Trpcevski v Substrate Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Trpcevski v Substrate Pty Limited [2023] NSWPIC 221
APPLICANT:	Alexander Peter Trpcevski
RESPONDENT:	Substrate Pty Limited t/as Substrate Printing
senior Member:	Kerry Haddock
DATE OF DECISION:	15 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation as result of injury to thoracic spine, cervical spine and left upper extremity (shoulder); liability for injury to cervical spine and left shoulder in dispute; applicant relied on frank injury and aggravation, acceleration, exacerbation or deterioration of disease as a result of nature and conditions of employment; Held – accepted that the nature of the applicant’s work was heavy and at times repetitive; applicant’s evidence that he was fit and well, with no symptoms before frank injury to thoracic spine; no evidence in applicant’s first statement of injury to other than thoracic spine; no contemporaneous medical evidence of injury other than to thoracic spine; injury not due to nature and conditions of employment but to frank lifting incident; award for respondent for injury to cervical spine and left shoulder; matter remitted to President of the Personal Injury Commission for referral to Medical Assessor for assessment of permanent impairment as a result of injury to thoracic spine.
determinations made:	1. There is an award for the respondent for the claim for injury to the cervical spine and left shoulder. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 16 March 2016 (deemed) – disease (b) Body systems/parts: thoracic spine (c) Method of assessment: whole person impairment 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents dated 15 February 2023, and attached documents, and (d) Application to Admit Late Documents dated 11 April 2023, and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant, Alexander Peter Trpcevski (Mr Trpcevski) was employed by the respondent, Substrate Pty Limited t/as Substrate Printing, as a graphic designer/printer/production assistant.
Mr Trpcevski sustained injury to his thoracic spine on the deemed date of 16 March 2016. He also claims to have sustained injury to his cervical spine; lumbar spine; left shoulder; and a psychological injury.
By letter dated 20 April 2022, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The date of injury was stated to be 6 October 2015 (deemed).
The applicant claimed the sum of $62,849.79 in respect of 24% whole person impairment (WPI) as a result of injury to his neck; thoracic spine; lumbar spine; and left shoulder.
On 16 June 2022, the respondent’s insurer, AAI Limited t/as GIO (GIO), issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed that the applicant was entitled to permanent impairment compensation, “and the claimed consequential condition”.
GIO accepted that the applicant had sustained injury to his thoracic spine, but disputed that he had sustained injury, including injury due to the aggravation, acceleration, exacerbation or deterioration of a disease, to his cervical spine, lumbar spine, or left shoulder. It also disputed that his “claimed conditions” were consequential to his accepted injury on
6 October 2015.
As GIO maintained that the applicant’s accepted injury had not resulted in more than 10% WPI, it disputed that he was entitled to permanent impairment compensation, pursuant to s 66(1) of the 1987 Act.
GIO issued the applicant with a further notice dated 11 January 2023. The notice was in substantially the same terms as that dated 16 June 2022, but added that it disputed that the applicant had contracted a “disease injury”.
The applicant lodged an Application to Resolve a Dispute (the Application) on
15 December 2022.
The applicant claimed to have sustained injury due to the aggravation, acceleration, exacerbation, or deterioration of a disease, deemed to have occurred on 16 March 2016, to his neck, thoracic spine, lumbar spine, and left shoulder; and psychological injury.
The injury was described as due to the nature and conditions of the applicant’s work, as described in his statement, including the incident on 6 October 2015.
The applicant claimed the sum of $62,849.79 in respect of 24% WPI as a result of injury to his cervical spine; thoracic spine; lumbar spine; and left upper extremity.
The respondent lodged its Reply on 11 January 2023. It disputed that the applicant received injury to his cervical spine, lumbar spine and left upper extremity, and that employment was a substantial contributing factor to the injury; that the applicant suffered WPI as alleged or at all; and that employment was the main contributing factor to any disease contracted by the applicant, or any aggravation, acceleration, exacerbation, or deterioration of a disease.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has sustained injury to his cervical spine and/or left upper extremity (left shoulder).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for preliminary conference before me on 6 February 2023. Mr Driscoll appeared for the applicant, who was present. Mr Lott appeared for the respondent, instructed by Mr Mackie of GIO.
The Application was amended to delete the claims with respect to the lumbar spine and psychological injury.
The matter was listed for conciliation/arbitration hearing before me on 18 April 2023, on the Teams platform. Mr Morgan of counsel, instructed by Mr Driscoll, appeared for the applicant, who was present. Mr Grant of counsel appeared for the respondent, instructed by Mr Lott.
Mr Mackie also attended.
The parties agreed that, regardless of the outcome of the dispute as to injury to the applicant’s cervical spine and left shoulder, the medical dispute as to impairment as a result of the accepted injury to his thoracic spine is to be referred to a Medical Assessor, who is to be provided with all the documents in evidence before me.
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 and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 15 February 2023, filed by the applicant, and attached documents, and
(d)    Application to Admit Late Documents dated 11 April 2023, filed by the respondent, and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Alexander Peter Trpcevski

