Silwal v Crown Sydney Gaming Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Silwal v Crown Sydney Gaming Pty Ltd [2025] NSWPIC 437
APPLICANT:	Smriti Silwal
RESPONDENT:	Crown Sydney Gaming Pty Ltd
MEMBER:	Anne Gracie
DATE OF DECISION:	27 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for injuries to neck, left shoulder, and right shoulder; medical and treatment expenses pursuant to section 60 and lump sum compensation pursuant to section 66; consideration of injury and causation; consideration of whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to section 60; Kooragang Cement Pty Limited v Bates, Department of Education v Ireland, Nguyen v Cosmopolitan Homes, and Briginshaw v Briginshaw considered; Held – pursuant to section 4(b)(ii) the applicant has sustained an injury to her left shoulder, right shoulder, and cervical spine during the course of her employment with the respondent; pursuant to section 60 the past medical expenses claimed by the applicant are reasonably necessary treatment expenses as a result of the injury sustained by the applicant; matter referred to the President of the Personal Injury Commission for referral to a Medical Assessor for determination of whole person impairment.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. Pursuant to s 4 (b) (ii) of the Workers Compensation Act 1987 (the 1987 Act) the applicant has sustained an injury to her left shoulder, right shoulder and cervical spine during the course of her employment with the respondent, employment being the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. 2. Pursuant to s 60 of the 1987 Act, the past medical expenses claimed by the applicant are reasonably necessary treatment expenses as a result of the injury sustained by the applicant with a deemed date of injury of 9 August 2023. 3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321A of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) date of injury: 9 August 2023 (deemed for the purpose of the claim pursuant to s 66 of the 1987 Act); (b) body systems/parts: cervical spine, right upper extremity (right shoulder) and left upper extremity (left shoulder), and (c) method of assessment: WPI. 4. The documents to be reviewed by the Medical Assessor are: (a) application to resolve a dispute and attached documents; (b) respondent’s reply and attached documents; (c) application to lodge additional documents and attached documents filed by the applicant on 17 July 2025, and (d) application to lodge additional documents and attached documents filed by the respondent on 23 July 2025. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Smriti Silwal, the applicant commenced work with Crown Sydney Gaming Pty Ltd, the respondent, as a food and beverage attendant in March 2022. The applicant is 28 years old.
The applicant’s work with the respondent involved holding food and beverages on a tray at shoulder height and serving customers. The applicant also had to make drinks and coffee at the bar. The applicant worked eight hours per shift with only a 45-minute break per shift. She worked on average 24 hours per week on a part time basis. In June 2023, the applicant noticed pain in her neck, back and shoulders while working for the respondent.
The applicant reported her alleged injury to her neck, left and right shoulders on
9 August 2023 and was provided with light duties.
On 10 January 2024 the workers compensation insurer, EML denied liability for the injury to the left and right shoulder.
In January/February 2024, the applicant reduced her hours with the respondent to 16 hours per week because of the pain she was experiencing. The applicant ceased working for respondent on 14 April 2024 due to her alleged injury.
On 1 August 2024 the applicant’s lawyers sought a review of the insurer's decision to deny liability for the left and right shoulders.
On 18 September 2024 the insurer issued their review decision pursuant to s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and maintained their denial of liability in respect of the left and right shoulders. The s 287A review notice also denied liability in respect of the alleged injury to the applicant’s neck.
On 26 August 2024, the applicant’s lawyers made a claim pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for 13% WPI (WPI) based on an independent medical report from Dr Jonathan Herald dated 27 June 2024. Dr Herald provided an assessment of 7% WPI of the cervical spine and 6% WPI in relation to the left and right shoulders making a total of 13% WPI.
On 23 December 2024 the insurer issued a further s 78 notice denying liability in respect of the claim for WPI.
On 12 June 2025, the applicant commenced proceedings in the Personal Injury Commission (the Commission). The proceedings are in respect of past medical expenses and lump sum benefits pursuant to s 66 of the 1987 Act.
In the application to resolve a dispute (ARD), a deemed date of injury of 9 August 2023 is pleaded and the type of injury is the aggravation, acceleration, exacerbation or deterioration of a disease process in respect of the cervical spine and left and right shoulders.
The injury description states:
“The applicant injured her cervical spine and left and right shoulder as a result of doing repetitive physical work overtime including carrying trays of food and beverages, lifting, twisting and bending. This work has resulted in a progressive injury with a deemed date of injury of 8 August 2023.”
The respondent disputes that the applicant has sustained an injury to her left and right shoulders and her cervical spine.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) s 4 of the 1987 Act in respect of injury;
(b) s 4(b) main contributing factor;
(c) s 9A substantial contributing factor;
(d) s 66 assessment, and
(e) s 60 medical expenses.
The respondent has agreed that if the applicant is successful in her claim in respect of injury, the respondent will no longer maintain the dispute that the treatment claimed is not reasonably necessary treatment pursuant to s 60 of the 1987 Act.
The respondent has also agreed, if the applicant is successful in her claim, the matter can be referred to the President for referral to a Medical Specialist for assessment of WPI of the relevant body parts pursuant to s 66 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration on 20 August 2025. On that day, the applicant was represented by Mr Andrew Joseph of counsel instructed by Mr Aluboodi, solicitor, from Brydens Lawyers. The applicant, Ms Smriti Silwal was present. The respondent was represented by Mr John Gaitanis of counsel, instructed by Ms Atalay, solicitor, from Hall and Wilcox Lawyers. Ms Emma Sarhane from the insurer, EML was also present.
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;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents and attached documents filed by the applicant on 17 July 2025, admitted by consent, and
(d)    Application to Lodge Additional Documents and attached documents filed by the respondent on 23 July 2025, admitted by consent.

