Syme v Dentfree NSW Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Syme v Dentfree NSW Pty Ltd [2024] NSWPIC 649
APPLICANT:	Kieran Syme
RESPONDENT:	Dentfree NSW Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	22 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; lump sum claim relying on disease provisions in section 4(b); the respondent agrees the applicant sustained an injury to his cervical spine but disputes he sustained any injury to his lumbar spine and bilateral shoulders; issue about adequacy of expert’s report; Ly v Jitt Offset Pty Ltd and AV v AW discussed; pursuant to section 4(b)(i) the applicant sustained injury to his lumbar spine with his employment being the main contributing factor to the contraction of disease; Held – award for the respondent in relation to the allegation of injury to the bilateral shoulders; the lump sum claims relating to the cervical spine, lumbar spine and scarring are remitted to the President for referral to Medical Assessor to assess permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(b)(i) of the Workers Compensation Act 1987 the applicant sustained injury to his lumbar spine with his employment being the main contributing factor to the contraction of disease. 2. Award for the respondent in relation to the allegation of injury to the bilateral shoulders. 3. The respondent agrees the applicant sustained injury to his cervical spine and scarring. 4. The claim for lump sum compensation is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: Body systems: cervical spine, lumbar spine, and scarring. Date of injury: 26 July 2023 (deemed). Documents to be referred: Application to Resolve a Dispute, Reply and Application to Admit Late Documents dated 28 August 2024.

STATEMENT OF REASONS

BACKGROUND

Kieran Syme, the applicant, was self-employed by the respondent, Dentfree NSW Pty Ltd, as a paintless dent remover for over 30 years. His job required repeated heavy lifting, twisting and bending and he asserts that due to the nature of this work he sustained an injury to his cervical spine, lumbar spine and bilateral shoulders.
Mr Syme’s claim for compensation in these proceedings is confined to lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for the above mentioned body systems and scarring with a deemed date of injury of 26 July 2023.
The respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 December 2023 responding to the lump sum claim. It accepted that Mr Syme had sustained an injury to his cervical spine but disputed liability for the lumbar spine and bilateral shoulders relying on the opinion of
Dr Bosanquet that no injury had been sustained to these body parts due to the nature and conditions of his employment, asserting that these “injuries” are degenerative changes which the doctor stated would have occurred at this stage of life regardless of Mr Syme’s employment with the respondent.
The respondent made an offer in respect to the cervical spine and scarring. However,
Mr Syme’s solicitors sought a review of the insurer’s decision and sent them the report of
Dr Charles New dated 21 June 2024.
The insurer issued a notice under s 287A of the 1998 on 16 July 2024 maintaining their previous declinature.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded in Arbitration Hearing on 4 September 2024 with Mr Syme being represented by Mr Andrew Parker, counsel, instructed by Ms Frisch, solicitor, and the respondent by Mr Paul Stockley, counsel, instructed by Mr Haydon, solicitor and Ms Williams from the insurer.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 28 August 2024 attaching the report of Dr Bosanquet dated 30 October 2023.

Oral evidence

There was no oral evidence. The parties made oral submissions which were sound recorded. A copy of the recording is available to the parties.

FINDINGS AND REASONS

Mr Syme is presently 52 years of age. He describes in detail in his statement dated
15 March 2024 the nature of his duties and the physical demands his work duties have placed on his body. He says the role is strenuous and heavy in nature and required him to hold his body in awkward position for long periods of time. I accept this uncontradicted evidence. He says in 2018 he began to struggle with his injuries.
On 24 November 2018 Mr Syme underwent a C6/7 laminectomy and neurolysis by Professor Owler.
On 6 December 2018 Mr Syme underwent a C6/7 ACDF by Professor Owler.
Mr Syme states he returned to work following the surgery but he was not able to do much and he took on a more managerial role, performing extremely small and easy to do dents. He says his condition deteriorated and there is not a lot he can do without pain now. He says he would favour his right shoulder at work and when doing domestic tasks at home and overtime he began to experience symptoms in his right shoulder. He describes the treatment he has undertaken over the years and his ongoing disabilities.