The applicant’s first statement is dated 20 September 2016.
His duties for the respondent included liaising with clients; setting up files on the computer to be printed; setting up the computer for colour and alignment; setting up print paper, which was manually fed, and could weigh from 14kg to 20kg; taking paper, which could weigh up to 40kg, and was sometimes placed on the ground, to the guillotine; and placing bundles, weighing up to 1kg, in boxes.
The boxes were then manually placed in his vehicle for delivery to customers. There could be 10 boxes, which were manually delivered. He was expected to make four or five deliveries each day, until they started using a courier service, after which he was expected to make two deliveries a day.
He could have five or six printing jobs a day, using on average up to three reams of paper.
He was also required to clean the premises every day, using a mop and dustpan, collecting rubbish, and moving furniture.
He was expected to unpack deliveries of reams of paper, each of which could weigh up to
20kg. They received up to 40 reams twice a week. They had to be removed from the truck. He unloaded the truck by himself. During his last year with the company, when they employed Richard Simpson, he sometimes helped. They were the only two printers.
When he first started, his boss, Damien Woods, told him to lift three or four reams on the one occasion to save trips. When Mr Woods was not there, he would take one, but on average he would take three or four. Mr Woods also told him to take as much of the boxes as he could lift on the one occasion. When Mr Woods was not there, he would take less, but he would complain that he was too slow.
Possibly twice a month, he would go with the boss to set up marketing stands. This required them to jointly lift 40kg to 60kg wooden prisms, which supported the billboards.
When he first started work for the respondent, they had to move printing equipment and machinery, which weighed a lot, up and down stairs.
On 4 September 2015, he lifted two boxes, that would have weighed in total 30kg to 40kg, to take to FRF, a courier service three doors up in the same complex.
The boxes were on the ground, and he bent his knees and kept his back straight as he lifted them. He had almost straightened his legs when he heard a “thud” from his middle left side back. He felt pain from where the thud occurred around his chest area to the front of it. He put the boxes on the table as they were really heavy.
He waited for about 30 seconds to one minute and picked up both boxes. Damien shouted, “have you taken them yet?” and he said was going now. He walked the boxes to FRF, returned to the print room, and took the third box to FRF.
He then told Richard and Damien he had severe pain in his ribs when he lifted the boxes. Damien replied that he had better stop “bending over and wanking”. He told him he didn’t think it was funny. He then went back to work.
He was in consistent pain from the middle left of his back to the centre of his chest from that day onwards. He felt like he was having a heart attack. He had trouble sleeping. He continued to work, and every day told Damien he was in pain.
About five days later, the pain got worse. He saw an Indian female doctor, whose name he could not remember, at Hurstville City Medical Centre. She prescribed anti-inflammatories. He told her he had injured himself at work and she provided a normal medical certificate for one day off.
The next day, he gave Damien the certificate. He asked if he was doing all right, and he replied that it felt like he was having a heart attack.
He continued to go to work, but he was in pain. About a month later, he saw an Indian female doctor at Healthpac Medical Centre at Hurstville. She prescribed the same anti-inflammatories. He told her he had injured himself at work and she issued a normal medical certificate that said he was unfit to work for one day. He handed that certificate to Damien.
He continued working and the pain continued. On 8 September 2015, he went to SOS Spinal Orthopaedic and Sports Physiotherapy, and received physiotherapy from Mr Nazen. This did not make the pain any better. He told Mr Nazen he had injured himself at work.
Every day he told Damien he was in pain, and he would say he would lessen his workload. He also told Damien he was having physiotherapy.
On 29 September 2015, he went to Miranda Osteopathic Centre. He was treated by Madeline Hogan and Matthew Stott for his back, and they thought he had a “slip rib”. He told them he had injured himself at work. He also told Damien he had seen them. He visited the centre a number of times, the last on 12 March 2016.
On 2 October 2015, he saw Dr Richard Hurst, who referred him for X-ray. He told the doctor he had injured himself at work and he issued him with a normal medical certificate for a couple of days off. He provided the certificate to Damien.
He had the X-ray on 6 October 2015, and a couple of days later Dr Hurst examined him and the X-rays, and prescribed Panadeine Forte.
He returned to work. The pain in his back became unbearable, and about a month after the X-ray he went to St George Hospital after work. He was treated by a female doctor and told her he had injured himself at work.
He continued to work. “After this,” he came home and was lying in bed because of the pain in his back.
On 4 March 2016, he was suffering the usual back pain before he started work. He did the same sort of jobs he did every day.
He was lifting two reams of paper from a shelf about 10cm from ground level when he felt pain in the same place, the middle left side of his back, as on 4 September 2015. He put the paper in the machine.
He stayed at work, and later told Damien what had happened, and that he would need a break from work. He may have taken a few days off.
The pain was worse over the next two weeks, but he continued to work. His last day of work was 16 March 2016.
He saw Dr Hurst on 17 May 2016, and was referred for MRI. He had not seen Dr Hurst after that.
On 25 May 2016, he saw Mr John Doherty, chiropractor. He had seen him seven times, the last being on 30 June 2016.
The applicant consulted solicitors on 2 June 2016.
The applicant’s girlfriend’s brother told him about a “union preferred” doctor, so on
3 June 2016 he consulted Dr Eric Lim, who examined him and followed up GIO approval for MRI. He had the MRI on 8 June 2016. He had continued to consult Dr Lim, who had referred him to a physiotherapist and a psychologist.
Dr Lim had also referred him to Associate Professor Peter Papantoniou, whom he had seen on 21 July 2016.
He was still suffering pain from his back and chest, and also depression and anxiety. He had not had any previous injuries to his back, shoulder or anywhere else. He had had surgery on his right little finger at the age of six.
He had been asked by the investigator if he had sent Richard a text on 3 August 2015, stating that he had a bad shoulder, suffered playing league the day before. He could not remember if he had sent this text. He had not played league since primary school. He did not wish to make any other comment about this text.
The applicant’s second statement is dated 15 November 2022. His evidence about his duties largely accorded with his first statement, with some further detail. His evidence about the injury and his treatment was repeated.
He unloaded shipments of paper weighing from 14kg to 20kg per ream, once a week. He had to lift the paper from 10cm from the ground onto the bench or printer, 15 or 20 times a day, sometimes more. They sometimes went through 30 to 40 reams a day.
Once the paper was printed, he took huge blocks from the printer, two or three reams to save time, to the guillotine. He would then stack the paper or books in boxes in excess of 20kg and move the boxes to his car for delivery – around 10 boxes at a time, sometimes more. There was no trolley.
On average, he would have to lift 10 boxes from his car, making four to five deliveries a day until they started using couriers, after which he was expected to make one to two a day.
When he first started, he, the boss, and the manager moved a massive printer and lots of paper up three flights of stairs when moving to the Marrickville building. It was a five-man job.
He moved six Horizon engines, weighing in excess of 50kg each, off the back of the truck in Marrickville, and back into the truck when they moved to Tempe.
When they moved to bigger premises, they had to move everything again. He did most of the heavy lifting alone. This went on over a one-week period. He and the manager moved tables and chairs, and other office furniture, from Alexandria to Tempe.
After 4 September 2015, he tried to continue, to see if the symptoms would go away. They tried to be accommodating, but the workload and labour intensiveness of the duties meant he was still lifting boxes, causing him to aggravate his pain and discomfort.
He stopped going to Mr Doherty on advice from his “union doctor”, who said it would prejudice his case, as he would not be able to get payment for such treatment from the insurer.
He listed his symptoms as infrequent pain in the left side of the chest/back; inability to sit for prolonged periods; depression and anxiety; headaches; lack of appetite when in pain; ongoing pain in the upper back; digestive problems; and “down in spirits”. He has added “no”, but the question he was asked is not apparent.
The applicant concluded that he got pain, discomfort and restriction of movement in his neck, back and shoulder, and had serious mental issues of depression.