Oral evidence

There was no oral evidence called. Both counsel made oral submissions that were sound recorded and a copy of the recording is available to the parties

Applicant’s evidence

The applicant relies on her statement dated 8 January 2025 (page 1 of the Application to Resolve a Dispute (ARD). The applicant also relies on three independent medical reports from Dr Jonathan Herald dated 27 June 2024 (two reports) and 20 May 2025 (pages 21, 25 and 26 of the ARD). The applicant relies on clinical notes and reports from the applicant’s treating general practitioner, Dr Banik (page 28 the ARD) together with a medical specialist report from Dr Jomaa dated 7 November 2023 (page 47 of the ARD). The applicant relies on an X-ray of the cervical and thoracic spine, an X-Ray of the right shoulder and ultrasound of the right shoulder all dated 17 October 2023 (page 48 of the ARD) and an MRI scan of both shoulders dated 2 April 2025 (page 1 of the application to lodge additional documents filed by the applicant (ALADA) and a further MRI scan of the cervical and thoracic spine dated
3 April 2025 (page 3 of the ALADA). The applicant also relies on clinical notes from her physiotherapist Dynamic Physiotherapy (page 51 of the ARD) and a medical expense schedule prepared by the applicant’s lawyers (page 74 of the ARD). I have considered all of this evidence together with the applicant’s oral submissions.

Respondent’s evidence

The respondent relies on two notices issued by the insurer pursuant to s 78 of the 1998 Act dated 10 January 2024 (page one of the reply) and 23 December 2024 (page 15 of the ARD). The respondent also relies on a s 287A notice issued pursuant to the 1998 Act dated 18 September 2024 (page 9 of the ARD). Although there is a reference in the index to the reply to a further s287A notice dated 5 June 2025 this document does not appear in the ARD at page 23 or in the reply. It is not before me. The respondent considered the document and then withdrew their application to rely on that s 287A notice. The respondent also relies on a request for further and better particulars from Hall and Wilcox lawyers dated 9 September 2024 (page 7 of the reply) and the response to further and better particulars from Brydens Lawyers dated 16 September 2024 (page 10 of the reply). The medical evidence relied on by the respondent comprises 3 medical reports from Dr Banik 20 October 2023, (page 54 of the ARD), 27 October 2023 (page 50 of the ARD) and 23 November 2023 (page 12 of the Reply). The respondent also relies on four independent medical reports from Dr Haig dated 20 December 2023 (page 13 of the reply) 30 October 2023 (page 19 of the reply), 23 November 2023 (page 12 of the reply) and 25 July 2025 (page 1 of the application to lodge additional documents filed by the respondent (ALADR)).