Treating medical evidence

In 2007 Mr Syme attended on Linda Tremain, chiropractor. In a questionnaire dated
12 November 2007 he wrote that he had general back pain for eight to nine years. The clinical notes refer to “work? lifting. Funny position”. There is reference to “gen LBP” L5 and T10 and C6. There are eight attendances in 2007 listed and 18 in 2009. On 3 July 2009
Dr Donohoe, radiologist, reported to Ms Tremain the results of a lumbar X-ray, that there was narrowing of the L4/5 disc.
On 5 August 2009 Professor Suzanne Anderson, radiologist, reported to Linda Tremain about an X-ray of the cervicothoracic spine finding a discrete loss of disc height at C5/6 level. An MRI was recommended if there was persistent concern regarding radicular pain or neck pain.
On 21 January 2010 the entry in Ms Tremain’s notes refers to Mr Syme being hit on the neck playing baseball and X-rays were ordered as a precaution.
On 17 November 2010 Ms Tremain’s clinical notes refer to “fall/lean heavily on chest at work”. On 22 January 2010 Dr Farrell, radiologist, reported to Linda Tremain about cervical X-rays finding nothing of clinical significance. The history recorded is “ongoing neck pain”.
In 2012 attendances on Ms Tremain seem to refer to the cervical spine and thoracic spine. The notes use various abbreviations the meaning of which is not entirely clear. In 2013 there is reference to work aggravating the symptoms and awkward position and lifting, however most of the entries seems to refer to the thoracic spine and cervical spine. On
30 September 2015 it is noted the pain is “always related to work” and the T10 is mentioned. On 23 November 2015 there seems to be a reference to left shoulder pain with the trigger point at “subscap and rhomboids”. On 15 December 2015 the neck was sore at C6-7 and there is reference to “pec, subscap, supraspin”.
Linda Tremain reported on 5 December 2018 that Mr Syme had attended for treatment for back pain on and off since 2010. She states in the first consultation on 17 November 2010 Mr Syme complained of left thoracic pain that he said he fell after leaning heavily on his chest to perform his work duties. On 21 June 2013 he complained of left mid thoracic pain which he had experienced for about three months and again he stated his work position and awkward lifting were aggravating factors. Apparently he was seen six times over the next month. Ms Tremain records that Mr Syme presented on 30 September 2015 with left sided thoracic pain again attributed to awkward work positions and lifting and he was seen six times over the next three months. Ms Tremain states the pain was at T3 and T8-10 especially on the left.
It should be borne in mind that Mr Syme has not made a claim in relation to his thoracic spine in these proceedings.
On 21 October 2014 Mr Syme attended on Dr Artinian, general practitioner at Warringah Medical and Dental Centre. The doctor has recorded in his clinical notes “pulling against force yesterday, then felt pain L shoulder, OE limitation of abduction, tender over rotator area.” The doctor referred him for an ultrasound. A work cover initial certificate was issued. On 22 October 2014 Mr Syme underwent an X-ray and ultrasound of his left shoulder. The ultrasound revealed mild subdeltoid/subacromial bursal effusion.
On 4 November 2015 Dr Wu, general practitioner at Warringah Medical and Dental Centre, records that Mr Syme had lower back pain for three days with a history of sciatica for 10 days. It is noted he is self-employed doing mechanical work. There was a lengthy consultation about back pain management. He was referred to physiotherapy and the doctor recommended modified duties.
On 25 July and 20 August 2018 Mr Syme was treated by Dr Emily Teo with acupuncture for seven visits for neck and elbow pain. Dr Teo’s surgery consultation records on 25 July 2018 note that the shoulder range of motion had normal limit but was sore and there was pain in the neck on lateral rotation, pain the elbows was also noted. On 14 August 2018 the entry makes reference to him being still in a lot of pain and that the neck and right shoulder was sore.
On 17 February 2016 Mr Syme attended on Dr Nick Florance, osteopath, with pain and discomfort in his upper back and neck. He had shoulder pain and other symptoms. He advised that he believed that a manoeuvre on a car at work some months earlier had damaged his upper back. He had 25 treatments over a couple of years but relief was not long lasting. The last appointment was on 20 October 2018.
On 16 October 2018 Mr Syme attended his general practitioner complaining of neck pain radiating to his left arm with pins and needles, spasmodic pain for a week. It is noted he is a left handed mechanic.
On 16 November 2018 Mr Syme reported he had a stiff neck and tingling and pain and numbness and a weak feeling in his left arm especially his first three fingers. On
20 November 2018 Dr Skovrij referred Mr Syme to Royal North Shore Hospital but notes he did not receive treatment there. He records that Mr Syme has worsening of pain and paraesthesia over the left C7 dermatome.
On 16 November 2018 an MRI of the cervical spine scan revealed a small left foraminal disc protrusion at C6/7 compressing the left C7 nerve root. The clinical history recorded by the radiologist is “neck pain with tingling in the left arm and numbness in the first 3 fingers”. A referral on 20 November 2018 to Royal North Shore Hospital Accident and Emergency refers to worsening pain and numbness and tingling in the left arm for three months, worse last week with stiff neck, worse with head extended.
Professor Brian Owler has provided various reports about the cervical spine surgeries he has performed. I have not summarised these reports as there is no dispute relating to injury to the cervical spine. Following the surgeries he recommended physiotherapy and treatment from Dr Nazha, pain management specialist. Professor Owler does not refer to the other body parts claimed to have been injured but I place no significance on this as his focus was on treating the cervical spine injury.
On 24 November 2018 Mr Syme underwent a C6/7 laminectomy and neurolysis by Professor Owler and on 6 December 2018 Mr Syme underwent a C6/7 ACDF by Professor Owler.
The clinical notes from the Warringah Medical and Dental Centre continue to have consultations recorded after these surgeries. On 6 February 2019 a complaint of “bilateral upper back/posterior shoulders pain some numbness recently over Lt ring/little fingers (new).” On 12 March 2019 the doctor recorded that Mr Syme’s job involved using bars and rod hand tool to push from the inside of cars with repetitive twisting and bending of the neck. He was taking Targin, Panadol, Lyrica and Mobic. The Certificate of Capacity of the same date refers to post neck surgery with chronic pain syndrome. There is no mention of the lumbar spine or shoulders. The certificates issued in 2020 and 2021 in the diagnosis section, and in other parts of the certificates, only refer to the cervical spine.
The subsequent clinical notes mainly refer to ongoing neck symptoms. On 21 February 2022 no upper arm weakness was recorded.