Medical evidence

Loxley Surgery

On 2 October 2015, Dr Hurst recorded a history of several years scapular back pain at T4/5, worse in the last three weeks.
There was no history of trauma. The applicant was “getting better (having osteopathy)”. His work involved a lot of lifting, bending, and desk work. He thought it came [on] with a clean pull, “in the 100s of kgs”. He had seen other doctors and hospital.
Dr Hurst recorded back pain – acute on chronic. He requested X-ray of the chest, thoracic spine, and left ribs.
On 7 October 2015, Dr Hurst recorded a telephone consultation with the results of the investigations, which were essentially normal.
On 10 May 2016, Dr Hurst recorded “? cervical radiculopathy. No lifting for over 3 months”. The applicant had had lots of physiotherapy and exercises. He still had mid-thoracic back pain, and tingling in the left hand, worse at night.
The applicant was given exercises for his lower back. MRI of his cervical spine was requested.
On 17 May 2016, Dr Hurst again recorded “? cervical radiculopathy”. The applicant was going to make a WorkCover claim.
On 14 June 2016, Dr Hurst recorded that MRI of the cervical and thoracic spines showed, relevantly, minor disc desiccation at C2/3, with no focal disc protrusion or extrusion; and left paracentral disc protrusion at T7/8. It was possible that the applicant had a very small syrinx, if there had been significant trauma at that this level, or it may have been an incidental finding.
Dr Hurst referred the applicant to Dr Ali Ghahreman.
Dr Hurst told Dr Ghahreman that he had first seen the applicant in October with persistent mid-thoracic back pain, which came on after lifting heavy equipment at work.
The applicant had seen multiple doctors and physiotherapists. X-rays were normal. He undertook further physiotherapy and core strengthening exercises, but still could not sit for any prolonged period. He had also developed some numbness and tingling in the left fingers.
Dr Hurst was concerned that the applicant may have a higher lesion. MRI of the cervical spine was essentially normal, but there was a disc protrusion at T7/8 on the left and possible syrinx.
Due to the applicant’s continuing pain and disability, Dr Hurst was concerned that surgery may be necessary. The symptoms in the applicant’s left hand may have been due to carpal tunnel.
Dr Hurst responded to a questionnaire from GIO on 29 June 2016.
The applicant’s diagnosis was disc protrusion at T7/8, due to heavy lifting of paper and other printing materials. The diagnosis had been reached on clinical examination and MRI of the cervical and thoracic spines.
Dr Hurst recorded that the pain came on after heavy lifting at work, which indicated that the acute injury occurred at work.

Workers Doctors

On 3 June 2016, psychologist Ms Erin Carmody recorded that the applicant was in severe pain, “bedridden”. At work there was peer pressure to work harder. He had gained 35kg.
Ms Carmody recorded on 10 June 2016 that the applicant could not do much. He could not bend or sit. He had a “burning sensation. Not huge amount of pain. 9 months”.
On 15 July 2016, Ms Carmody recorded that the applicant’s back was feeling better at the moment. He was thinking about going back to college or work.
On 5 August 2016, Ms Carmody recorded some family issues. “Better with back”. The applicant would like to draw again “getting closer feels through back”.
On 2 September 2016, Ms Carmody again recorded family issues. The applicant was “physically – good for a few hours then dull pain for an hour. Not comfortable sitting for long periods”.
Dr Lim reported on 16 September 2016.
Dr Lim described the applicant’s injury as neck/back. The diagnoses were thoracic spine sprain; cervical radiculopathy; adjustment disorder with anxiety and depression; left shoulder strain; and T7/8 disc protrusion affecting the thoracic cord.
The applicant had presented on 3 June 2016, with a history that on 6 October 2015, he suffered a neck/back injury from repetitive lifting boxes at work, with left arm pain. He managed to work until 11 March 2016.
The significant findings on examination were ongoing back pain and secondary psychological distress.
On 31 October 2016, Ms Carmody recorded that the applicant was managing his pain independently. He had a goal of weight loss, having gained a lot of weight due to injury.
Mr Carl Nielsen, psychologist, reported on 19 October 2021.
Mr Nielsen recorded a history that around the beginning of September 2015, the applicant began to experience pain in his neck and back, predominantly on the left, from repetitive lifting of boxes of booklets.
On 6 October 2015, while lifting a heavy box, the applicant experienced severe pain in his spine, back and neck. He found it difficult to move.
Dr Lim had referred the applicant for scans, which revealed bulging discs in his thoracic spine and cervical nerve root impingement. His last day of work was approximately mid-October 2015.
Dr Lim reported to GIO on 14 October 2021.
The applicant’s initial presentation was on 3 June 2016, following neck/back injuries sustained on 6 October 2015.
Dr Lim’s diagnoses were thoracic spine sprain; cervical radiculopathy; scapulothoracic injury; adjustment disorder with anxiety and depression; left shoulder strain; and T7/8 disc protrusion affecting the thoracic cord.
The history recorded was neck/back injury from repetitive lifting boxes at work, with left arm pain.
Dr Lim ordered X-ray and MRI. The applicant was referred for physical therapy, and to a psychologist, psychiatrist, and A/Prof Papantoniou.
Dr Lim opined that the applicant had sustained neck/back injury from repetitive lifting at work, with left arm pain. As a result, he had suffered chronic pain and incapacity, which caused his worsening depression.
Dr Lim’s report dated 1 August 2022 is in substantially similar terms. The applicant’s psychological diagnosis was by that stage said to be major depression.