Respondent’s submissions

The respondent submits that I need to address the issues that are clearly set out in the s 78 notices and the s 287A notices.
The respondent submits that when the applicant commenced to experience symptoms she was also working at Woolworths as a cashier and with a cleaning company ARA Property Services. The respondent submits it is difficult to draw a conclusion as to which employer caused the injury and which employment was the main contributing factor to the aggravation. It is not clear that the named respondent is the last employer on risk as it is unclear if the applicant is still doing the work with Woolworths and ARA Property Services.
The respondent submits that the applicant had eight physiotherapy sessions funded by Woolworths. This was not mentioned in the applicant’s statement and it is not clear if the applicant has brought a claim for workers compensation against Woolworths.
The respondent submits that the evidence needs to be logical and probative in accordance with rule 73 of the Personal Injury Commission Rules (the Rules).
The respondent submits that I would prefer the opinion of Dr Haig over the opinion of Dr Herald. Dr Haig opines that there is nothing in the MRI scan that would have caused the symptoms the applicant is experiencing. Dr Haig was unable to reach a diagnosis following examination. Dr Haig believed there was an inconsistency between the reported symptoms and the level of incapacity. Dr Haig opined that there was no reported mechanism of injury. Dr Haig did not believe the work as a food and beverage attendant would be consistent with causing the reported symptoms. Dr Haig was unable to identify any objective pathology. Dr Haig held the opinion that he saw no reason to believe that the employment with the respondent had been the main or substantial contributing factor to the condition and it is more likely that the work at Woolworths has contributed to the applicant's symptoms. Dr Haig notes there is no history of a pre-existing condition. Dr Haig does not believe any specific treatment is required (page 4 of the reply).
The respondent submits that the radiology only demonstrates benign findings in the shoulders and minor congenital issues in the cervical spine.
The respondent submits the clinical notes demonstrate the applicant was a regular gym attendee.
The respondent submits that I need to feel an actual persuasion of the fact that the applicant’s employment with the respondent caused the applicants injury ánd referred to the decision of Keating J in Department of Education v Ireland [2008] NSWWCCPD 134 (Ireland) and Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen).
The respondent submits that I need to be satisfied on the balance of probabilities that an event has occurred during the course of the applicant's employment with the respondent.
The respondent submits that the MRI findings in the cervical spine and both shoulders only demonstrate a congenital issue and minor bursitis. This is confirmed in the report from Dr Jomma dated 7 November 2023.
The respondent submits that the report from Dr Herald dated 27 June 2024 notes the congenital issue in the applicant’s cervical spine however Dr Herald was unable to provide a definitive diagnosis in the absence of an MRI scan.
The respondent submits that the report from Dr Herald dated 20 May 2025 in which Dr Herald has access to the MRI scan of the cervical spine of 2 April 2025 does not mention the congenital issues previously identified in the X-ray.
The respondent submits that Dr Herald does not provide an explanation for his opinion.
The respondent submits that Dr Haig finds that the applicant was pain focused. He believes she may have had soft tissue symptoms but these do not amount to an injury. Any pain or discomfort she had experienced during the course of her employment with the respondent should have settled.
Dr Haig does not believe the applicant has contracted a disease. Dr Haig does not believe the applicant has had a frank injury and Dr Haig is of the opinion that there has been no aggravation, acceleration, exacerbation or deterioration of a disease in the course of the applicant’s employment with the respondent. This is his opinion in his report of
19 March 2025 (page 2 of the ALADR).
The respondent submits that Dr Haig disagrees with the opinion expressed by Dr Herald. Dr Haig found no radiculopathy symptoms, only minor pathology in the shoulders that would not cause an impingement syndrome. There is no suggestion of a soft tissue injury and none of the work the applicant carried out with the respondent or with Woolworths or with ARA Property Services could have caused her shoulder pathology or aggravated any minor underlying condition.
The respondent submits that on the balance of probabilities I would not be satisfied that an event has occurred nor has the applicant’s work with the respondent been the main contributing factor to her symptoms or the main contributing factor to the aggravation of her condition. The respondent submits that there is a congenital problem in the applicant’s cervical spine and minor bursitis in the applicant shoulders however these have not been caused or aggravated by her work with the respondent.
The respondent submits that the applicant's evidence is quite thin in terms of an explanation of her duties.
The respondent submits that there should be an award in favour of the respondent in respect of the injuries claimed by the applicant to her cervical spine and left and right shoulders.
In the event that the applicant is successful with her claim the respondent agrees that the matter needs to be referred to a medical specialist in relation to the applicant’s claim pursuant to s 66 and an order in respect of s 60 expenses would follow the event.