Dr New

Dr Charles New, orthopaedic surgeon provided medico-legal reports for Mr Syme dated
29 June 2023 and 21 June 2024. In his first report Dr New took the history that Mr Syme’s work for the respondent for over 30 years required heavy lifting, twisting and bending which resulted in a painful neck presentation. Dr New records that Mr Syme said he started to experience neck pain radiating to his thoracic spine in 2009 and he was treated by a chiropractor and had radiological investigations.
The doctor also recorded that around 2014 to 2015 Mr Syme started to experience pain in his lumbar spine as well as his left shoulder and his general practitioner treated the symptoms with minor analgesia. Mr Syme advised that his symptoms became worse over time and he was treated by an osteopath and his general practitioner. He was referred to
Professor Brian Owler, neurosurgeon, who diagnosed C7 radiculopathy as a result of a C6/7 disc prolapse. He underwent two surgical procedures and Mr Syme told Dr New he had a 50% improvement in his neck pain and 30% improvement in his arm pain. Since then the neck has improved a further 10%.
Dr New was advised that Mr Syme subsequently developed debilitating right shoulder pain, which did not improve with analgesia and physiotherapy.
At the time of this report Dr New states that Mr Syme considers his right shoulder pain is the most severe, followed by his cervical spine and equal intensity of pain in his left shoulder and back. He was taking Cannabis Oil.
On examination Dr New found marked restriction in his cervical spine with tenderness over the cervical spine and right shoulder anteriorly and posteriorly as well as radiating pain into the sternum. In the lumbar spine there was pain over L4/5 and restriction of flexion, extension, lateral bending and rotation of approximately 25% of range of movement. In the shoulders there was decreased range of movement, particularly on the right side.
Dr New sets out details of the shoulder movements and the radiological investigations. He found no reported pre-existing pathology in any of the claimed body parts.
Dr New opined that the employment was a substantial contributing factor to his conditions and he thought that working in confined spaces and with heavy weights in awkward situations will precipitate the pain in his cervical and lumbar spine and right shoulder. He says he does not suffer from a disease but a chronic musculoskeletal condition which will become worse with time. He assessed impairment in the lumbar spine at 5%, the bilateral shoulders at 11% together, scarring at 2% and the cervical spine at 25% with 3% for the impact on activities of daily living and 3% and 2% for the surgeries, which Dr New combined to reach 42% whole person impairment.
Dr New issued a supplementary report dated 21 June 2024 commenting on Dr Bosanquet’s report dated 30 October 2023. Dr New states that Mr Syme confirmed that he had no cervical issues before his work injury and he therefore disagrees with Dr Bosanquet’s deduction of 50% from his whole person impairment assessment. He adheres to his earlier report in relation to the lumbar spine and shoulders.

