Yu v Architectural Facade Constructions Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Yu v Architectural Facade Constructions Pty Ltd [2025] NSWPIC 587
APPLICANT:	Ming Yu
RESPONDENT:	Architectural Facade Constructions Pty Ltd
MEMBER:	Josephine Bamber
DATE OF DECISION:	3 November 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; whether applicant had sustained injury to his cervical spine in circumstances where there was an eight-month delay in him experiencing cervical symptoms; Held – the applicant has discharged his onus of proof on the balance of probabilities that he did sustain an injury to his cervical spine from the workplace incident; the lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment of the cervical spine and the agreed injury to the lumbar spine.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The date of injury in the Application to Resolve a Dispute is amended to “on or about 12 July 2022”. 2. The applicant sustained injury to his cervical spine on or about 12 July 2022 in the course of his employment with the respondent. 3. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment of the lumbar spine and cervical spine with a date of injury on or about 12 July 2022. The documents to be referred to a Medical Assessor are those attached to the Application to Resolve a Dispute and Reply. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ming Yu was working as a construction worker for the respondent, Architectural Facade Constructions Pty Ltd, when on or about 12 July 2022 he was carrying a metal board with a colleague who slipped and the board collided with the right side of Mr Yu’s body and pushed him backwards. He alleges he sustained injury to his lumbar spine and cervical spine in this incident and he seeks lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent disputes Mr Yu injured his cervical spine. It accepts he injured his lumbar spine but asserts the claim for permanent impairment in relation to the lumbar spine is not sufficient to attract lump sum compensation.
There are differing references to the actual date of injury. Nothing turns on the particular date however, the parties agree for the Application to Resolve a Dispute being amended to refer to the date of injury as “on or about 12 July 2022”.

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 in arbitration hearing before me on 1 October 2025. Mr Bruce McManamey, counsel, instructed by Mr Young, solicitor, appeared for Mr Yu, who was present together with a Mandarin interpreter. The respondent was represented by Mr Paul Stockley, counsel, instructed by Mr Peter McCarthy, solicitor.

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, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence. Both counsel made oral submissions which have been sound recorded. A copy of the recording is available to the parties.

FINDINGS AND REASONS

The evidence relating to the alleged cervical spine injury is summarised below.

Mr Yu’s statement dated 20 June 2025

Mr Yu sets out the details of how the incident on or about 12 July 2022 occurred. At [9] and [10] of his statement he says he was assisting a co-worker to carry a large metal board, which weighed over 100kg. They were attempting to lift it to put it into a bin which was about a metre high. As they were heaving it up his colleague suddenly lost his grip and let go of the board. Mr Yu says it dropped and fell onto the right side of his body, pinning him against the bin. He says he immediately felt severe pain along the right side of his chest and in his lower back. He reported the incident and stopped working due to the pain.
He describes his medical treatment and his continuing lumbar pain which was radiating to his right thigh and leg, with numbness and tingling.
At [14] he states in the days and weeks immediately following the accident he did not notice any neck pain. He believed his only injuries were to his lower back and the right side of his chest and abdomen.
At [15] he said it was only several months later that he began to experience issues with his neck. He adds around early 2023 he started to develop pain and stiffness in his neck, which gradually became more noticeable. He says he reported the neck symptoms to his doctor in about March 2023 and then investigations were undertaken of his neck.
At [17] Mr Yu states that prior to the work accident he had never experienced neck problems.
I have not summarised all of the statement as there are parts that are more in the nature of submissions. The details of Mr Yu’s medical treatment are referred to when summarising the medical evidence.

Dr Han consultations

Dr Xuesong Jason Han, general practitioner from Auburn Healthcare Centre, saw Mr Yu on 15 July 2022 and recorded in his clinical notes that Mr Yu had a chest wall injury for two days and he was still painful over the right ribcage area. The doctor requested an X-ray noting on the referral “right ribcage pain post fall”.[1] Mr Yu saw Dr Han again on 17 and 18 July 2022, and the doctor requested a CT scan of his chest with the referral stating, “right side ribcage pain after hit a metal object”.[2] On 19 July 2022 Dr Han recorded that Mr Yu was complaining of “lower back pain from compensating” and he prescribed stronger pain killer medications.
[1] ARD p 119.
[2] ARD p 120.
On 29 July 2022 Mr Yu saw Dr Song at the same practice as Dr Han. Dr Song recorded that his condition had stabilised, “no further injury”. He still had pain and was able to move normally.
Dr Han reported to the insurer on 24 August 2022 providing a diagnosis of a right chest injury, noting even though she suspected a rib fracture none was detected on CT scanning.[3]
[3] ARD p143.

