Wood v Workforce Recruitment and Labour Services
[2025] NSWPIC 269
•16 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Wood v Workforce Recruitment and Labour Services [2025] NSWPIC 269 |
| APPLICANT: | Wood |
| RESPONDENT: | Workforce Recruitment and Labour Services |
| MEMBER: | Parnel McAdam |
| DATE OF DECISION: | 16 June 2025 |
CATCHWORDS: | Workplace Injury Management and Workers Compensation Act 1998; consequential condition; claim for lump sum compensation; applicant had accepted right shoulder injury and accepted left shoulder consequential condition; whether cervical spine was consequential; applicant need not show injury; Moon v Conmah Pty Limited applied; pathology identified for cervical spine condition; Grant v Dateline Imports Pty Ltd considered; Held – applicant suffered consequential condition in cervical spine; both shoulders and cervical spine referred for assessment before a Medical Assessor. |
| DETERMINATIONS MADE: | 1. The applicant suffered a consequential condition in his cervical spine. 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: Date of injury: 27 October 2016. Body systems/parts: right upper extremity (shoulder), left upper extremity (shoulder) – consequential condition, and cervical spine – consequential condition. Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents, and (b) the Application to Lodge Additional Documents dated 6 May 2025, attaching the Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
Mr Wood was employed by Workforce Recruitment and Labour Services (the respondent), who are a labour hire company. His duties were in fact at the behest of Roads Maritime Services, involved with road maintenance. He was required to operate heavy vehicles and complete labouring tasks associated with roadworks and maintenance in an area arising from the Broken Hill depot.
On 27 October 2016, Mr Wood, with a team, was required to attend to pothole patching. He had to lift bags of asphalt weighing approximately 20kg. At the job site, he was holding one of these bags, when he was accidentally struck by a colleague holding a rake, causing him to jerk his right arm backwards. This caused an injury to the right shoulder and liability for this injury has not been disputed.
Over a period of time, Mr Wood tried various medical treatments for his right shoulder, including physiotherapy and two bouts of surgery. He began to experience pain in his left shoulder as a result of overcompensation. He was diagnosed with left shoulder adhesive capsulitis and underwent surgery. Liability for this consequential condition is also accepted.
In April 2024 Mr Wood brought a claim for lump sum compensation for the right shoulder, left shoulder and cervical spine, for 29% whole person impairment. This claim went through the usual assessment and dispute process. The respondent disputed liability for the cervical spine, which was claimed as a consequential condition.
Mr Wood commenced proceedings in the Personal Injury Commission (Commission) on 3 April 2024, claiming lump sum compensation as a result of injury to the right shoulder, as well as consequential conditions in the left shoulder and cervical spine.
ISSUES FOR DETERMINATION
The parties agree that the following issue remain in dispute:
(a) whether the applicant suffers from a consequential condition in the cervical spine.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded to hearing on 4 June 2025. The applicant was represented by Mr Hickey of counsel, instructed by Masselos & Co Lawyers. The respondent was represented by Mr Stiles of counsel, instructed by Hicksons Lawyers.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) an Application to Lodge Additional Documents, attaching the Reply form and all attachments, lodged by the respondent on 6 May 2025.
The applicant’s statement
The applicant provides a statement dated 31 March 2025. It sets out the history of the initial incident, suffered to the right shoulder, and the treatment for that injury, including two bouts of surgery. Mr Wood describes the onset of symptoms in his left shoulder from around 2019, also resulting in surgery. Mr Wood also describes the onset of pain in his neck (in two different ways, which will be discussed below).
Reports of Dr Endrey-Walder
Dr Endrey-Walder provides three reports on behalf of the applicant. The first is dated 6 February 2024, referring to an earlier report of 10 October 2022 (that is not before me, and likely concerns the earlier history of right and left shoulder issues which are not presently in dispute).
Dr Endrey-Walder records the following symptoms in the neck, as told to him by Mr Wood:
“Since the first operation I have had this feeling of stiffness and hardness on the right side and the back of my neck, you can feel it going towards the shoulder”.
