a disease injury contracted in the course of his employment which was the main contributing factor to contracting the disease (s 4(b)(ii) of the 1987 Act). The respondent made no submissions that, in the event that there was a finding of injury in favour of the applicant, his employment was not the main contributing factor to contracting the disease. Having regard to my findings as to the nature and conditions of the applicant’s employment with the respondent and the circumstances in which he suffered his injury, I so find.

Treatment

The respondent concedes that, in the event that there is a finding in the applicant’s favour on the issue of injury, it could not submit that surgery proposed on his cervical spine is not reasonably necessary. It does however highlight the differing opinions of Dr Khong and
Dr Sheehy as to exactly what surgery is reasonably necessary. Dr Khong proposes a C5/6 and C6/7 anterior cervical discectomy and fusion, whereas Dr Sheehy proposes decompression of his right C7 nerve root either via an anterior or a posterior approach. He says that C5/6 surgery is not necessary as there is no right C6 compression.

Dr Khong is the treating neurosurgeon who first saw the applicant on 2 July 2021 with the benefit of the MRI scan dated 22 June 2021. He says in his report of that date that the scan reveals degenerative disc disease at C5/6 and C6/7, canal stenosis and left sided foraminal stenosis at C5/6 and canal stenosis and bilateral foraminal stenosis at C6/7. From his report dated 29 September 2021[39] which contains a request for surgery, it is apparent that
[39] ARD p 72.
Dr Khong continued to see the applicant up until that time, when he reported worsening bilateral neck pain, worse on the right, and other significant symptoms. The main problem was neck pain, and he was not getting any relief from physiotherapy. At the conclusion of the report he made the recommendation for the surgery. In view of Dr Khong’s ongoing treatment of the applicant until the date of this last report and the fact that he is the treating neurosurgeon, I think that his opinion as to the nature of surgery proposed should be accepted and find that the surgery proposed by him is reasonably necessary as a result of the injury deemed to have occurred on 24 May 2021.
There will be an award in favour of the applicant pursuant to s 60 of the 1987 Act, including the cost of the surgery referred to in [105] above.

Weekly benefits

In the event of a finding in favour of the applicant on the issue of injury, the respondent did not submit that he would not be entitled to an award of weekly benefits in his favour. It did however submit that there should be a reduction in the quantum of such benefits presumably due to a degree on incapacity resulting from the injury sustained by the applicant on 27 February 2021, and on the basis of his complaint to Mr Stefanovski of being “exhausted” in the first weeks of his employment with the respondent. However the respondent was not prepared to nominate the degree by which any award of weekly benefits should be reduced.
It is quite clear from all of the medical evidence, including that of Dr Breit and Dr Sheehy, that the applicant has a significant degree of incapacity for work. He has only worked manual occupations in the construction industry operating cranes, acting as a dogman and rigger. The nature of his work for the respondent was similar and of a moderate to heavy nature. In my view, and in the absence of any submission from the respondent to the contrary, I find that the applicant has no current work capacity. That is, a present inability arising from injury such that he is not able to return to work, either in his pre-injury employment or in suitable employment.
The pre-injury average weekly earnings (PIAWE) claimed by the applicant in the ARD are $2,254.60, which is the maximum weekly compensation amount prescribed in s 34(1) of the 1987 Act for the period from 1 April 2021 to 30 September 2021. The applicant claims weekly benefits from 9 September 2021 based on this rate. Neither at the telephone conference on 8 November 2021 nor the conciliation/arbitration on 22 December 2021 did the respondent raise an issue as to the quantum of weekly benefits sought by Mr Short, apart from that referred to in [107] above. Accordingly there will be an award for weekly benefits in favour of the applicant pursuant to ss 36 and 37 of the 1987 Act based on a PIAWE of $2,254.60.

SUMMARY

The applicant sustained a disease injury to his cervical spine contracted by him in the course of his employment with the respondent, deemed to have occurred on 24 May 2021.

The applicant’s employment with the respondent was the main contributing factor to contracting the disease.
The applicant has had no current work capacity since 9 September 2021.

The applicant’s PIAWE are $2,254.60.
The respondent is to pay the applicant weekly compensation at the rate of $2,141.87 per week as adjusted from 9 September 2021 to 6 December 2021 pursuant to s 36 of the 1987 Act and thereafter at the rate of $1,803.68 per week as adjusted pursuant to s 37 of the 1987 Act.
The surgery proposed by Dr P Khong, namely C5/6 and C6/7 anterior cervical discectomy and fusion, is reasonably necessary as a result of injury deemed to have occurred on 24 May 2021.
The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the 1987 Act, including the costs of and incidental to the surgery referred to in [115] above.

[2022] NSWPIC 31

24 January 2022