Dr Bosanquet

Dr Bosanquet provided a medico-legal report for the insurer dated 30 October 2023. The doctor diagnosed that Mr Syme had cervical spondylosis with aggravation causing radiculopathy resulting in a cervical fusion. He adds that he has ongoing pain affecting his shoulders and low back. He states later in his report that there has been no injury to the lumbar spine or bilateral shoulders as a result of his work.
He finds that the condition in his lumbar spine is a disease of gradual process. He answers “no” to question (i) whether the employment was a substantial contributing factor to the alleged injury to the lumbar spine. In answer to question (n) he answers “no” that there was no aggravation etc of a pre-existing condition in the lumbar spine arising out of or in the course of his employment. He also answers “no” to question (o) relating to main contributing factor.
In relation to the shoulders he finds that Mr Syme did not suffer an injury and says he has full range of movement in the left shoulder and he considers the right shoulder is due to pre-existing degenerative changes. He gives the same responses as he had in relation to the lumbar spine to the other questions. He accepts the complaints in the cervical spine are a direct result of injury.
The only investigations Dr Bosanquet considered was the MRI scan of the cervical spine dated 16 November 2018. He examined the right shoulder and found tenderness around the acromion and noted he was hypersensitive down the lateral right arm. With the left shoulder he found full range of moment in all planes. In relation to the lumbar spine he found tenderness over the sacroiliac joint. He noted Mr Symes complaint of fairly constant low back pain worse with prolonged sitting and that he was unable to sleep on his right side. He does not mention the left shoulder when he refers to current symptoms.

Determination

Mr Syme’s counsel submitted that the case law relevant to determining a disease injury is AV v AW [2020] NSWWCCPD 9 both in relation an injury under s 4(b)(i) and s 4(b)(ii) of the 1987 Act. It was submitted that the only factor in this case is Mr Syme’s work so he satisfies the test of main contributing factor in either limb of s 4(b). It was also submitted that “commonsense” still has a role to play in the determination of such matters and he relies on the recent decision in Fisher v Nonconformist Pty Ltd [2024] NSWCA 32.
I accept these cases set out the relevant principles to apply in this matter. The respondent did not submit to the contrary. However, the parties are at odds in the determination of causation with the available evidence in Mr Syme’s matter.
Mr Parker submitted that the evidence from Mr Syme about his work activities is set out in his statement at [5] to [11] and [47] and [48]. I have referred to this evidence above and have accepted it, it is not contradicted. I find that Mr Syme worked for a long period of time, since his 20’s, in a job that was physically demanding, requiring him to place his body in awkward positions, and was heavy and repetitive. I find this type of work was capable of causing injury to the body parts alleged. Whether it did so in Mr Syme’s case requires an examination of not only his statement but also the treating and qualified medical evidence.
The respondent submits that the determination depends on the Commission’s views about Dr New’s and Dr Bosanquet’s opinions. It submitted that Mr Syme’s case fails to discharge his onus of proof because Dr New does not give any reasons about how he comes to his opinion. It was argued that if this is a disease case, the first proposition is: what is the disease? and Dr New makes it difficult to answer this question because he says there is no disease. The respondent submits that this is a forensic challenge for Mr Syme at the outset because all Dr New tells us is that he has pain associated with his work, he does not state what the condition is and how it has changed. The respondent submits that Dr New does not give a reasoned view, he just makes statements about the impairment.