On examination, there was a significant restriction in extension of the neck. He provides the following opinion in respect of the neck:
“It remains for me to make mention of your client’s reported right sided and posterior neck pain that he described as extending along the trapezius to the shoulder.
I am not privy to any radiology he might have had of the cervical spine, and given that he is 66 years of age, I expect that he probably has some age-appropriate degree of spondolytic changes.
That said, I believe it would be reasonable to assess impairment of the neck on account of referred pain from his much damaged right shoulder.”
In a second report of the same date, Dr Endrey-Walder provides an assessment of impairment of the right and left shoulders and the neck.
Dr Endrey-Walder provides a further report dated 21 October 2024, commenting on the report of Dr Gothelf. He comments on the existence of an MRI dated 13 June 2023, as showing an essentially normal study. He comments:
“Given that Dr Gothelf reported no radiological evidence of any pathology on your client’s MRI scan, the range of movement identified by him is clearly not a normal range of motion”
He comments on Dr Gothelf’s opinion on causation (which I will set out below) in the following terms:
“It is not argued that your client had an injury to the cervical spine in the subject accident. Symptoms at the cervical spine are related to a long history of bilateral shoulder pathology, clearly accepted as compensable, resulting in chronic strain to the cervico-brachial musculature, this on account of referred pain from the shoulders, especially the right shoulder, to the cervical musculature.
It is, and has been for many years, readily accepted that referred (as apposed to radicular) pain from neck can impact on the functioning of the shoulder girdles, thus it is quite reasonable to acknowledge that the reverse also applies.”
Reports of Dr Gothelf
Dr Gothelf provides two reports in this case. The first is dated 21 December 2022 and is attached to the Application. That report provides opinions in respect of the left and right shoulders only.
In a report dated 25 July 2024, Dr Gothelf considers the claim which included the cervical spine. He takes a limited history of onset of symptoms in the cervical spine in the following terms: “Mr Wood was asked about his cervical spine. He stated that he noticed some pain, saw his GP and had an MRI. He had no treatments otherwise.”
He describes the MRI of 13 June 2023 (which Dr Endrey-Walder also discussed, in reference to Dr Gothelf’s report) in the following terms:
“Preservation of vertebral body height at all levels. Normal marrow pattern. Normal appearance to the cervicomedullary junction. No abnormal high signal in the cord. Facet joints unremarkable at all levels. No significant central canal or neural exit foraminal narrowing in the cervical spine. No precervical soft tissue swelling.”
Dr Gothelf found restriction in all ranges of motion of ¾, with “no cervical asymmetrical loss of motion”. He provides the following diagnosis which he says is not related to employment:
“Cervical spine pain. An MRI of the cervical spine 13 June 2023 revealed normal facet joints, no central canal or neural canal with no narrowing in the cervical spine. Mr Wood reported fluctuating pain. The physical examination revealed no guarding, no asymmetrical loss of motion, and no radicular signs or symptoms.”
He goes on to provide the following commentary on the assessment of Dr Endrey-Walder:
“I have reviewed the report of Dr Endrey-Walder’s dated 6 February 2024 and make the following comments:
·Dr Endrey-Walder indicated: “I believe it would be reasonable to assess impairment of the neck on account of referred pain from his much damaged right shoulder.” I do not agree with this reasoning and line of thinking. In my opinion, an injury to a body part is considered to be caused by an injury when there is separate identifiable pathology that can be established to be caused by the initial injury. In this case, there was no identifiable injury of the cervical spine which was caused by the workplace injury.
·Section 1.44 p. 8 of the Guides instructs to follow the instructions in section 1.5 p. 10 AMA5. AMAS states that Impairment ratings already have accounted for commonly associate pain, including that which may be experienced in areas distant to the specific site of pathology. Thus, the impairment rating of the shoulder would take into account any referred pain. In this case, any referred pain to the neck from the shoulder would be therefore accounted for in the impairment rating for the shoulder. Including an impairment rating for the cervical spine due to referred pain would be considered “double dipping”, in my opinion.”
