CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	 
Rosende v Randstad Pty Limited [2022] NSWPIC 446	
		
APPLICANT:	Daniel Rosende	
		
RESPONDENT:	Randstad Pty Limited	
		
Member:	Michael Wright	
		
DATE OF DECISION:	8 August 2022	
		
CATCHWORDS:	WORKERS COMPENSATION - Lump sum claim for permanent impairment of the right upper extremity and cervical spine; right upper extremity not disputed; cervical spine disputed; consideration of factual and medical evidence; consideration of Greater Taree City Council v Moore and Kooragang Cement Pty Ltd v Bates; Held — applicant suffered injury to his cervical spine arising out of or in the course of his employment on 5 November 2018; matter referred to Medical Assessor. 
	
determinations made:	The Commission determines:
1.	The applicant suffered injury to his cervical spine arising out of or in the course of his employment on 5 November 2018.
2.	Matter remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment in respect of the right upper extremity and cervical spine, as a result of injury on 5 November 2018. Brief to Medical Assessor to include the Application to Resolve a Dispute and attached documents, Reply and attached documents, and Applications to Admit Late Documents dated 1 July 2022 (2).

STATEMENT OF REASONS
BACKGROUND
1.	In an Application to Resolve a Dispute, Mr Daniel Rosende (the applicant) claimed lump sum compensation in respect of injury on 5 November 2018 in the course of his employment with Randstad Pty Limited (the respondent). Injury claimed was in respect of the right upper extremity and the cervical spine.
2.	In a s 78 notice dated 11 February 2022, the workers compensation insurer (Allianz) disputed cervical spine injury or consequential condition. Injury to the right upper extremity was not in dispute.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
3.	At a conciliation/arbitration hearing on 7 July 2022, the applicant was represented by Mr Goodridge of counsel, instructed by Mr McKean, solicitor and the respondent by Ms Warren of counsel, instructed by Mr Tomkins, solicitor.
4.	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
5.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	Application to Resolve a Dispute and attached documents;
(b)	Reply and attached documents;
(c)	Application to Admit Late Documents dated 1 July 2022, enclosing report of Dr Patrick dated 18 May 2022, and
(d)	Application to Admit Late Documents dated 1 July 2022, enclosing report of Dr Bosanquet dated 15 June 2022.
Oral evidence
6.	There was no oral evidence.
FINDINGS AND REASONS 
Applicant’s statements
7.	The applicant provided statements dated 24 September 2019 and 24 March 2022.
8.	In his statement dated 24 September 2019, the applicant described right shoulder pain arising on 5 November 2018. He also stated that at present he had constant aching in his right shoulder girdle region, stiff muscles surrounding that region, and occasional shooting pain down his right arm and neck
9.	In his statement dated 24 September 2019, the applicant relevantly stated that prior to commencing work on 5 November 2018 he did not have any injuries or pain. He stated that following specified work activities of shovelling carrots he felt sudden severe pain in his right shoulder. He tried another task of emptying the chopped up carrots into wash bags, which also resulted in right shoulder pain and with other activities he was only able to use his left hand due to the pain in his right shoulder. He sought treatment with Dr Al Mamun, who referred him for an X-ray and ultrasound of the right shoulder and issued a certificate for a right shoulder injury. The applicant continued to see Dr Al Mamun who arranged for physiotherapy and other treatment of the right shoulder.
10.	In the same statement, the applicant said that at present he had constant aching in his right shoulder girdle region, stiff muscles in that region, occasional shooting pain down his right arm and his neck. He stated that he had limited movement in his right arm.
11.	In his statement dated 24 March 2022, the applicant relevantly stated that on 5 November 2018 he sustained injury to his right shoulder and neck as a result of physically shoveling carrots into tubs and then carrying and emptying the tubs into a machine. He stated that as he was doing this he developed severe and debilitating pain in his right shoulder and neck. He said he understands that injury to his neck had not been notified and he explained that at the time the pain felt like it was in his right shoulder region radiating up into his neck and he probably complained only of pain in the right shoulder region. He said that he simply felt that the pain came from his right shoulder, and he also felt pins and needles in his right arm. The applicant said that he complained to the doctor immediately about the pins and needles in his right arm however it was not until approximately three or four months later that the doctors believed that some of the problems were not only related to the shoulder but were also related to his neck, as he said he was continuing to experience pins and needles in his right arm. He referred to an attendance on Dr Dave on 11 March 2019 in which numbness down both arms was recorded, the right worse than the left. He also referred to an attendance on Dr Borire on 19 March 2019 in which right shoulder girdle, radiating pain into the neck and numbness from the shoulder to the right thumb and index finger was recorded.