Dr Lam consultation 14 September 2022

Mr Yu consulted Dr Lam on 14 September 2022 and gave her a history of the work accident on 12 July 2022 when he was carrying a large thick metal sheet with a co-worker who suddenly put the sheet down. The doctor records that Mr Yu was caught unawares and that the edge and lower corner of the metal sheet jerked upwards and caught him on his right sided ribs. She notes he stumbled and has a near -fall over the sheet, he reported severe right sided chest pain and abdominal wall pain and worsening low back pain. Dr Lam records that on examination his right shoulder was tender anteriorly and the chest wall was tender over the rib. She also recorded her findings on examination of the lumbar spine.

Physiotherapy records

Mr Yu was treated at Complete Allied Health Care with physiotherapy treatment commencing on 12 November 2022.[4] The notes record ongoing abdominal wall, chest wall and lower back pain with muscle spasm and intermittent pain and numbness down the right lower limb. A report was sent on that day to Dr Lam consistent with these notes. There is no mention of neck pain. It appears Mr Yu did not attend for further physiotherapy at this centre.
[4] ARD p 175.

Dr Lam consultation 29 March 2023

The first record of Mr Yu complaining of his neck is in the clinical entry of Dr Lam on
[5] ARD p 51.
29 March 2023.[5] Dr Lam under the heading “Agenda” records that Mr Yu reports “ongoing chest wall, neck + low back pain with weakness”. At that time he was attending physiotherapy once a week but the doctor does not state what body parts were being treated by the physiotherapist. She requested an MRI scan of the cervical spine as well as of the lumbar spine.

MRI scan 6 April 2023

The MRI cervical scan revealed mild disc desiccation at C3/4 and a small disc bulge at C6/7. There was no neural compression and all exiting nerves pass freely.[6]
[6] ARD p 186.

Associate Professor Papantoniou

On 7 March 2023 Dr Lam issued a referral for Mr Yu to consult A/Prof Papantoniou in relation to the work accident referring to his low back pain.[7] A/Professor Papantoniou reported to Dr Lam on 11 May 2023.[8] The history he reports does not make it clear that
[7] ARD p 85.
[8] ARD p 109.
Mr Yu complained of neck pain months after the incident on 15 July 2022, although he does refer to the MRI scan of the cervical and lumbar spine dated 6 April 2023 which he states was approximately nine months after the original work injury. He states that the MRI scan revealed a small disc bulge at C6/7 and that Mr Yu has suffered from cervical and lumbar pathology as a result of his work injury.

Dr Shahzad

Dr Shahzad is the applicant’s medico-legal occupational physician who has provided a report dated 22 January 2024.[9] He has a consistent history of the work accident with that related in Mr Yu’s statement. On examination he found muscle guarding over the cervical spine and tenderness or muscle atrophy of the sternocleidomastoid, levator scapulae, trapezius or paravertebral muscles. Also there was tenderness over the spine or paraspinal region.
[9] ARD p 19.
Dr Shahzad found the range of movement in all planes to be two thirds of normal. Asymmetry of spinal motion was recorded. Dr Shahzad found cervical compression test was positive. The neurological examination of the upper limbs revealed motor examination of C5 to T1 had abnormal muscle strength but otherwise was normal.
Dr Shahzad when offering his opinion about the nature and extent of injuries does not explain how the neck was injured. He states that Mr Yu sustained injuries to his lumbar spine, right chest and right abdominal wall. But then in the next paragraph when describing the ongoing symptoms he states, “he also has some neck pain”.[10] Under the diagnosis heading, Dr Shahzad just sets out the radiology finding “disc desiccation at C3/4 and a disc bulge at C6/7 without radiculopathy”.
[10] ARD p 31.
In the permanent impairment report Dr Shahzad states,
“Mr Yu fits the criteria for DRE Cervical Category II, with clinical history and examination findings are compatible with a cervical spine injury, with muscle guarding, rigidity and asymmetrical range of motion being present on clinical examination. He has a 6% whole person impairment due to having difficulties with some domestic duties as well as garden and yard maintenance.”
Dr Shahzad provided a supplementary report dated 19 June 2025.[11] He was asked his opinion whether the injury to the cervical spine arose out of or in the course of Mr Yu’s employment. He said the sudden force of a large metal board weighing over 100kg falling onto the right side of his body was a sudden impact which transmitted force through his entire spinal column including his cervical region. He said it is medically plausible that the cervical spine was also affected beyond the other injuries such as the right chest wall, lumbar spine and abdominal wall. Dr Shahzad referred to the cervical symptoms being documented later with the MRI in 2023 confirming disc desiccation at C3/4 and a disc bulge at C6/7. He further explained there was an absence of prior neck complaints and these type of structural changes align with the type of biomechanical force involved in the injury. Dr Shahzad opined that delayed onset of symptoms does not exclude a work-related causation especially when the mechanism of injury supports such involvement.
[11] ARD p 40.
Dr Shahzad says he disagrees with Dr Wallace’s conclusion because he did not address or consider Mr Yu’s cervical condition, which has since been clinically and radiologically confirmed.