Clinical and radiological evidence
Outside of the competing independent medical expert opinions, there was not a great deal of evidence of a clinical and radiological type dealing with the neck.
There is the MRI of 13 June 2023, which both doctors appear to agree was largely unremarkable. There is a later MRI, of 12 February 2025, which shows some mild to moderate foraminal stenosis at the C3/4 level, and mild multilevel facet arthropathy.
There are a series of certificates of capacity attached. The first record of “neck pain” appears in a certificate which is not dated but certifies no capacity from 29 January 2025 to 29 March 2025, so I assume it should have been dated from the earlier date.
The clinical notes otherwise make no reference to the neck or cervical spine. There are a series of reports dealing with the treatment of the shoulders, including from Dr Ling, an orthopaedic surgeon who provided treatment in respect of the shoulders. There is an operation record from 7 July 2023, referred to by the applicant in submissions, that describes to the applicant needing to put his arm in a sling.
SUBMISSIONS
The parties provided oral submissions at the hearing of this dispute. The below is a summary of those submissions, which were recorded.
Applicant’s submissions
The applicant identified that the only issue was a consequential condition in the cervical spine. The applicant went through Mr Wood’s statement, setting out the initial injury and consequential problems in the shoulder. Reference was made to neck pain, which started at the base of the neck following left shoulder surgery, and an earlier onset of neck pain following right shoulder surgery. The applicant acknowledged that there was no history of neck pain contained in the clinical material, other than the certificates of capacity.
The applicant referred to the two MRIs. The applicant also discussed the report of Dr Endrey-Walder, who provides an explanation of the mechanism for the consequential condition.
At the end of submissions I asked a specific question about the apparent inconsistency in the applicant’s statement of the onset of symptoms in the neck. The applicant submitted that there were two different identifiers. The first was pain and restriction of movement, on the right side down to the shoulder, and then later at the base of the neck. This is not inconsistent, and is in fact consistent with the radiology undertaken of the neck.
Respondent’s submissions
The respondent commenced by noting the inconsistency in the applicant’s statement evidence, which has not been explained. The applicant first says pain came on after the left shoulder surgery, and then says it was after the right shoulder surgery. There is nothing in the clinical notes and the certificates of capacity prior to 2025 make no reference to the neck.
In respect of the applicant’s assertion that he had some neck pain after the right shoulder surgery, there is no evidence before me to support that assertion. There are a long series of reports that all relate to shoulder complaints, and none make reference to neck pain or symptoms. The report of Dr Gothelf of 21 December 2022 likewise makes no mention of neck pain or symptoms.
The respondent identifies a further inconsistency in the evidence. The applicant says his symptoms came on after the surgery that occurred on 7 July 2023, but there is the neck MRI dated 13 June 2023 that is a month before the shoulder surgery. There is nothing in the clinical notes and no referral contained in the material. This was seven years after the subject accident.
The respondent criticised the opinion of Dr Endrey-Walder who takes a history of neck symptoms but hasn’t seen the radiology. He suggests there would be some change, but that isn’t show on the scans. In the more recent MRI, which was taken after all of the medicolegal opinions were provided, there is some age appropriate change, nine years after the injury. The symptoms may well be accounted for by age related changes. The difficulty is that Dr Endrey-Walder hasn’t seen any of the scans, whilst Dr Gothelf has seen the earlier scan.
The respondent submits that in this case there is no explanation in terms of pathology save for Dr Endrey-Walder’s report. There are no clinical records that assist. There is an MRI scan undertaken before the shoulder surgery, but the applicant says the symptoms came on after the shoulder surgery. There has been an advance in pathology between the two MRIs and that has not been explained.
Where the applicant bears the onus, there is no reasonable basis to conclude that there has been a consequential condition in the cervical spine from the accepted left and right shoulder injuries/conditions and I would enter an award for the respondent.
FINDINGS AND REASONS
This is a single issue case, narrow in its scope. There are competing medicolegal opinions on the issue and a somewhat clouded history, as set out in the applicant’s statement. There is an acknowledged degree of pain in the applicant’s cervical spine, and accepted left and right shoulder injuries. There is an absence of clinical information of the claimed consequential condition.