Applicant’s submissions

The applicant submits that it is clear from the evidence that I would accept on the balance of probabilities that the work that has caused the applicant’s injury is the work the applicant performed with the respondent.
The applicant submits that the applicant’s statement gives a clear explanation of her duties with the respondent.
The applicant submits that the applicant is of short stature. She is not 5 foot 11 inches as recorded in the report from Dr Herald.
The applicant submits that the first report provided by Dr Herald takes a detailed history of the work the applicant performed with the respondent. Dr Herald also takes a detailed history of the work the applicant performed at ARA Property Services as a casual cleaner and at Woolworths and noted the applicant worked at the self-serve checkout at Woolworths. The applicant submits that it is a matter of common knowledge what the Woolworths staff do at a self-serve checkout and it does not involve any heavy lifting.
The applicant submits that the work the applicant has performed with the respondent has been a substantial contributing factor to her pain and discomfort and her employment with the respondent is the main contributing factor to her ongoing symptoms.
The applicant submits that on examination, Dr Herald provides details in relation to referred pain from both shoulders. The applicant submits that this explains why Dr Herald reaches the conclusion that the applicant demonstrates radiculopathy symptoms.
The applicant then took me to the clinical notes from Dr Banik (page 28 of the ARD). The entry on 5 September 2023 is of assistance and describes the applicant’s work with the respondent. The clinical notes also demonstrate that the applicant complained of “radiculopathy like” symptoms in both shoulders.
The applicant submits that the referral from Dr Banik to Dr Jomma dated 20 October 2023 refers to the work the applicant performed with the respondent (page 46 of the ARD). Dr Baku felt no need to describe the applicant’s duties at her other two places of employment.
The applicant submits that the physiotherapy notes (page 51 ARD) are also of assistance to the applicants claim.
The applicant submits that the report from Dr Haig dated 30 October 2024 does not provide an explanation for the applicant’s pain.
The applicant notes the respondent maintains that the applicant is pain focused. The applicant states that this does not take the matter very far and if the applicant has pain then it is appropriate to demonstrate it.
The applicant disagrees with the conclusion reached by Dr Haig that the soft tissue injury in the cervical spine has settled. The applicant notes that Dr Haig provides an assessment in relation to WPI of zero percent believing that she satisfies the descriptors for DRE 1 which in itself demonstrates an acceptance of injury to the neck.
The applicant points out that the applicant provided Dr Haig with some additional information in relation to her employment with the other two employers which he summarises in his report dated 30 October 2024.
The applicant submits that in his final report dated 23 July 2025, Dr Haig appears to have changed his opinion and now does not believe that the applicant has sustained an injury to her cervical spine or her shoulders.