Dr Wallace

Dr Wallace provided a medico-legal report to the respondent dated 30 April 2024.[12] He has a slightly different history of the workplace incident, that the co-worker dropped his end of the aluminium plate with Mr Yu taking the full weight “and it twisted and he twisted to his left before dropping it to the ground. The plate struck his right lateral chest wall as it fell.”
[12] Reply p 2.
Dr Wallace refers to Mr Yu’s present complaints and states “he does not complain of any cervical symptoms.” Dr Wallace records that a Mandarin interpreter was present.
Dr Wallace states that the MRI scan showed minor disc degeneration at C3/4. He does not list a cervical injury in his diagnosis. Dr Wallace did not examine Mr Yu’s cervical spine.
Dr Wallace in answer to question 8 states there is no objective evidence that Mr Yu suffered injury at his cervical spine as a result of the work injury on 13 July 2022. He notes the first mention of pain in his neck was eight months post injury and he repeated that Mr Yu did not complain of any cervical symptoms.

Submissions

The applicant’s counsel submitted that the applicant had no prior problems with his neck before the workplace incident and he was able to carry out his duties. He referred to the mechanism of injury and submitted that it was of some importance, that Mr Yu was in the process of lifting a heavy weight. He argues that it can be concluded that in the process of the lift it would put a strain on the neck. In addition, the metal sheet hit the right side of
Mr Yu’s body and he was propelled backwards.
The applicant’s counsel submitted that it is not material that there was a delay in Mr Yu experiencing neck symptoms. He drew attention to the first examination of Mr Yu by Dr Lam which included an examination of his right shoulder. He says this is significant because it shows the symptoms were not just localised over the chest. Counsel submits that the MRI scan of the cervical spine did not disclose degenerative pathology throughout his cervical spine, but it discloses discrete pathology at C3/4. It was submitted that at that stage Mr Yu was about to turn 37, so he was not an old man.
The applicant’s counsel referred to A/Professor Papantoniou’s report, stating the history of the incident was consistent with the other histories but he accepted that the doctor does not record that there was delay in Mr Yu reporting neck pain. Counsel submits that A/Professor Papantoniou’s opinion is that the work incident has caused the pathology evidence on the MRI scan, which he had referred to immediately before giving this opinion.
It was further submitted that Dr Shahzad examined Mr Yu’s cervical spine and found signs of problems with the neck. He diagnoses specific pathology in the cervical spine as shown on the MRI scan. It is submitted that it is clear that the doctor is of the view that these symptoms are not the result of an aggravation, but that the injury caused the pathology. Counsel submits that this is supported by the fact that the doctor does not make a deduction under s 323 of the 1998 Act of the whole person impairment he assessed for the cervical spine. Counsel submitted that the last report of Dr Shahzad makes it clear that the mechanism of injury is directly related to cervical disc pathology.
Counsel argues that a delay in onset of symptoms does not mean that there was no injury because the injury causes the change in pathology and as it progresses it becomes symptomatic. He submits the test is whether there has been a sudden change in pathology. The applicant’s counsel submits there has been a sudden change of pathology in Mr Yu’s case with the desiccation of the C3/4 disc.
The applicant’s counsel submits that the respondent’s medico-legal opinion from
Dr Wallace’s should be rejected because his history, that Mr Yu did not complain of cervical symptoms, is totally at odds with Mr Yu’s statement and the other medical evidence. Counsel also submits that Dr Wallace did not examine Mr Yu’s cervical spine unlike Dr Shahzad and even though Dr Wallace did refer to the MRI scan of the cervical spine, he did not refer to its significance. Counsel submits that at no stage does Dr Wallace engage with the views of A/Professor Papantoniou and Dr Shahzad.