Mr Wood was initially injured on 27 October 2016, in his right shoulder. This injury was investigated via ultrasound not long after the initial incident, and physiotherapy commenced. This did not greatly assist, and as is the common course in this type of injury, Mr Wood proceeded to further investigation and cortisone injections. On 13 November 2018, Mr Wood underwent his first surgical procedure, to the right shoulder. This did not greatly assist. Further surgery took place on the right shoulder on 2 April 2020, but still resulted in significant restriction.
Mr Wood describes experiencing “pain and restriction of movement in my neck sometime after my second right shoulder surgery”. No specifics are provided of the emanation of the pain or the nature of the restriction.
Mr Wood also suffered with problems in his left shoulder. This has been accepted as consequential upon the initial injury. Whilst not in dispute, the onset of symptoms has some relevance to the cervical spine consequential condition. These problems came on “as a result of overcompensation and/or favouring my injured right shoulder”. The onset of this is not entirely clear. Mr Wood describes it becoming worse in May 2019, and the clinical notes start recording problems in the left shoulder, with a referral for an ultrasound, on 10 September 2020.
The left shoulder condition eventually led to surgery on 7 July 2023. Mr Wood describes experiencing pain and restriction in the neck following that surgery, with worsening pain since then.
This aspect of the history given in Mr Wood’s statement was the subject of submissions by both parties and inquiries made by me during the hearing. The two histories, at first glance, appear inconsistent. The applicant specifically states:
“I started to experience pain and restriction of movement in the base of my neck following my left shoulder surgery. The pain gradually worsened since then”.
The left shoulder surgery took place on 7 July 2023.
Mr Wood also goes on to state:
“I started suffering from pain and restriction of movement in my neck sometime after my second right shoulder surgery. My symptoms in my neck gradually worsened to date following my right shoulder surgery especially on the right side of my neck travelling down towards my right shoulder. Some days I wake up with a lump on the back of my neck and if I remain in one position for an extended period of time the pain in my neck increases and I have severely limited range of movement in my cervical spine as well as my shoulders.”
The second right shoulder surgery, referred to in this part of the applicant’s statement, occurred on 2 April 2020. There is an apparent inconsistency in the applicant’s history of the onset of neck symptoms. The respondent submitted as much. The applicant submits that there are two different identifiers.
A close analysis of the contents of the two statements supports the applicant’s submission. The first reference to neck pain (appearing later in the statement) is to pain and restriction of movement in the neck, “especially on the right side of my neck travelling down towards my right shoulder”. The second reference to neck pain (appearing first in the statement) is after the left shoulder surgery, and refers again to pain and restriction in movement but in “the base of my neck”. This is a subtle, but different symptom.
Initially symptoms appeared in the right side of the neck travelling down towards the right shoulder. This is understandable, as at that time the right shoulder was the most significant issue affecting Mr Wood. By the time of the left shoulder surgery, some three years after Mr Wood states he first experienced pain in his neck, the pain had moved more towards the base of the neck.
The lack of complaint of neck pain in the clinical records makes it more difficult to determine precisely the nature of the symptoms in Mr Wood’s neck and when they first appeared. Mr Wood’s credit as a witness was not impugned and I have no reason to doubt the history he records in his statement. The inconsistency has been explained as a difference in symptomatic presentation.
Mr Wood explains the lack of treatment he has had in his neck (and consequently why the neck does not appear in the clinical records):
“To date I have not had much treatment for my neck. It is a bit hard to have your own doctor out here as we only have fly-in doctors in the medical centre. Recently, I have been seeing my GP, Dr Isabella Hawke and Dr Imran at the South Medical Centre in Broken Hill.”
This is consistent with what is recorded in the report of Dr Endrey-Walder: “He told me today that he has a ‘fly-in, fly-out GP service at Broken Hill’, consequently seeing a number of different doctors over the years”.