Dr Richard Powell – orthopaedic surgeon

Dr Powell was qualified by the respondent and reported first on 14 July 2016.
Dr Powell recorded a consistent history of the initial injury. The applicant lifted a box weighing an estimated 25kg, with the sudden onset of sharp pain in the thoracic spine, between the shoulder blades.
The applicant had been referred for MRI of the cervical and thoracic spines. Dr Powell noted that the scans of the cervical spine were normal, and in the thoracic spine a small disc lesion was noted at T7/8, with a possible underlying syrinx.
The applicant had a further work-related incident in March 2016, with a similar mechanism of lifting and twisting. It resulted in a severe exacerbation of his mid-thoracic pain.
Dr Powell recorded complaints of a constant sharp pain in the middle of the thoracic spine, from the shoulder blades to the lumbar spine. There was intermittent numbness of the left upper limb. The applicant was aware of stiffness and restriction in range of motion of the back.
The applicant was compliant and cooperative, with no suggestion of overreaction or exaggeration. Dr Powell observed that he was in mild to moderate discomfort during the assessment.
Examination of the applicant’s cervical spine and upper limbs was normal. Dr Powell examined the applicant’s thoracic and lumbosacral spines, but not his left shoulder.
Dr Powell opined that the applicant injured his thoracic spine on 6 October 2015, which was aggravated in March 2016. His presentation was consistent with a musculoligamentous injury of the thoracic spine, in association with a T7/8 disc lesion. Conservative management had not led to sustained symptomatic improvement.
Dr Powell provided a supplementary report on 9 August 2016. It is directed to the applicant’s capacity for employment and is not relevant to this claim.
Dr Powell next reported on 27 January 2017. The purpose of the report was to assess liability, work capacity, and treatment.
The applicant had been referred to A/Prof Papantoniou, and conservative management was recommended. Physiotherapy had resulted in symptomatic improvement. He was due to commence hydrotherapy, followed by a gym-based exercise program.
The applicant indicated that his condition had improved. His thoracic spine remained symptomatic. He reported intermittent aching pain in the interscapular region. Pain extended laterally to the periscapular region, though was otherwise fairly well localised. There was no radiating upper or lower limb pain, or paraesthesia or pins and needles. The applicant was aware of some slight stiffness in range of motion.
Dr Powell diagnosed musculoligamentous injury of the thoracic spine in association with a thoracic disc lesion as a result of the workplace incident in October 2015.
Dr Powell next reported on 18 May 2022.
The applicant continued to complain of back pain, which he localised to the thoracic region, in a diamond shaped area, extending from the base of the skull to the upper lumbar region, and bilaterally into the thoracic paraspinal region across to the scapulae. The pain radiated from the midline, more marked on the left. It was variably described as aching and sharp.
The applicant was aware of “tingling” involving the left hand on a global though intermittent basis. There was radiation of pain down the posterior aspect of the left upper limb along the line of the triceps. He did not complain of any lower lumbar pain or involvement of the lower limbs. He was aware of stiffness and restriction in range of motion involving the cervical and thoracic spines.
Dr Powell recorded that the applicant was in moderate discomfort at times during the assessment. He appeared pain focused, and some inconsistency was noted between observed movements and those on formal examination, particularly in relation to the left upper limb.
Dr Powell examined the applicant’s cervicothoracic spine and shoulders. Examination was characterised by diffuse tenderness in the thoracic region and some non-specific left upper limb symptoms, without definitive features of radiculopathy or myelopathy.
Dr Powell diagnosed musculoligamentous injury to the lumbar [sic] spine in association with a thoracic disc lesion. The applicant’s presentation was a little unusual, and there appeared to be evidence of a psychosomatic component, but that did not alter the fact that he suffered a significant injury to his thoracic spine in 2015.
Dr Powell assessed WPI of 7% as a result of injury to the applicant’s thoracic spine. He found no evidence that the applicant sustained any specific injury to his cervical spine, lumbar spine, or left shoulder. The initial MRI scans of the cervical spine immediately after the accident were completely normal.
Although the applicant had some referred symptoms, he had not sustained any injury to his cervical spine or left shoulder, and WorkCover Guides indicate that for compensation to be considered, there needs to be an injury.
Dr Powell opined that the minor restriction in range of motion of the applicant’s shoulders reflected the thoracic spine pathology. His inability to obtain a full range of motion was due to his thoracic spine injury and not to any specific injury or pathology involving the shoulders. The referred nature of the problem is taken into account when considering placement of a patient in DRE Category II. The impairment allocated reflected the accepted diagnosed condition, supported by appropriate imaging.
Dr Powell disagreed with Dr Dias’ assessment of WPI, the rationale for which “has been provided above”.
Dr Powell’s final report is dated 6 January 2023.
Dr Powell was asked to review MRI of the applicant’s cervical spine, supplementary report of Dr Dias, and report of Dr Lim.
Dr Powell noted that the MRI confirmed the absence of any significant structural pathology in the cervical spine. The mechanism of injury described by the applicant would not normally be the cause of a major structural injury to the cervical spine that would continue to produce symptoms seven years later. The history was also not consistent with the cause being cervical in origin.
In the context of the reported mechanism of injury, symptom profile, clinical examination and normal MRI, Dr Powell opined that it was highly unlikely that the incident in 2015 caused a significant injury to the cervical spine.
Dr Powell had not suggested that investigations were required to make a diagnosis. He agreed with Dr Dias that they should form only part of a clinician’s assessment tools. The others are careful history-taking to ensure an accurate understanding of the mechanism of injury, and reliable clinical examination.
When considering the mechanism of injury, Dr Powell found it extremely difficult to understand how a fit, healthy, well, 26-year-old male with no pre-existing conditions, lifting a 25kg box, could simultaneously sustain significant injuries to the left shoulder, cervical spine and lumbar spine “(which I do not disagree with)”.
Dr Powell did not believe the applicant’s clinical examination causally established a direct link between the initial mechanism of injury in 2016 to the thoracic spine, and the subsequent development of causative structural pathology in the cervical spine, lumbar spine, and left shoulder.
Dr Powell’s reference to the absence of any supporting investigative findings served only to highlight “a further missing piece of the puzzle” during the period from 2016 to 2022. The applicant underwent an extensive management program under the care of a well-respected specialist. Dr Powell thought that, had he demonstrated features to suggest a related injury to the left shoulder or lumbar spine, this would have been investigated.
As regards Dr Dias’ comments about “referred pain”, Dr Powell pointed out that not all the applicant’s pain needed to have a direct anatomical link. In this case, pain extending from a mid-thoracic region involving the paraspinal and periscapular musculature will in turn have an impact on shoulder range of motion, and contribute to pain on movement of the shoulders, though the link is not a direct anatomic one. The concept of referred pain in this case needed to be considered in the context of a chronic pain syndrome where almost by definition the pain could not be explained solely on the basis of anatomy.
Dr Powell concluded that it was important to understand the issue in question was causation. He was not saying that Mr Trpcevski did not have symptoms in the cervical spine, left shoulder or lumbar spine. He did not feel that Dr Dias had established a causal connection between the initial workplace incident in 2016, in which the applicant sustained a thoracic spine injury, and the subsequent development of widespread musculoskeletal symptoms involving the cervical spine, left shoulder and lumbar spine.
There may well be an explanation for the applicant’s more widespread musculoskeletal symptoms, and they may also warrant further investigation, although Dr Powell did not believe it had been established that the presence of these symptoms six years after the incident could be attributed to that mechanism of injury in 2016.