The respondent submitted that the mechanism of injury is far from clear because there are different accounts recorded. He submits this matters because Dr Shahzad has said the mechanism of incident is consistent with an injury to his cervical spine having occurred. The respondent’s counsel submits that when Dr Shahzad talks about the forces on the spine one might think he has taken into account the lumbar injury. However, counsel submits, while the respondent accepts there was a lumbar injury, in the first medical examination by Dr Han he refers to a chest wall injury with no mention of the back at that stage. Counsel refers to the clinical entry by Dr Han on 19 July 2022 which refers to low back pain from “compensating”. It was submitted that these matters of history differ to that in Mr Yu’s statement. The respondent’s counsel poses the question, what does this tell one about the mechanism of injury and the forces exerted on the spine when the history is of “compensating”. It is submitted that it diminishes the opinion of Dr Shahzad. The respondent’s counsel submitted that in his first report Dr Shahzad did not record the delayed onset of neck symptoms and he has mistaken the correct date of referral for the MRI scan. Counsel also submits that Dr Shahzad in his first report also refers to A/Prof Papantoniou’s report which seemed to relate the neck pain to onset at the time of the accident. Counsel is critical of Dr Shahzad’s opinion relying on A/Prof Papantoniou’s report.
The respondent then referred to the last report of Dr Shahzad where he discusses the mechanism of injury and submits he does not disclose the reasoning for his conclusion that the accident involved a sudden impact resulting in force being exerted down the spine. The respondent submits the mechanism of injury is in doubt and the applicant’s counsel argued that there was “a progression of the pathology” but this was without any support of medical opinion. It was submitted that Dr Shahzad does not support such a theory and the respondent submits his opinion is really superficial and should not be accepted.
The respondent also submitted that the applicant does not tell us in his statement or to anyone where his neck symptoms were and how they started. Also, it is submitted that it has not been explained how there was disc desiccation occurring. It was submitted that Dr Lam records that the co-worker was putting the metal sheet down and the sheet jerked upwards catching him on the right side of his ribs and there was a near- fall.
The respondent submits it does not need to rely upon the opinion of Dr Wallace because the applicant has not explained the mechanism of injury to the cervical spine and the delayed onset of neck symptoms. The upshot of the respondent’s submissions is that the applicant has not discharged his onus of proof and an award for the respondent should be found for the alleged injury to the cervical spine.
In reply the applicant’s counsel submitted that the respondent’s counsel’s submission was that Dr Shahzad, being aware that the lumbar injury had been accepted, had led to him finding there were forces occurring on the spine that also injured the neck. However, the applicant submits there is no basis to infer that this was part of Dr Shahzad’s reasoning. It was also submitted that the respondent had suggested an inference be drawn that Dr Shahzad, when quoting from A/Prof Papantoniou, had been influenced in concluding the neck had been injured. Again the applicant submits that this inference is not one that can be drawn from Dr Shahzad’s opinion. The applicant submits that Dr Shahzad deals with the chain of causation and explains that it is consistent with an injury having occurred to the neck at the time of the incident, but with symptoms coming on later.

In relation to the respondent’s submissions about the mechanism of injury, the applicant submitted that the most crucial part is that there was an extremely heavy metal sheet which was put down and struck his chest and whether or not it pinned him against the bin is not material. It is clear he was thrown sideways. He says the versions recorded by Dr Lam and Dr Han are essentially consistent and, as the respondent conceded they would have been more concerned with treatment than pinning down the fine details of the incident.
Finally, the applicant submitted that there is no contrary view to that of Dr Shahzad that notwithstanding the delay in onset of symptoms it is consistent with the accident causing the pathology found on the MRI scan and symptoms becoming apparent later. Counsel argues, absent a contradictor, Dr Shahzad does not need to expand upon this opinion.