The respondent asserts that the scan of the back does not refer to disease, just to disc narrowing and, in any event, the case is not presented as a s 4(b)(ii) case by Dr New.
In relation to the shoulders, the respondent submits that one of Mr Syme’s complaints when he consulted Dr Owler was neck and shoulder pain, for which he got significant relief when he had surgery. It argues that this does not speak of injury to the shoulders and that no one has identified any pathology to explain any shoulder pain.
Mr Stockley accepts the analysis by Dr Bosanquet is terse and not analytical but he submits the doctor is giving a negative opinion and it is hard for him to say more, having reached the conclusion there is no injury. The respondent submits that Mr Syme fails to discharge his onus of proof to establish injury to the shoulders and back as Dr New’s opinion is not adequate.
Mr Syme’s counsel referred to the radiological investigations of the lumbar spine on
3 July 2009 and to the left shoulder on 21 October 2014 and the contents of Ms Tremain’s report, as well as the other treating records which I have summarised above. Counsel submitted that all of this evidence is relevant to the issues in dispute because it shows that Mr Syme was experiencing symptoms in his lumbar spine and shoulders during his working life with the respondent and many of the entries specifically refer to his work as a mechanic together with his complaints of pain.
He submits that Mr Syme was having troubles with work and was recommended to undertake modified duties. I accept this was the situation however, I do not accept
Mr Parker’s submission that Professor Owler’s view that Mr Syme should no longer do pre-injury duties is indicative of injury, excepting to the cervical spine. Professor Owler does not consider the lumbar spine or shoulders when he made this assessment about Mr Syme’s work capacity so it does not assist my determination about injury to these contentious body parts.
When dealing with the experts, Mr Parker submits that the case law suggests one needs to have good reasons to reject an expert’s opinion, such as when an expert becomes an advocate. To support this submission he referred to Ly v Jitt OffsetPty Ltd [2021] NSWPICPD 2. Mr Parker submits that Dr New found restriction of movement in both shoulders, although he only refers to pain in the right shoulder. He submits that it is apparent from his assessment of permanent impairment that he found injury exists in both shoulders. He referred to the second report having a more complete history and Dr New finds there was pain in both shoulders. Attention was also drawn to the answer to question 1 in that report, that Mr Syme referred to gradually increasing pain in both shoulders.
It was submitted that when one considers all the evidence the Commission should be satisfied that there was an injury to both shoulders, even though Dr New is somewhat “inarticulate” when expressing his opinion. Counsel also submitted that the evidence about the lumbar spine and right shoulder should persuade the Commission that Mr Syme sustained injury to those body parts as well.
In relation to Dr Bosanquet’s report, Mr Parker submitted that most of his opinions are a bare ipse dixit because he has not explained why the neck injury is not a s 4(b)(i) injury. He argues that the doctor’s opinion about the underlying condition of the neck shows that it has infected how he treats the issue of injury to the shoulders and back. He submits that
Dr Bosanquet has not articulated any other causative factor except to say it is a degenerative condition, and that he has not considered a s 4(b)(ii) case.
Finally, Mr Parker submitted that Dr New’s report should be read as a whole. He cited RSL Queensland War Veterans Home v Watkins [2013] NSWWCCPD 34 about what is required by an expert, depends on each case. He submits that an expert draws on his entire body of experience even though the expert may not state it in their reports. It was submitted that the radiology is part of Dr New’s opinion and he refers to spondylosis in lumbar spine, which is a disease, as is bursitis in the left shoulder. Mr Parker submits that the respondent’s argument about Dr New is sophistry because we, as lawyers, understand that what Dr New is describing is a disease and that is why the doctor deals with main contributing factor, even though Dr New says Mr Syme does not have a disease.
I find it is helpful to consider the disputed body parts separately.