Associate Professor Peter J Papantoniou – orthopaedic and spinal surgeon

A/Prof Papantoniou reported to Dr Lim on 21 July 2016.
A/Prof Papantoniou recorded a consistent history of injury in September 2015.
The applicant had investigations that demonstrated T10/11 focal disc bulging impinging on a cord. He had a very large T7/8 disc prolapse, impinging on dura and cord.
A/Prof Papantoniou opined that the applicant had suffered two disc prolapses as a direct result of his work injury. Given that the pain was slowly improving, he recommended conservative management, practising the usual back precautions.
A/Prof Papantoniou again reported to Dr Lim on 19 September 2016.
The applicant continued to improve slowly. He noted severe pain in the mid-thoracic region when he sat without a lumbar support.
The applicant had a previously diagnosed T10/11 and T7/8 disc prolapse. These were work-related and the source of his pain.
On 16 February 2017, A/Prof Papantoniou reported that the applicant continued to have severe lower back pain that was improving with maximal non-operative management.
On 4 May 2017, A/Prof Papantoniou reported that the applicant’s lower back pain had not changed since his last review.
A/Prof Papantoniou reported on 10 August 2017 that the applicant was doing 22 hours per week of online training. He continued to have severe lower back pain associated with his work injury.
On 31 July 2019, A/Prof Papantoniou reported to Dr Lim.
The applicant continued to have left-sided thoracic pain medial to the scapula. He also had posterior shoulder pain and pain in the left trapezius region.
The applicant had presented with MRI of his cervical and thoracic spines. This demonstrated C3/4 disc desiccation with loss of lordosis. At T8/9, there was a left-sided disc bulge indenting the thecal sac. There was a central posterior disc bulge at T7/8.
A/Prof Papantoniou opined that it appeared that most of the applicant’s pain was coming from the T8/9 level. He had sent Mr Trpcevski for a left T8/9 nerve root block.
On 23 December 2019, A/Prof Papantoniou reported that the injection was of no benefit. He still believed the applicant’s pain was coming from the thoracic region. He had referred the applicant to Dr Raymond Schwartz.

Workers Physiotherapy

Mr Alistair Choie reported on 20 January 2017.
Mr Choie referred in the heading of his report to “neck/back; 6/10/2015”.
Mr Choie recorded a history that on 6 October 2015 the applicant reported a sudden onset of mid-thoracic pain whilst lifting a 25kg box. He denied any significant previous injuries to his thoracic spine before this incident.
MRI had confirmed T7/8 and T10/11 disc bulge.
Mr Choie recorded intermittent left thoracic pain, “0-4/10”. The applicant’s main restricting factors were weakness and pain.

Dr Bhisham Singh – orthopaedic and spine surgeon

Dr Singh reported to Dr Sebastian Calvache-Rubio of Workers Doctors on 3 November 2020.
Dr Calvache-Rubio had referred the applicant with chronic upper back pain for over five years, after a work injury.
Dr Singh recorded that the applicant had thoracic back pain. He had an injury to his upper back as well as his neck from repetitive lifting at the workplace.
The applicant continued to have pain in the upper back between the shoulder blades. He would benefit from MRI and nuclear medicine scans and X-rays.

Dr Uthum K Dias – occupational physician

Dr Dias was qualified by the applicant and reported on 7 March 2022.
Dr Dias recorded a history that the applicant’s job was heavily manual and repetitive. It involved printing materials, graphic design duties, liaising with clients, computer based printing tasks, lifting and manoeuvring reams of papers, boxes of papers and boxes of market materials that frequently weighed in excess of 20kg to 30kg, deliveries, feeding industrial printing machines, and cleaning. He assisted with moving heavy printing equipment on an as required basis, and with the relocation to Tempe in 2014.
The applicant stated that around 70% of his job involved heavy manual tasks, including prolonged walking and standing, repetitive bending and twisting of the torso and lower back, and heavy lifting. Thirty percent of his job involved prolonged seated computer-based work.
Dr Dias recorded a history that on 4 September 2015, the applicant was lifting boxes from the floor. As he lifted two to three boxes, he realised they weighed between 30kg and 40kg each. He felt worsening pain in his mid-back, neck and left shoulder region. As he lifted the second box, he heard a “thudded” in the mid left thoracic spinal region. He was feeling pain radiating from his mid to lower thoracic spinal region, around to the left side of his chest wall.
The applicant had continued to suffer with ongoing symptoms of pain, stiffness and discomfort affecting his mid-thoracic spine (left-sided), cervical spine, left shoulder and lumbar spine on a continual basis since September 2015.
Dr Dias diagnosed chronic cervical spine stiffness and discomfort, secondary to acute musculoligamentous strain; chronic discogenic thoracic spine pain, stiffness and discomfort, with associated persisting left T7 radiculopathy, secondary to acute T7/8 disc protrusion; chronic left lumbar spine pain, stiffness and discomfort, secondary to acute musculoligamentous strain; and chronic left shoulder impingement syndrome, secondary to an acute rotator cuff tendon strain with likely associated chronic subacromial bursitis.
Dr Dias opined that there remained a direct causal relationship between the accident on
4 September 2015 and the applicant’s current conditions “(an underlying pathology)”, associated with his neck, thoracic spine, lumbar spine, and left shoulder regions. As a result of the incident, he sustained discogenic injury to his thoracic spine, and soft tissue injuries to his neck, left shoulder and lumbar spine.
Dr Dias assessed WPI of 24%, comprising 5% WPI as a result of injury to the cervical spine; 17% WPI as a result of injury to the thoracic spine; and 4% WPI as a result of injury to the left upper extremity (left shoulder). He assessed 0% WPI as a result of injury to the lumbar spine.
Dr Dias provided a supplementary report dated 6 July 2022. He commented on Dr Powell’s report dated 18 May 2022.
Dr Dias disagreed with Dr Powell and the reasoning in GIO’s dispute notice. He stated that the applicant had reported ongoing symptomatology in his neck, left shoulder, lumbar spine and thoracic spine since 4 September 2015. He had been referred for imaging of his cervical, thoracic and lumbar spines. He had not had investigation of his left shoulder.
Dr Dias opined that the absence of significant documented radiological findings on imaging did not, in and of themselves, exclude the possibility of injuries to the cervical spine, lumbar spine, or left shoulder. Diagnoses should be made on history and examination, in conjunction with radiological studies. The applicant’s left shoulder had not been investigated, and it would therefore be clinically irresponsible to exclude objective pathology as being causative in relation to his symptomatology.
Dr Dias opined that the symptoms in the applicant’s neck, lumbar spine, and left shoulder were not referred pain from his thoracic spine injury but reflected soft tissue injuries. He did not believe referred pain to the lumbar spine or neck from the thoracic spine was anatomically possible. It was possible that the applicant’s left shoulder symptoms were referred from his left parascapular region, but he was tender to palpation over his left shoulder region, and his range of movement was limited by pain and discomfort in his left shoulder region, rather than his left parascapular musculature.