Determination

The applicant has the onus of proof to establish the work accident on or about 12 July 2022 caused an injury to his cervical spine. The respondent’s case has been made more difficult because Dr Wallace did not even examine Mr Yu’s cervical spine, comment on the significance of the MRI scan findings or deal with Dr Shahzad’s opinion about causation. These deficiencies in Dr Wallace’s report have led me to place no weight on it. He bases his conclusion on the statement he attributes to the applicant that he did not complain about his cervical spine. I find I cannot rely upon this history as it is contrary to the histories recorded by Dr Shahad, A/Prof Papantoniou and Dr Lam of complaints of symptoms in the neck. The fact that an MRI scan of the cervical spine was undertaken indicates there must have been a cervical complaint to warrant Dr Lam to request the same. It is surprising that Dr Wallace does not comment on the significance of the pathology disclosed by the scan in a 37 year old man.
However, the fact that I place no weight on the respondent’s medico-legal opinion does not mean that the applicant has discharged his onus of proof.
The applicant states he had a delayed onset of neck symptoms and made no complaint of them until the consultation with Dr Lam on 29 March 2023, about seven and a half months post-accident. I find I cannot place weight on A/Prof Papantoniou’s finding about causation because it is not clear that he knew about the delay in onset of symptoms. Also his was a telehealth consultation so I am not assisted by physical examination findings of the applicant. He does refer to the MRI scan and accepts without any reasoning that the small disc bulge at C6/7 was caused by the work injury.
The MRI scan revealed mild disc desiccation at C3/4 and a small disc bulge at C6/7. There was no neural compression and all exiting nerves pass freely. The applicant was about 37 when this scan was performed and the findings may or may not be caused by trauma or early degenerative changes. I cannot determine the significance of these finding without medical evidence. As the respondent submits, the applicant has not given evidence as to where in the cervical spine he had symptoms and details of the onset. I also do not accept the applicant’s counsel about a progression of pathology as there is no medical evidence to support that. I do not accept the respondent’s submission that Dr Shahzad was influenced by A/Prof Papantoniou because it is evident that Dr Shahzad, unlike A/Prof Papantoniou, did conduct a detailed physical examination of Mr Yu.
Dr Shahzad is really the only doctor to provide a thorough examination of the cervical spine. He found muscle guarding over the cervical spine and tenderness or muscle atrophy of the sternocleidomastoid, levator scapulae, trapezius or paravertebral muscles. Also tenderness over the spine or paraspinal region. Dr Shahzad found the range of movement in all planes to be two thirds of normal. Asymmetry of spinal motion was recorded. Dr Shahzad found cervical compression test was positive. The neurological examination of the upper limbs revealed motor examination of C5 to T1 had abnormal muscle strength but otherwise was normal.
Dr Shahzad, when he was finally asked about the causation of the cervical symptoms, does provide an opinion consistent with injury having been sustained at work on or about
12 July 2022. I do have concerns about the length of delay in the applicant experiencing neck symptoms however, Dr Shahzad is cognisant of this delay and supports a causal link. The respondent was critical of his opinion because it was based upon his view that the mechanism of injury exerted forces on the spine. I find that Dr Shahzad does have a history of the incident that is fairly consistent with that taken by Dr Lam and related by the applicant in his statement. It seems it was the force of the heavy metal plate striking the applicant that he attributes to exerting forces sufficient to injure Mr Yu’s neck.
The applicant also drew attention to the fact that Dr Lam did find tenderness in the right shoulder on 14 September 2022 and submitted that this shows the blow did not just cause a discrete injury to the chest/rib area. I accept this submission but had this been the only finding I would not necessarily place weight upon it. However, coupled with Dr Shahzad’s objective findings on physical examination of the cervical spine and his opinion about causation I am satisfied that the applicant has discharged his onus of proof that on the balance of probabilities he did sustain an injury to his cervical spine in the workplace incident on or about 12 July 2022. The degree of impairment is a matter for a Medical Assessor.
Accordingly, I remit the lump sum claim to the President for referral to a Medical Assessor to assess permanent impairment of the lumbar spine and cervical spine with a date of injury on or about 12 July 2022. The documents to be referred to a Medical Assessor are those attached to the ARD and Reply.

[2025] NSWPIC 587

3 November 2025