The applicant submits that Dr Herald’s report of 20 May 2025 addresses the recent MRI scans of the cervical spine and both shoulders. Dr Herald is of the opinion that the MRI scan shows subacromial bursitis in the shoulders and cervical spondylosis and anterior wedging in the cervical spine. His diagnosis is of an impingement injury to the shoulders and a soft tissue injury to the cervical spine. He confirmed that the applicant has not sustained a frank injury but a progressive injury due to the applicant's work with the respondent.
The applicant submits that despite the fact the physiotherapy notes appear to indicate that the applicant had treatment in September 2023 funded by Woolworths there is no evidence before me of a claim for workers compensation against Woolworths and the evidence is overwhelming that the applicant's injuries were caused by the work with the respondent.
Finally, the applicant submits that I would be satisfied on the evidence of injury to the cervical spine and both shoulders as a result of the applicant’s work with the respondent and further I would be satisfied that the applicant’s employment with the respondent was the main contributing factor to the development of these injuries based on the applicant's evidence and the medical evidence. The applicant notes that prior to performing the work with the respondent there is no evidence of any complaints of neck pain or shoulder pain.

Respondent’s submissions in reply.

The respondent submits that I must consider rule 73 of the Rules that the evidence must be logical and persuasive.
The responded repeats its submission that I could not be convinced that the applicant’s work with the respondent was the main contributing factor to her symptoms bearing in mind the applicant also performed work with two other employers, Woolworths and ARA Property Services.
The respondent submits that there are significant gaps in the applicant’s case that have called for explanations from the bar table that do not form part of the evidence.
The respondent submits that Dr Haig’s opinion that the applicant was pain focused is relevant as in the circumstances it is difficult to accept that the applicant considered the cause of her injury the work with the respondent only and not the other two employers.