Dr Dias opined that it would be worth investigating the applicant’s left shoulder with ultrasound, or preferably MRI, to document objective pathology.

SUBMISSIONS

The submissions have been recorded, so I will summarise them briefly.

Applicant

The applicant submitted that the deemed date of injury is 16 March 2016, the last date of employment. He claims to have sustained aggravation, acceleration, exacerbation or deterioration of a disease, affecting his cervical spine, thoracic spine, and left shoulder.
The applicant submitted that Dr Dias had taken a very detailed history of his work and its consequences from a pathological point of view. He submitted that Dr Powell had not turned his mind to the dispute, that is that the nature of the work the applicant did, which was not contested.
The applicant submitted that his treating practitioners directed attention to what was thought to be the principal generator of complaint, that is his chest and thoracic spine. He also complained of altered sensation in his left arm. It was not until Dr Hurst and then Dr Lim turned their minds to pathology elsewhere that there was investigation of his cervical spine, where pathology was identified.
The applicant referred to his detailed statement about his background and the heavy nature of his work, generally on his own.
The applicant submitted that it was curious that the investigator retained by the respondent had not recorded anything about his shoulder, but noted a history relevant to shoulder and scans were taken of his shoulder in the months prior.
The applicant submitted that the referral by Dr Hurst to Dr Ghahreman, in which he described the onset of symptoms, looking first at the back, then the neck and left arm, is reflected in his notes.
The applicant referred to the cautionary note of the Court of Appeal in Davis v Council of the City of Wagga Wagga,[1] but submitted that Dr Hurst had recorded several years of left scapular pain. This was “out of left field”, but he was only 25 and had been working for the respondent for over three years.
[1] [2004] NSWCA 34.
The applicant submitted that the timeline was three years of very heavy employment; he saw Dr Hurst, who identified pathology related to heavy work, recorded issues associated with the chest and thoracic spine, but also cervical radiculopathy; and referred him for investigation and to a specialist.
The applicant submitted that MRI of the thoracic and cervical spines on 8 June 2016 demonstrated pathology at both levels, which was accepted by Dr Powell.
The applicant submitted that A/Prof Papantoniou strayed away from the thoracic spine, despite recognising its pathology, and talked about the lumbar spine. He observed the investigations of the cervical spine but did not identify any specific treatment directed towards it. He noted the issues associated with the shoulder, and the applicant’s heavy manual job, which he could never do again.
The applicant referred to Dr Lim’s evidence. No investigation was directed to the left shoulder. Dr Lim identified separate pathology in the left shoulder.
The applicant submitted that Dr Powell had not explained the origin or cause of altered sensation in his left hand. He had not dealt with how thoracic spine pathology could cause neurological symptoms and radiculopathy in the left arm. He submitted this was a serious failing in the respondent’s denial of liability.
The applicant submitted that the certificates of capacity referred throughout to problems associated with his neck, thoracic spine, and left shoulder. Dr Lim recorded consistent complaints with respect to his neck and thoracic spine.
The applicant relied on the opinion of Dr Dias, whom he submitted obtained a much more complete history than Dr Powell. He submitted Dr Powell did not deal with anything other than the incident in November 2015 and recorded no history of the nature of his work. He had opined that it was highly unlikely that the incident in 2015 caused a significant injury to the cervical spine. He did not say it was not injured and focused on events in 2015.
The applicant submitted there was overwhelming evidence from his treating doctors and
Dr Dias that he had pathological consequences from the nature of the work he performed, principally in the cervical and thoracic spines. Dr Dias provided support for a structural problem in his left shoulder.
The applicant submitted that the dispute should be referred to a Medical Assessor for assessment of permanent impairment as a result of injury to his cervical spine; thoracic spine; and left upper extremity, with the deemed date of injury 16 March 2016.
In reply to the respondent, the applicant submitted there was no basis on which to point to a note taken by a general practitioner (GP) in 2016 and suggest that something came from it. The respondent had had the documents for some time and had not advanced any medical evidence to suggest that thoracic pain was other than related to his work. This was confirmed by the substantive reports and the referral to Dr Ghahreman.
The applicant submitted he had not abandoned the specific event, but adopted and embraced it. It is part of the symptom complex, but also part of a bigger picture, dealt with by other doctors, but not by Dr Powell. He submitted this was a critical failing in the respondent’s case. The other failure is that of Dr Powell to provide a rational explanation as to why symptomatology in a man of this age was seen in the left arm in circumstances where it is uncontested that he was doing heavy physical work on his own.
The respondent relied on contemporaneous records, which the applicant submitted were only as good as what they showed. He referred to the statement taken by the investigator, which referred to issues with his shoulder, but did not refer to this in the body of the report. He submitted he was being investigated and giving a history of complaints about his cervical spine and shoulder before the statement was made, but the investigator had not recorded a history of it three months later.
The applicant submitted that contemporaneous records showed complaints and a referral to a specialist. This was confirmed by the GP, the “man on the ground”, who was treating him when he ceased work. The physiotherapist was concentrating on his thoracic spine, six months after investigations and complaints about his arm and cervical spine.