Lumbar spine

Mr Syme presented his case in relation to the lumbar spine as a disease injury. The respondent submitted that Dr New did not identify the nature of the disease and specifically stated Mr Syme did not have a disease.
The clinical notes do refer to Mr Syme having instances of low back pain in 2007, 2009, and 2015. There are no treating practitioners giving opinions about the cause of the low back pain. However, there are references in the other records to the nature of Mr Syme’s work which are consistent with his description of his duties.
The treating practitioner’s references to low back symptoms are set out below:
(a)    In November 2007 Ms Tremain treated Mr Syme for low back pain. The entry on 12 November refers to “gen LBP” and to L5. It is not entirely clear but the note seems to refer to the left side. The form completed by Mr Syme on
12 November 2007 refers to his major complaint as “general back pain” The date of onset was 8-9 years ago. The onset occurred “after tension build up, stressed, busy”.[1] On the reverse of this form the clinical note states:
“general ongoing back pain
Cause: work?
Lifting. Funny position”[2]
(b)    In his first report Dr New lists the radiology including on 3 July 2009 a lumbar spine test revealed lumbar spondylosis at L4/5. The only radiological test before the Commission dated 3 July 2009 is that performed by Dr Donohoe addressed to Linda Tremain. There is reference to minor spondylotic changes in the lower lumbar spine and the L4/5 disc space was narrowed.[3] The corresponding clinical entry of 3 July 2009 refers to “LBP ref into ® leg to knee. After long period batting ref X-rays”. The rest of the entries in Ms Tremain’s notes refer to treatment including the ®L5.[4] Unfortunately Ms Tremain’s report does not mention complaints before 2010.
(c)    On 4 November 2015 Dr Yu in his clinical entry refers to lower back pain for three days.[5] On examination the doctor found Mr Syme was tender over his lower back. There is a reference to modified duties and a referral for CT scan. The referral to Brookvale Imaging notes history of sciatica for over one year,[6] although in Dr Yu’s entry the reference to sciatica for 10 days.
[1] ARD p 44.
[2] ARD p 45.
[3] ARD p 50.
[4] ARD p 46.
[5] ARD p 82.
[6] ARD p 107.
Dr New’s examination of Mr Syme’s lumbar spine revealed pain at L4/5 level and restriction of flexion, extension, lateral bending and rotation of approximately 25% range of movement. Dr New considered he had debilitating low back pain but no radicular pain. He expressed the opinion that his employment as a dent remover involved working in confined spaces, with heavy weights, in awkward situation and he said this will precipitate the pain in his lumbar spine.
Section 4(b) of the 1987 Act states:
“ ‘injury’ –
….
(b) includes a
‘disease injury’ , which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease”
Dr New says that Mr Syme does not suffer from a disease but has a chronic musculoskeletal condition and the employment was the main contributing factor. He also stated that his employment was the substantial contributing factor. Even though Dr New’s opinion uses language that at times is consistent with a s 4(a) injury and at other times a s 4(b) injury, he does opine that it is the type of work undertaken by Mr Syme over 30 years that has caused his lumbar symptoms. He has a history of the work requiring heavy lifting, twisting and bending. He also noted that there was no reported pre-existing pathology in his lumbar spine which I find is not surprising as Mr Syme started this work in his 20’s.
Mr Syme’s counsel relied on both limbs of s 4(b). Given there is no evidence that Mr Syme suffered lumbar symptoms before he commenced work for the respondent 30 years ago, I find it is more likely than not on the balance of probabilities that Mr Syme contracted a disease of gradual onset in the lumbar spine in the course of employment over that 30 years.
The respondent was critical of Dr New in failing to identify the disease, he does however refer to the X-ray of 3 July 2009 as showing lumbar spondylosis at L4/5, which I find is consistent with a disease process.
It certainly would have been of more assistance if Dr New had expressed his opinion more articulately, however, reading his reports as a whole I find there is sufficient evidence to establish a causal connection with Mr Syme’s work and his lumbar condition.