Findings and reasons

Section 4 of the 1987 Act defines “injury” as follows:
“(a) means a 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 any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
Section 9A of the 1987 Act sets out the following additional matters that need to be considered:
“No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note : In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)--
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.
(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following--
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.”
In respect of a disease injury, the worker’s employment must be the main contributing factor.
The applicant has the onus of proof in establishing that she has suffered an injury within the terms of s 4 of the 1987 Act.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSWCA 246 (Nguyen) McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR; NSWCCR 796 (Kooragang) wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at [462E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The above-mentioned legal principles need to be considered in the context of the evidence in this case.
I have considered the medical evidence, the statement evidence and the submissions made by counsel and I am satisfied, on the balance of probabilities, and on the evidence before me, that the applicant has sustained an injury to her left shoulder, her right shoulder and her neck by way of an aggravation, acceleration, exacerbation or deterioration of an underlying disease process during the course of her employment with the respondent. I am also persuaded, on the balance of probabilities and on the evidence that her employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease process in the applicant’s left shoulder. I make these findings for the following reasons.
I accept the applicant as a witness of truth. I accept that the applicant worked with the respondent as a food and beverage attendant working three shifts per week. Each shift was for eight hours with a 45-minute break. I accept that the applicant commenced working with the respondent on 4 April 2022.
I accept the applicant’s description of her duties with the respondent as detailed in her statement dated 3 February 2025 which is as follows:
“14. While I was employed at the Crown Sydney Gaming Centre, part of my duties included holding food and beverages on a tray at shoulder height and serving customers.
15. I also had the duty of making drinks and coffee at the bar.
16. Sometimes carrying the foods and beverages were heavy for me but I had no assistance and just had to do the heavy lifting and carrying on my own.
17 During work I had to make trips to the VIP casino, which was short distance, but the general casino was a further distance to walk.
18 I worked 8 hours a day and I only got a 45 Minute break per shift.
19 I suffered from severe pain to my neck, back and shoulders overtime from handling and serving foods and beverages.
20 While working around June 2023, I noticed the pain in my neck, back and shoulders became worse, I tried to swapping arms, to relieve some of the pressure, however the pain only got worse in both of my shoulders.
21 2-3 Months before I stopped working, I had to reduce my work hours from 24 hours to 16 hours because of the unbearable pain I was experiencing.
22 Since 14 April 2024, I stopped working at the Crown Sydney Gaming Centre.”
No challenge has been made by the respondent in respect of the nature of the applicant’s duties with the respondent.
I reject the respondent’s submission that the applicant’s injury could have been caused by the work she performed as a self-service checkout supervisor at Woolworths or a part time cleaner with ARA Property Services. The respondent has adduced no evidence to contradict the applicant’s history that she provided to Dr Herald and to Dr Haig that the work she performed at ARA Property Services was light cleaning work and the work she performed at Woolworths involved no lifting (page 22 of the ARD and page 15 and 20 of the reply).
I reject the respondent’s submission that the applicant could have sustained her injuries attending the gym. This submission was not developed by the respondent and there is no medical or lay evidence to support this submission.
I reject the respondent’s submission that the applicant is pain focused, and this should be considered when considering injury and causation.
I accept the medical opinion provided by Dr Herald and I prefer Dr Herald’s opinion to the opinion expressed by Dr Haig.
Dr Herald’s opinion is as follows: “The MRI scan confirms the findings of impingement syndrome or bursitis in both shoulders as well as a soft tissue injury of the cervical spine, aggravating some underlying cervical spondylosis causing radiculopathic symptoms to her shoulders and to the head, giving headaches to some degree; however, there is also a progressive degenerative change to the thoracic spine… Her injury was not a fixed or a frank injury, but rather an injury of disease progression. It gradually increased due to the nature and conditions of her employment and this is consistent with the aggravation of underlying spondylosis and development of chronic pain syndrome” (page 26 of the ARD).
Dr Herald has based his opinion on the applicant’s description of her duties with the respondent and on the radiological material available to him, in particular the MRI scan of the left and right shoulders dated 2 April 2025 and the MRI scan of the neck dated 3 April 2025 (pages 1 and 3 of the ALADA).
I reject the opinions provided by Dr Haig. In his first report dated 20 December 2023, Dr Haig provided an inaccurate history of the applicant’s employment with Woolworths, recording that she was working 28 to 40 hours per week as a cashier but since July 2023 had reduced this work to 28 hours per week. On the basis of this incorrect history Dr Haig opined that “her work at Woolworths has been contributory to her symptoms”. The applicant corrects this error when she is reexamined by Dr Haig on 23 October 2024 (see report dated 30 October 2024). Dr Haig records “She corrected me on some aspects suggesting that whereunder the heading Employment History, I stated at Woolworths “at the checkout where she was previously working 28 to 40 hours a week but is now down to 28 hours a week since July”, she told me that she had been working on one or two occasions a week working up to 5 to 10 hours a week.”
Dr Haig does not record that the applicant commenced working with Woolworths in April 2022, around the same time she started working with the respondent. Dr Haig does not record that the applicant worked as a self service check out supervisor that requires no lifting.