The different onset of symptomatology also explains the apparent inconsistency in the date of the MRI and the date of the left shoulder surgery. The respondent identified that Mr Wood had an MRI about one month before the left shoulder surgery took place. That is correct, but Mr Wood had complained about symptoms in his neck prior to that time, arising from the right shoulder surgery and extending down the right side of his neck. The MRI at that time showed little; that has been acknowledged in submissions and by the medicolegal experts in this case. It is understandable then that the neck got worse, consistent with the applicant’s statement, following the surgery of 7 July 2023. It also may go some way to explaining why the symptoms after 7 July 2023 changed to be more towards the base of the neck than right side and shoulder focussed, although I acknowledge this is not postulated in the medical evidence.
Aside from the issues concerning the applicant’s statement, there are the two competing medicolegal opinions in this case. Dr Endrey-Walder supports a causal connection between the initial right shoulder injury, the consequential left shoulder condition, and the neck condition now claimed. He doesn’t explain it in great detail in his first report, but when commenting on Dr Gothelf’s opinion, provides a more thorough explanation.
Dr Endrey-Walder provides an explanation in support of his conclusion on causation and the pathological basis for same:
“Symptoms at the cervical spine are related to a long history of bilateral shoulder pathology, clearly accepted as compensable, resulting in chronic strain to the cervico-brachial musculature, this on account of referred pain from the shoulders, especially the right shoulder, to the cervical musculature”
I have no reason to reject the conclusion of Dr Endrey-Walder, which is soundly reasoned based on the history he took and the specific symptoms Mr Wood presented with on examination. He has identified pathology, which in some cases may be a requirement for the determination of a consequential condition (Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3). The doctor has relied on more than just symptoms in reaching his conclusion, which, in the circumstances of the lack of clinical records supporting Mr Wood’s case, is entirely appropriate, and in my view necessary.
The opinion of Dr Endrey-Walder is contrasted with that of Dr Gothelf who did not accept a causal connection and did not assess the cervical spine on that basis. It is noted that Dr Gothelf specifically reviewed the MRI of 13 June 2023, which was not before Dr Endrey-Walder. In circumstances where this was an essentially normal study, I do not place much weight on that factor when considering the two competing opinions. Dr Gothelf provided a diagnosis of “cervical spine pain” not related to employment. He does not identify any pathology (contrasted with Dr Endrey-Walder). He provides a specific opinion rejecting Dr Endrey-Walder’s first report, providing the following rationale:
“In my opinion, an injury to a body part is considered to be caused by an injury when there is separate identifiable pathology that can be established to be caused by the initial injury. In this case, there was no identifiable injury of the cervical spine which was caused by the workplace injury.”
The problem with this conclusion is that Dr Gothelf has approached the question on the basis that Mr Wood was claiming an injury to the cervical spine, as opposed to a consequential condition. This is the wrong question, as made clear in Moon v Conmah Pty Limited [2009] NSWWCCPD 134:
“It is therefore not necessary for Mr Moon to establish that he suffered an “injury” to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury.”
Even if it could be accepted that Dr Gothelf was expressing his opinion in an imprecise way, when he actually meant to opine that there was no consequential condition in the cervical spine, I am satisfied that Dr Endrey-Walder has identified pathology in the cervical spine. The symptoms had been present for a long time (back to 2020, accelerating or changing in 2023) and have resulted in a chronic strain to the cervico-brachial musculature.
The further aspects of Dr Gothelf’s opinion also reduce the weight that I can give to the conclusion expressed above. He refers to cl 1.44 of “the Guides” which references page 10 of AMA 5. I have read both those clauses, presuming that the reference to the Guidelines is to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition (the Guidelines). It is not clear to me what Dr Gothelf is referring to in that paragraph and the sections do not match his conclusion. Regardless, the question before is one of consequential condition and not assessment of impairment. Any aspects of the Guidelines that require consideration are matters for a Medical Assessor on an assessment of permanent impairment.
Having considered both opinions, I prefer that of Dr Endrey-Walder.
Accordingly, I am satisfied that Mr Wood has suffered a consequential condition in his cervical spine. That will be referred for medical assessment before a Medical Assessor, along with the left and right shoulders.
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