Dr Bosanquet has a history that Mr Syme has fairly constant low back pain with prolonged sitting and he has to change positions and occasionally he has a sharp pain radiating to his right foot and toes. Dr Bosanquet’s history however is in error when he states that Mr Syme has only had back pain since the surgery. The cervical surgeries occurred in 2018 and the treating clinical notes reveal low back pain requiring treatment on several occasions before this time. Dr Bosanquet on his examination of the lumbar spine found tenderness at the right sacroiliac joint and rotation and lateral bending were 75% of normal.
In answer to question (e) Dr Bosanquet baldly states there has been no injury to his lumbar spine. In answer to questions (k) and (m) the doctor says the condition in the lumbar spine is a disease of gradual process. But he does not explain why the employment was not the main contributing factor to the contraction or aggravation of the lumbar disease. I accept
Dr Bosanquet’s opinion that Mr Syme suffers a disease in his lumbar spine but I reject his opinion about causation because he gives no reasons whatsoever for finding no causal connection to his work. I find he has not properly considered the nature of the duties performed by Mr Syme over 30 years and whether they could have caused the disease in his lumbar spine or aggravated it. Furthermore, Dr Bosanquet does not seem to have an appreciation of the clinical notes that have references to lumbar symptoms in 2007, 2009 and 2015 and this is another reason why I find his opinion, such as it is, about causation cannot be accepted.
For these reasons, I prefer the opinion of Dr New, notwithstanding it would have been of assistance had he expressed his opinion more fully. I find that Mr Syme has discharged his onus of proof to establish injury under s 4(b)(i) of the 1987 Act. I find his employment with the respondent over 30 years was the main contributing factor to the contraction of the disease in his lumbar spine. There is no evidence of him suffering from lumbar symptoms prior to him commencing this work, which I have accepted was heavy and required him to adopt awkward positions.
In AV v AW Snell DP considered at length what evidence is relevant to establish liability under s4(b) of the 1987 Act including the following passages:
[71] In El-Achi Roche DP, considering the application of the test in s 4(b)(ii) in its current form, said:
“That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.” (emphasis added)
[72] I agree with the above passage from El-Achi. The Deputy President in El-Achi also referred, in my view correctly, to the ‘main contributing factor’ test as “one of causation”. This is consistent with the discussion of s 9A of the 1987 Act by the Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited. Their Honours referred to the “causative element” of the test in s 9A. It is consistent with the discussion in State of New South Wales v Rattenbury in which Roche DP, dealing with s 4(b) after the 2012 amendments, discussed whether ‘main contributing factor’ was satisfied, by reference to whether there were competing causal factors to the relevant ‘disease’ injury.
[73] In Bradley, a case involving s 4(b)(ii) in its current form, King SC ADP referred to the question posed by an Arbitrator, “whether or not ... the [worker’s] work throughout his working life as a painter and decorator had been the main contributing factor to the aggravation of his shoulder disease”. The Acting Deputy President described this question as the correct one.” (footnotes omitted)
The reason why I have found the lumbar spine comes within s4(b)(i) of the 1987 Act is because there is no evidence that Mr Syme contracted the disease in his spine before his work with the respondent. If I am in error in that approach, I find that any underlying, asymptomatic disease was aggravated with his employment over 30 years being the main contributing factor to that aggravation. Furthermore, while agreeing with Mr Syme’s counsel that Dr New has an “inarticulate” manner in expressing his opinion on causation, I find considering the whole of evidence I am satisfied that the employment is the main contributing factor to the disease injury. As the passages quoted above state, a doctor does not address the ultimate legal question is not fatal.