12.	The applicant said that he had pain in that neck region and shoulder region which began at the time of the injury and that there was not a delay in the onset of that pain. He stated that it was simply that his doctors believed it was from the shoulder as opposed to anything else and he simply accepted that view.
Dr Dave
13.	Dr Dave, orthopaedic surgeon, provided a report dated 11 March 2019. He recorded that the applicant “came to see me today. He tried a return to work program and had an aggravation with numbness down both arms, right worse than left.” He recommended a neurological assessment for the numbness.
Dr Borire
14.	Dr Borire, neurologist and clinical neurophysiologist, provided a report dated 19 March 2019. He noted on initial review the history of injury on 5 November 2018, and recorded that the applicant “felt a sudden sharp pain around the right shoulder girdle and periscapular area which radiated medially across the collar bone and cranially into the neck”, with intermittent waxing and waning pain and a recent flare-up. He also recorded that the applicant “also noticed numbness and painful paraesthesiae, which shoot down from his right shoulder to his right thumb and index finger.” He noted “non-contributory” neurological examination, orthopaedic review as well shoulder ultrasound and MRI scans, and treatment for bursitis without much improvement. He was of the opinion that the applicant’s “shoulder girdle and neck pain is most likely musculoskeletal” but “his numbness and paraesthesia are potentially radlcular”. He did not clinically find a neurogenic cause for the symptoms.
15.	In an undated report addressed to Dr Al Mamun, Dr Borire reviewed the applicant and a cervical spine MRI scan. This was probably a scan which was reported by Dr Maesea and dated 2 April 2019, which noted clinically “persistent pain in the right upper limb” and commented that there was “moderate narrowing of the right exit foramen at C2/3, by a disc osteophyte complex, with no overt nerve root impingement”. Dr Borire felt that the cervical spine MRI scan was “unremarkable”. He remained of the view that the applicant’s “shoulder girdle and neck pain are most likely musculoskeletal”.
Dr Kuah
16.	Dr Kuah, sport and exercise physician, provided a number of treating reports to Dr Al Mamun, initially on 15 November 2019, following referral in respect of the applicant’s right shoulder symptoms. On examination he noted “tenderness maximal over the sternoclavicular joint” but “no specific tenderness over the shoulder itself”. Dr Kuah did not refer to neck symptoms until his handwritten referral note to Lifestyle & Sport physio dated 2 December 2019, in which he noted the applicant’s presentation for a “chronic [right] s-c injury”. In the same note, Dr Kuah stated that the applicant “has developed 2ndary sx for his neck shoulder/mantle region”. I accept the respondent’s submission that this latter quote referred to secondary symptoms.
Dr Al Mamun
17.	Dr Al Mamun, general practitioner, provided medical certificates and a report dated 16 March 2020. The latter document referred to his assessment of the applicant as having moderate to severe anxiety and moderate depression. He also stated that the applicant’s “main symptoms of persisting shoulder pain (work related) which is affecting him now mentally causing anxiety and depression... all can affect his prognosis, treatment options and also patient's response to them.” 
18.	A referral letter to Dr Dave dated 22 November 2018 referred to “right shoulder pain” and a consultation on 14 November 2018 which in turn noted a “WSC case conference” and discussion of an MRI scan report. Medical certificates issued by Dr Al Mamun referred to the right shoulder and not the neck, until a certificate dated 27 March 2019, in which it was noted that the applicant had seen a neurologist and was awaiting an MRI of the neck and brain. The first medical certificate referring to neck pain was dated 27 May 2020, in which it was noted “his pain shoulder and neck even worse”.
Dr Kadavil
19.	Dr Kadavil, of the Western Sydney Pain Centre, provided a report to the workers compensation insurer with reference to the referral to that clinic by Allianz. He noted a history of right shoulder pain for more than a year and recorded that the applicant’s “pain is in his right shoulder and right sterno-clavicular area”. He diagnosed “chronic right shoulder pain with predominantly nociceptive features and some neuropathic features possible due to nerve sensitization”.
Dr Manohar
20.	Dr Manohar, consultant physician and interventional pain physician, provided a report to Dr Al Mamun dated 17 July 2019. He recorded that the applicant said he injured his right shoulder and developed a stabbing and aching pain. Dr Manohar noted the history of shovelling carrots from a 500kg tub into boxes holding 20kg and then lifting the boxes up over his head to tip into a shredder. Dr Manohar recorded that “he then developed neck and shoulder girdle pain”.
Mr Watts