Dr Haig considered the MRI scans and other diagnostic studies and reached the conclusion that the radiology of the shoulders and the cervical spine is well within the normal limits with the exception of the congenital defect at C2 which he believes is an incidental and unrelated radiological finding. He disagrees with the opinion expressed by Dr Herald that the applicant had displayed symptoms of radiculopathy from her cervical spine and has also diagnosed an impingement syndrome of the left and right shoulders.
I reject this opinion put forward by Dr Haig in relation to radiculopathy from the cervical spine. The clinical notes from Dr Banik note symptoms of radiculopathy. At an attendance on 15 January 2024, Dr Banik records “patient is upset and worried about the ongoing symptoms doing light duties at the Crown; needed to carry the drinks; stated experiencing pain neck goes down to shoulder blade and (and) arm also gets lots of spasm; pain became unbearable and 1 to 2 hours of work continue doing the shift with restricted work” (page 41 of the ARD). Dr Banik also recorded pins and needles in the right arm especially at night at a consultation with the applicant on 12 December 2023 (page 39 of the ARD). Dr Banik recorded a radiation of pain from the neck to the applicant’s left arm at an attendance on
2 November 2023 (page 34 of the ARD).
Dr Banik’s clinical notes are also of assistance when addressing the impact of the work the applicant performed with the respondent. At the applicant’s first consultation with Dr Banik on 5 September 2023, Dr Banik records the following: “works Crown casino for the last 18 months; job requires handling drink serving drinking food ect; (sic) need to carry drinks tray on the hand for most 7 hrs 30 min; started experiencong (sic) pain neck upper back and shoulder area for a while and as pain gotten worse went to see physio 11/08 has been getting physio treartment (sic) and here the letter from the physio now started pain L shoulder over a week; had second job in Woolworth, work of the checkout does not need carrying stuff.”
Dr Banik also provided a report to the respondent dated 27 October 2023 noting that the applicant did not report any prior neck or shoulder pain and that her employment in respect of the claim made against the respondent was a substantial contributing factor to her injury.
On 20 October 2023, Dr Banik referred the applicant to sport and exercise physician Dr Jomaa. In her referral to Dr Jomaa, Dr Banik has recorded the following: “Thank you for seeing Miss Smriti Silwal, age 26 yrs 8 mths, who works as a waiter at the Crown casino. Developed neck pain, biscapular pain, shouder (sic) pain R>L and some pins and needle pain on the arms after carrying food and drinks tray in the hand for all day (8 hour). She started this new role over a year ago and however current symptoms started slowly for the last 6 months.” This history is consistent with the applicant’s statement.
The history of injury contained in the clinical notes from Dr Banik are consistent with the applicant’s statement and I accept that the clinical notes and reports from Dr Banik provide a fair climate for the acceptance of the applicant’s claim that her injuries have arisen out of her employment with the respondent and that her work with the respondent has been the main contributing factor to the development of her symptoms as a result of the aggravation, acceleration, exacerbation and deterioration of the disease processes identified in the MRI scans of the cervical spine and the left and right shoulders.
Dr Jomaa confirms symptoms of radiculopathy in his report dated 7 November 2023 (page 47 of the ARD).Dr Jomaa also noted mild bunching of the bursa in the right shoulder ultrasound and painful abduction was noted.
Dr Herald diagnoses an impingement syndrome and bursitis in the shoulders which is supported by the MRI scan of the shoulders. The MRI scan of the cervical spine also demonstrates evidence of cervical spondylosis which Dr Haig does not address. Dr Haig placed greater emphasis on the congenital defect in the applicant’s cervical spine however all of the medical evidence confirms that this finding is of no consequence and not responsible for the applicant’s symptoms.
There is no recorded history of the applicant suffering from symptoms in her neck or left and right shoulders prior to her commencement of work with the respondent. On the evidence before me, the applicant had never sought medical treatment for her shoulders or neck or the congenital defect in her neck before she commenced work with the respondent.
I reject the submission made by the respondent that the applicant had made a prior workers compensation claim against Woolworths. Apart from a reference to a compensation claim lodged on Woolworths in the s 78 notice dated 10 January 2024 (page 3 of the reply), there is no evidence before me that a compensation claim against Woolworths was lodged by the applicant. I accept the applicant’s submission that the respondent has not relied on a workers compensation file from Woolworths nor is there any evidence before me that the respondent requested further and better particulars from the applicant in relation to this alleged compensation claim. There is a reference to four physiotherapy sessions with Dynamic Physiotherapy which appear to have been funded by Woolworths in August/September 2023 (pages 67 to 73 of the ARD) however at a consultation on 3 November 2023 the physiotherapist has noted that the applicant has applied for workers compensation “via crown” (page 66 of the ARD). Furthermore, at an attendance on 7 November 2023, the applicant has advised the physiotherapist that “she may be approved for WC through crown as this is where most of her pain and overload stemmed from” (page 62 of the ARD).
In his final report dated 23 July 2025, after considering the MRI scan of the cervical spine and the MRI scan of the left and right shoulders, Dr Haig resiles from the opinion he had expressed in his report dated 30 October 2024 that she may have suffered some symptoms from a soft tissue complaint in her shoulders and neck however any pain or discomfort she had in the neck/shoulder area would have settled with the discontinuation of that type of work. In the report dated 23 July 2025, Dr Haig is now of the opinion that he does not consider that the applicant has suffered an aggravation, acceleration, exacerbation or deterioration of a disease affecting the left shoulder, right shoulder and/or cervical spine in the course of her employment. He confirms that there has been no frank injury and he sees nothing in her work as a food and beverage attendant nor working in the checkout area at Woolworths nor working as a cleaner that would be causative of the shoulder pathology.