Shoulders

The treating evidence in relation to the shoulders is more difficult to ascertain as many complaints are at a time when the cervical spine was symptomatic. The following are some entries that appear to refer to discrete shoulder symptoms:
(a)    On 21 October 2014 Dr Artinian recorded pulling against force yesterday, felt pain in left shoulder with limitation of abduction on examination and tenderness over the rotator area. An X-ray and ultrasound of the left shoulder were undertaken with the latter revealing mild subdeltoid/subacromial bursal effusion.
(b)    Ms Tremain’s notes on 23 November 2015 refer to left shoulder pain with the trigger point at “subscap and rhomboids” and 15 December 2015 in addition to a complaint about the neck there is reference to “pec, subscap, supraspin”.
(c)    Dr Teo recorded on 14 August 2018 the neck and the right shoulder were sore.
(d)    Dr Florance refers to shoulder pain.
(e)    On 6 February 2019 Mr Syme’s general practitioner referred to pain in the posterior shoulders and numbness recently over the little and ring fingers.
The respondent made the same arguments about the shoulders as it had in relation to the lumbar spine. Firstly, that no one had identified the disease suffered in each shoulder. There are no radiological examinations of the right shoulder. The left shoulder in 2014 was found on ultrasound to have subacromial and subdeltoid bursitis according to Dr New’s list of radiology. The actual ultrasound states:
“The tendons of the rotator cuff are of normal contour and echotexture with no focal lesion or tear. The AC joint appears normal. The subdeltoid/subacromial bursa is slightly thickened and bunches on abduction to 3mm.
Conclusion: mild subdeltoid/subacromial bursal effusion.”[7]
[7] ARD p 94.
On examination Dr New found decreased range of movement in Mr Syme’s shoulders, particularly on the right side. The answer numbered 5 sets out the doctor’s opinion about the nature and conditions of his employment and working in awkward spaces. Dr New responded by saying the work in confined and awkward places precipitated pain in the cervical, lumbar and right shoulder. However, in answer to point 3 Dr New after referring to the diagnosis in relation to the cervical spine states “he has consequential right shoulder pain and referred pain from the cervical spine”.
Dr New does not refer to the left shoulder in the above parts of his report.
Dr New in point 12 states that his pain problem is the right shoulder not the left shoulder and that the presentation was predominantly in his right shoulder. In his history Dr New stated that currently his most severe pain is in his right shoulder, followed by his cervical spine and he has relatively equal intensity of pain in his left shoulder and back.
Dr New did assess permanent impairment in both shoulders.
I find that Dr New does not adequately express his opinion about “injury” to either the right or left shoulder. I find that in the absence of radiology testing of the right shoulder it is not possible to ascertain the cause of the pain experienced by Mr Syme and whether the right shoulder pain is indicative of an injury to the shoulder or is referred pain from the cervical injury. Another reason why I find I cannot make a finding of injury in favour of Mr Syme in relation to his right shoulder, is that Dr New does not express his opinion about causation clearly in a reasoned manner. Dr Bosanquet’s report does not assist me as it lacks reasoning.
While I was able to make a finding about the disease suffered by Mr Syme in his lumbar spine by considering all of the evidence including the treating documents which all identified L4/5 area as the site of the symptoms and this was consistent with the level of the spine with spondylitic changes on X-ray, in relation to the right shoulder I cannot do this. Quite simply Dr New does not explain at all the nature of the symptoms in the right shoulder. The lack of radiological testing also hampers me in determining the same. Therefore, I accept the respondent’s submission that a first matter to decide is what is the disease in the right shoulder. Mr Syme has the onus of proof and I find that the evidence does not enable him to discharge that onus.
In relation to the left shoulder there is the ultrasound in 2014 however that is 10 years ago. It is not possible to glean from Dr New’s report if that pathology is still existing without updated radiology. Furthermore, Dr New also does not actually express an opinion on causation about the left shoulder in his answer to point 5. Dr Bosanquet found full range of movement in the left shoulder, so his report does not assist Mr Syme.
I find I am not able to draw an inference that Mr Syme’s onus of proof has been met just because Dr New assessed a degree of permanent impairment in both shoulders. I find
Dr New’s opinion falls short of what is required from an expert in relation to expressing an opinion about causation. Mr Syme’s counsel relied upon the decision in Ly. However, at [92] in Ly Wood DP states:
“Wiki establishes that in order to reject a coherent and reasoned opinion expressed by a suitably qualified expert, it should be the subject of a coherent and reasoned rebuttal, unless it can be discounted for other cogent reasons.” (emphasis in original)
In Mr Syme’s case the problem is Dr New has not provided a “coherent and reasoned opinion” so one does not get to the situation where there needs to be a coherent and reasoned rebuttal for it to be rejected unless it can be discounted for other reasons. Mr Parker in his submissions focused on there being no basis to discount Dr New’s opinion for other reasons. As I have stated I find his opinion about causation of the injuries claimed to the shoulders falls far short of what is required from an expert. Mr Parker submitted that as an expert he can rely on his training and expertise without detailing the same as the basis for his opinion, but the problem is he has not expressed any meaningful opinion about causation of the shoulders. He does not identify what disease or pathology is suffered by Mr Syme in the shoulders.

Mr Parker also referred to the decision in Watkins as supportive of his submission that Dr New’s opinion should be accepted as he is an expert. At [59] in Watkins it was stated by Roche DP:
“What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]). An expert’s reports must be read together, and with the other evidence tendered. That is because a deficiency in one part of the expert’s evidence ‘may be made good by other material, either in another report or in oral evidence’”.
I find the treating material about the lumbar spine all identified the L4/5 region whereas with the shoulders there is not sufficient precision to enable me to identify what is the disease process in the shoulders. I found I was able to find for Mr Syme in relation to his lumbar spine, notwithstanding the deficiencies in Dr New’s report, but in relation to his shoulders I find I cannot because he does not express an opinion about the nature of the disease suffered by Mr Syme in either shoulder. He does not, in his brief comment about causation, in point 5 even refer to the left shoulder. I find his second report does not make up these deficiencies.
Therefore, I find an award for the respondent in relation to the allegation of injury to both shoulders because Mr Syme’s case is such that his onus of proof has not been discharged in relation to establishing injury to the shoulders.
I have made orders to remit the lump sum claim to the President for referral to a Medical Assessor in relation to the cervical spine, lumbar spine and scarring.

[2024] NSWPIC 649

22 November 2024