21.	Mr Watts, physiotherapist of Lifestyle & Sports Physiotherapy, provided reports, including a report dated 25 May 2020 to Dr Al Mamun. He noted the applicant had been participating in “an exercise rehabilitation program since January 2020”. Mr Watts stated that the applicant
“continues to report pain about his neck and proximal sternoclavicular joint. As indicated by Allianz and Mr Rosende's certificate, the compensable injury for Mr Rosende's treatment is only his right shoulder injury and not his neck pain. Therefore, I have done my best to address these symptoms as a function of his shoulder rehabilitation as a whole.”
Dr Patrick
22.	Dr Patrick, general, vascular and trauma surgeon, provided a medico-legal report to the applicant’s solicitors dated 28 June 2021. He recorded a history of injury on 5 November 2018, that
“at the time, Daniel Rosende was supposed to be chopping vegetables at a conveyor belt, but he ended up being taken off the line, and he had to physically shovel vegetables and then filling a tub and then carrying it up to the top level. A machine had broken down and things had to be carried out manually. He had to step up and he was very repetitively shovelling carrots up onto a platform up higher. He was repeatedly shovelling and lifting, shovelling and lifting. He was doing this without a break for about two hours.”
23.	Dr Patrick recorded that the applicant realised that he had injured himself and “he was developing a significant headache and neck pain and he was aware of quite severe pain at his dominant right shoulder”. Dr Patrick noted that subsequently the applicant consulted Dr Borire, who noted the MRI scan referred to above. Dr Patrick noted, with reference to both Dr Borire and the same MRI scan, that cervical spine MRI was unremarkable “apart from just moderate narrowing of right exit foramen at C2/3 with disc osteophyte complex with no overt nerve root impingement”. Dr Patrick also noted the history recorded by Dr Manohar, including neck and shoulder pain. Dr Patrick noted persisting troublesome symptoms of ongoing pain particularly at the right shoulder and right sterno-clavicular region and neck, as well as problematic headache. He diagnosed problematic headaches which can be cervico-genic or right sided fronto-temporal and parietal, demonstrable muscular guarding at the cervical spine and a degree of dysmetria at the cervical spine, but not definite radiculopathy. He was of the opinion that employment on 5 November 2018 was a substantial contributing factor to the injuries.
24.	In his supplementary report dated 18 May 2022, Dr Patrick was of the opinion that the work duties he described were “typical of a cervical spinal problem arising particularly at the C2/3 and C3/4 levels” and that “his neck injury at those higher levels is almost certainly as a direct consequence of the outlandish shovelling he was undertaking up on the higher levels on 5 November 2018. This is in a 21 year old male”. Dr Patrick was of the opinion that the headaches he described were “absolutely typical of cervico-genic headache which usually arises at C2/3 and C3/4”.
Dr Bosanquet
25.	Dr Bosanquet, orthopaedic surgeon, provided a medico-legal report to the workers compensation insurer dated 16 June 2020. He noted a broadly consistent history of the relevant employment duties on 5 November 2018, which the applicant had been doing for some time “when he felt pain in the right shoulder radiating into his neck and proximal clavicle”. Dr Bosanquet noted return to work in June 2019, “but, after two weeks of repetitive use, he had increasing pain in his right arm and neck.” He noted treatment by Dr Dave and later Dr Kuah. Dr Bosanquet recorded current symptoms of “pain in the right medial clavicle and the sternoclavicular joint. The pain is not always present but he has no pain-free days. There is also pain in his right shoulder when he moves it and he is unable to lie on the shoulder”. Dr Bosanquet did not record whether there were any current neck symptoms. On examination, he noted full cervical movement.
26.	In his supplementary report dated 13 December 2021, Dr Bosanquet recorded that when he examined the applicant he found a full range of movement of the cervical spine and no evidence of injury to that region.
Dr Powell
27.	Dr Powell, orthopaedic surgeon, provided a medico-legal report to the workers compensation insurer dated 26 June 2019. This report is considered only with respect to the history recorded. Dr Powell recorded a broadly consistent history of the relevant employment duties on 5 November 2018. He recorded that the applicant was “aware of the gradual onset of anterior shoulder pain extending medially to the chest and neck over the course of the day”. He recorded current symptoms in respect of the right shoulder. Dr Powell noted “he does not complain of neck pain”. On examination, Dr Powell noted “examination of the cervical spine demonstrated a slight restriction in right rotation though no other significant abnormalities”.
Other