Respondent

The respondent submitted that the applicant had not established on the evidence that he had sustained injury to his neck or left shoulder.
The respondent referred to the power of contemporary evidence. It submitted there was inconsistency of complaints and recording, and inconsistencies in the approaches taken by the applicant’s doctors.
The respondent referred to Onassis and Calerropoulos v Vergiottis.[2] It submitted that the contemporaneous documents are those of Dr Hurst and perhaps the applicant’s first statement. There is a difference between the statements, the second statement being more recent, made once litigation commenced.
[2] [1968] 21 Lloyds LR 403 at 143.
The respondent referred to the applicant’s first statement, in which he said he had no previous injuries to his neck, back or shoulder before the injury at work. It submitted that it was in the statement of November 2022 that the suggestion of symptoms in the left shoulder and neck “creep in”.
The respondent submitted that the applicant’s first statement was taken relatively soon after the accident in 2015. The second statement appeared to be an adaptation of the first, with some additional information.
The respondent submitted that the applicant’s evidence that he had not suffered any previous injuries before September 2015 seemed to fly in the face of his submission that the work he was performing had created the problems he was suffering. His submissions had focused heavily on the work activities, not the event itself.
The respondent referred to the applicant’s evidence about the injury. At no point did he make any complaint about symptoms in his neck or left shoulder. The respondent submitted that is significant.
The respondent then referred to the evidence of Dr Hurst, who noted “thinks it came on with a clean pull”. It submitted this was pretty clear, that the applicant had an event at work, while he was doing something specific, and had onset of symptoms, predominantly in the thoracic spine.
The respondent submitted that Dr Hurst recorded scapular back pain for several years, which was years before the applicant joined it. None of the doctors he has seen after this event was aware of this history. It is not known what the evidence may have been on causation had Drs Lim and Dias known about the prior problems.
The respondent submitted that it was significant that X-rays were organised of the applicant’s chest, thoracic spine, and left ribs. We do not know why Dr Hurst arranged MRI of the cervical spine but can assume comfortably from the entry of 10 May 2016 that he did this because the applicant was talking of altered sensation in his fingers. It was not initiated by pain in the cervical spine. There is no explanation for the altered sensation.
The respondent referred to Dr Hurst’s review, right at the beginning. It submitted this is important, as he diagnosed disc protrusion at T7/8. He then described the mechanism of injury. It submitted he clearly thought there was a T7/8 disc protrusion caused by the lift. He did not consider at that time, because he would have said so, that the applicant had an injury to his left shoulder or cervical spine.
The respondent submitted that things changed when Dr Lim came on the scene. When the applicant saw Dr Lim, there was a history of injury to the neck and back. That did not accord with the statement he gave or the history to Dr Hurst. Dr Lim diagnosed cervical radiculopathy, for which there does not seem to be any support. The respondent submitted that the diagnosis changed quite significantly.
The respondent submitted that different histories started to appear, referring to Mr Nielsen’s report. This was not a contemporaneous history. There was no history of the onset of pain over time. There was a history of a significant event, but no history at that time of severe pain in the neck.
The respondent submitted that this is an example of what happens with the passage of time. The condition widened beyond what was the case in 2015. That is the problem for the applicant in this case.
The respondent referred to Mr Choie’s report, and the history of the mechanism of injury. There was a history of thoracic pain. The applicant denied any significant previous injury. The respondent submitted I would comfortably think that the applicant did not give a history of neck pain or pain in his left shoulder, and the onset of symptoms was the frank event in October 2015, because there is no reference to difficulties performing heavy lifting or repetitive activity.
The respondent referred to A/Prof Papantoniou’s report dated 21 July 2016. It submitted it was clear what he was thinking. This was not a case of a person developing a condition over time, but presenting with thoracic symptoms specific to an event. This accords with Dr Hurst’s evidence and the applicant’s statement in 2016.
The respondent submitted that Dr Dias saw the applicant many years after the event. It is also probably significant that he is an occupational physician, and the applicant’s problems are more orthopaedic. Dr Dias recorded a history of no significant pre-existing condition. The applicant was presenting as under no disability before September 2015, when he had the event described.
The respondent submitted that Dr Dias had recorded symptoms in the thoracic spine, and to a lesser extent the cervical and lumbar spines, and the left shoulder. There is no history of this in the contemporaneous documents. If Dr Dias relied on that history, his report is worse for it.
The respondent submitted that it was not quite so, as recorded by Dr Dias, that the applicant did not have any pre-existing conditions or injuries, as there is the history recorded by
Dr Hurst. Dr Dias’ reference to the “causal chain” was legalistic and weakened his opinion.
The respondent submitted that the applicant’s problems relate to the episode of lifting. There is no evidence in Dr Dias’ report to support a nature and conditions type case. It relates to a specific event.
The respondent submitted that Dr Lim’s referral to A/Prof Papantoniou was with respect to the applicant’s neck and thoracic spine. What is missing is the left shoulder, and
A/Prof Papantoniou would seem to be the perfect person to send it to.
The respondent referred to Dr Powell’s second report, and submitted I would comfortably think that at that time, he thought the applicant’s symptoms pertained specifically to the thoracic spine, and not the cervical spine or left shoulder. The focus through his three reports was on the thoracic spine. It was quite clear the applicant had an injury to his thoracic spine in 2015 and perhaps shortly before he left work in 2016. It was not an injury to his cervical spine or left shoulder.
The respondent submitted that it is clear that Dr Powell took the view that the applicant suffered a specific injury in 2015, which initiated problems related to the thoracic spine alone. The development of symptoms in other parts of the body are not related to this event.
The respondent submitted there should be an award in its favour for injury to the applicant’s cervical spine and left shoulder.