I cannot accept this opinion expressed by Dr Haig in light of the overwhelming evidence that I have before me. Dr Haig provides no other explanation for the continuation of the applicant’s symptoms apart from her being “pain focussed”. I do not believe Dr Haig has properly considered the type of work the applicant was performing with the respondent.
As I have previously stated, I accept the opinion expressed by Dr Herald in his report of
27 June 2024. Dr Herald has taken a detailed history of the work the applicant performed with the respondent (see page 21 of the ARD) and has also properly recorded the work the applicant performed with her other two employers.
In his report dated 20 May 2025, Dr Herald confirms the applicant has an injury of disease progression. The injury has gradually increased due to the nature and conditions of her employment and this is consistent with the aggravation of underlying spondylosis, the development of chronic pain syndrome and the development of impingement syndrome or bursitis in both shoulders. I accept this opinion. I reject the respondent’s submission that Dr Herald has not provided an explanation for his opinion. Dr Herald has considered the work duties performed by the applicant. He has considered the pathology demonstrated on the MRI scans and he has provided his opinion based on this information.
I note the respondent’s submission that I would be unable to confirm that the respondent was the last employer on risk due to the fact it would appear on the evidence that the applicant has been able to continue her work with her other two employers. In this respect I find that the work the applicant performed with Woolworths and ARA Property Services was not heavy or repetitive and was not in any way causative of the symptoms the applicant experiences in her neck and both shoulders.
I find that the evidence relied on by the applicant was logical and persuasive.
In light of the above, I accept on the balance of probabilities, that the applicant has sustained an injury to her neck and left and right shoulders as a result of an aggravation, exacerbation, acceleration or deterioration of a disease process during the course of her employment as a food and beverage attendant with the respondent. I find that the work performed by the applicant with the respondent as a food and beverage attendant was the main contributing factor to the development of her injuries and symptoms. I further find that the work performed by the applicant with the respondent has been a substantial contributing factor to the development of her injuries and the pain and discomfort associated with those injuries
In light of these findings, I note the respondent’s agreement that in the event that the applicant is successful in her claim, the dispute in respect of the past medical expenses will be withdrawn. I note neither party made any submissions in relation to the claim for past medical expenses.
I make the following orders:
(a) pursuant to s 4(b)(ii) of the 1987 Act the applicant has sustained an injury to her left shoulder, right shoulder and cervical spine during the course of her employment with the respondent, employment being the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease;
(b) pursuant to s 60 of the 1987 Act, the past medical expenses claimed by the applicant are reasonably necessary treatment expenses as a result of the injury sustained by the applicant with a deemed date of injury of 9 August 2023, and
(c) I remit this matter to the President for referral to a Medical Assessor pursuant to
s 321A of the 1998 Act for assessment of the cervical spine, the right upper extremity and the left upper extremity.

[2025] NSWPIC 437

27 August 2025