SUMMARY

The applicant sustained an accepted injury to his thoracic spine, claimed to have occurred on 6 October 2015. In this Application, he claims to have sustained injury due to the nature and conditions of his employment, including the injury on 6 October 2015; and a “disease” injury, due to the aggravation, acceleration, exacerbation or deterioration of a disease. The deemed date of injury is 16 March 2016, the last date on which he performed work for the respondent.
The Application referred to the nature and conditions of the applicant’s work, as described in his statement. His submissions adopted and embraced the specific event on 6 October 2015, and he submitted it was part of the symptom complex, but also part of a bigger picture.
The applicant’s evidence, which is uncontested, is that his work for the respondent was heavy, at times repetitive, and often performed without human or mechanical assistance.
What is missing from the applicant’s evidence about the nature and conditions of his work, however, is any reference to having sustained injury or experienced any physical effects of this work before the frank injury occurred. He has referred to this incident in his statement as having occurred on 4 September 2015, but the description of injury is that which has been accepted as having been on 6 October 2015.
In his first statement, the applicant said before 4 September 2015, he had never suffered any injuries at work. When he started work on the day of the injury, he was not suffering any injury to any part of his body.
On the day of the injury, the applicant, in his first statement, has given evidence about several manual tasks that he performed before it occurred. He said, “I had no problem doing those things. I was the only person in the printing room during this period”.
When the injury occurred, the applicant heard a “thud” from the middle left side of his back and felt pain around his chest area. He had had consistent pain in that area from that day onwards. There is no reference to injury or pain in any other part of his body.
On 4 March 2016, the applicant had “felt the same pain in the same place in the middle left hand side of my back”. He took a few days off, and on 16 March 2016, told his manager that his back pain had worsened. There is, again, no reference to injury or pain anywhere but in the middle of his back, on the left.
In this statement, the applicant said he was still suffering from pain in his back and chest, and depression and anxiety. He had not had any previous injuries to his back, shoulder or anywhere else before the injury at work.
The applicant submitted that it was “curious” that the investigator did not record anything about his shoulder, but noted a history relevant to the shoulder, and scans were taken in the months prior.
I do not see the reference to the applicant’s shoulder (whether it was the right or left was not identified) in this statement as assisting in my determination.
It appears that Mr Simpson had raised the possibility that the applicant had previously sustained an injury playing rugby league, and the applicant stated he had not played rugby league since he was a child. Had he sustained injury to his shoulder at work, I would expect him to have said so at this point.
The applicant’s second statement was made over six years after the date of the injury. Before his injury, he weighed 72kg, and was “in good shape, very physically and domestically active”. He had not had any previous injuries to his neck, back, shoulder or anywhere else. He had never had any symptoms, treatment or problems with his lumbar spine, shoulder, thoracic spine, or mental disorders.
This evidence, like that in the applicant’s first statement, does not suggest that the nature and conditions of his employment, as heavy as they may have been, before the frank injury, caused him any physical or mental problems at all.
The applicant’s evidence about the injury in September or October 2015 is the same as his previous evidence. He said that, after this injury, he took things easy at work, “as much as I could”, took anti-inflammatories, and saw an osteopath, with some relief, which allowed him to continue his work “in some comfort”.
With time, the applicant having still been required to lift boxes “etc”, his pain and restricted movement gradually worsened.
There is still no evidence in this statement that suggests the applicant injured either his cervical spine or left shoulder, either as a result of a frank injury or as a result of the nature and conditions of his employment, while he referred to symptoms in his neck, back and shoulder.
The applicant stated that he sought medical treatment before consulting Dr Hurst, but there is no evidence from these practitioners.
Dr Hurst recorded on 2 October 2015 that the applicant had had several years of scapular back pain at T4/5. It had worsened in the last three weeks (which would suggest the date of September 2015 as the date of the frank injury as possibly correct). While Dr Hurst recorded that the applicant did heavy work, he also recorded that he thought the pain came with a clean pull.
Dr Hurst recorded no history of symptoms in, or injury to, the applicant’s cervical spine or left shoulder. The only investigations he arranged were of the chest, thoracic spine, and ribs.
On 10 May 2016, Dr Hurst recorded that the applicant still had mid-thoracic back pain. He had tingling in his left hand, which Dr Hurst believed may have been due to cervical radiculopathy, and he arranged MRI of the cervical spine. Once again, there was no history of injury to either the cervical spine or the left shoulder.
I accept the respondent’s submission that the most likely explanation for Dr Hurst requesting MRI of the cervical spine was the applicant's complaint of tingling in the left hand. Dr Hurst also recorded in his referral to Dr Ghahreman that the applicant may have carpal tunnel syndrome.
When Dr Hurst reported to GIO on 29 June 2016, his diagnosis was limited to injury to the thoracic spine, although he referred to MRI of both the thoracic and cervical spines. Had he believed there was injury to the cervical spine (or the left shoulder), I would have expected him to say so.
As the respondent submitted, there was a change when the applicant began to consult
Dr Lim. The history of injury to the applicant’s neck and back on 6 October 2015 did not accord with his statement evidence or the history obtained by Dr Hurst. Nor did the history recorded by Mr Nielsen.

Dr Lim reported to GIO that the history recorded was that the applicant sustained a neck/back injury from repetitive lifting at work, with left arm pain. There is no reference to the left shoulder, and once again, this history did not accord with the applicant’s evidence or that of Mr Hurst.
A/Prof Papantoniou, the applicant’s treating specialist, recorded a history of the frank injury that was consistent with the applicant’s evidence, including feeling a “thud” and pain in his left thoracic region. He did not record any history of injury to the neck or left shoulder. He did not examine either when he first saw the applicant in July 2016.
A/Prof Papantoniou correctly recorded, on the applicant’s own evidence, that he had been working in the same job for three years without issue, and he concluded that he had “no choice but to attribute the two [thoracic] disc prolapses to his work injury”.
Although A/Prof Papantoniou later referred to the applicant having lower back pain (which may have been an error), at no time before July 2019 did he refer to neck or left shoulder pain. At that stage, the applicant presented with posterior shoulder pain, and MRI of his cervical and thoracic spines.
A/Prof Papantoniou opined that it appeared most of the applicant’s pain was coming from the T8/9 level.
While Dr Singh recorded that the applicant had injured his neck as well as his upper back, he attributed this to repetitive lifting.
The applicant relied on the opinion of Dr Dias, submitting that he had obtained a much more complete history than that of Dr Powell.
That may well be the case, but the detailed history of the nature and conditions of the applicant’s work obtained by Dr Dias does not avail him when his own evidence is that it caused him no symptoms or disability before the frank incident to which his treating specialist attributed the injury to his thoracic spine; and he made no complaint about either his neck or his left shoulder in his first statement or to Dr Hurst.
I accept that the nature and conditions of the applicant’s employment could have caused injury to his neck and left shoulder, as well as to his lumbar spine, which Dr Dias also assessed, albeit as resulting in no permanent impairment. However, his own contemporaneous evidence is that they did not.
I do not accept the applicant’s criticism of Dr Powell’s evidence. Dr Powell believed the applicant sustained a specific injury in 2015, and that caused injury to his thoracic spine, which was aggravated in March 2016. He did not discount that the applicant may have symptoms in his cervical and lumbar spines, and left shoulder. He did not believe they could be attributed to the mechanism of injury in 2016.
The fact that Dr Powell did not deal with the “nature and conditions” of the applicant’s employment does not weaken his opinion, because I do not accept that the applicant has sustained injury as a result of the nature and conditions of his employment.
For the reasons above, I am not satisfied, on the balance of probabilities, that the applicant has sustained injury to his cervical spine or left shoulder.
The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 221

15 May 2023