28.	An incident report dated 5 November 2018 was provided by the respondent, apparently completed by Tahfim Murshed. It described the incident on 5 November 2018 as “Candidate was shovelling carrots out of a bin and was tipping a box of vegetables into a CC cutter and advised that he felt strong pain on his left shoulder” and described the injury as “left shoulder injury”. I place no weight on this document. It was not signed, nor was it completed by the applicant. It was inaccurate and I do not accept, without more, that this was a typographical error, as it is also possible that it was inaccurate reporting, that is, not a transposition of “left” for “right”.
29.	A functional capacity report of Mr Blaikie, of Prudence Rehab, dated 7 February 2020 recorded current symptoms as:
“•  	Constant posterior neck pain and pain across the shoulder girdle and upper back
•	Constant right side neck and upper cervical pain
•	Occasional cervicogenlc headaches when neck pain was at its worst
•	Constant right sided sternoclavicular pain, increasing to intense throbbing pain occasionally”
Reasons
30.	As the only claim by the applicant that is before me is for permanent impairment, the only issue to be determined is the dispute as to whether the applicant sustained injury to his cervical spine on 5 November 2018.
31.	The applicant submitted, inter alia, that the respondent’s s 78 Notice of 11 February 2022 conceded injury to the cervical spine. I do not accept that submission. In my view, the respondent disputed s 4 injury to the cervical spine.
32.	I approach the medical certificates and note of Dr Al Mamun prior to March 2019 with caution, as there is no information as to the circumstances of his early consultations, and as to the accuracy of the matters recorded, in circumstances where, prior to 19 March 2019, Dr Al Mamun referred the applicant to Dr Borire, a neurologist, who did take a history of referred pain cranially to the neck and who opined musculoskeletal shoulder girdle and neck pain. I do not accept that the medical certificate of 27 March 2019, in diagnosing only the right shoulder injury, does not assist the applicant. In my view the referral to Dr Borire, a neurologist, and reference to an MRI of the neck, does support the applicant’s evidence that he had conveyed neck symptoms to his treating doctors. Dr Al Mamun’s report of 16 March 2020 does not assist as it was provided with respect to psychological symptoms. While noting the “main symptoms” were persisting shoulder pain, Dr Al Mamum was the addressee of the reports of Dr Borire and Dr Manohar in March and July 2019 respectively.
33.	In my opinion, the applicant’s explanation in his statement of 24 March 2022 of his neck symptoms, and his lack of specific reference to them in his earlier statement, is not contradicted or reduced in reliability by a lack of reference to neck symptoms prior to 19 March 2019. I do not accept the respondent’s submissions that there was a form of reconstruction or unreliable memory in the applicant’s 2022 statement. In my view, the histories recorded by Dr Borire and Dr Manohar support the applicant. There was a period of about four months between the incident of 5 November 2018 and the report of Dr Borire, in which neck symptoms, albeit described as referred cranially to the neck, were recorded in the context of the incident of 5 November 2018 and an opinion of musculoskeletal neck pain was given. The applicant thereafter complained of neck pain to Dr Manohar in July 2019. 
34.	I do not prefer the view of Dr Kuah in December 2019 that the neck pain was secondary to the right shoulder symptoms, as he did not refer to the histories recorded by Dr Borire and Dr Manohar that were recorded several months previously. Dr Powell’s history in my view does not assist. He recorded no complaint of neck pain at the time of examination in June 2019, while he also noted restricted cervical spine movement. The reports of Dr Borire and Dr Manohar respectively preceded and post dated the report of Dr Powell. In my view, the absence of recorded neck pain in the reports of Dr Dave and Dr Kadavil do not detract from the histories noted with respect to Dr Borire and Dr Manohar. I do not accept the respondent’s submissions that the history of referred pain to the neck that was recorded by Dr Borire does not support the applicant, as Dr Borire provided his opinion that the shoulder girdle and neck pain was musculoskeletal. 
35.	I accept the applicant’s evidence in this regard. I have not given weight to the clinical note of Mr Hreszczuk dated 13 December 2019. It is a “body chart” provided in unexplained and unsupported circumstances, without identifying to whom the chart refers.
36.	In my view there was ambiguity in Dr Bosanquet’s opinion as to whether his opinion that there was no injury to the cervical spine at the time of his examination of the applicant on 4 June 2020, rather than at the time of, or following, the incident of 5 November 2018. Indeed, Dr Bosanquet’s supplementary report of 15 June 2022, indicates the former possibility when he stated that when he examined the applicant he found a full range of movement and no evidence of injury to that region.
37.	Dr Bosanquet, in my opinion, did not discuss in his reasons the histories recorded by Dr Borire in March 2019 of neck pain, Dr Dave in March 2019 of numbness down both arms, right worse than left, and Dr Manohar in July 2019 of neck pain, although he noted their reports in his list of documents reviewed. Further, while Dr Bosanquet noted the MRI findings of 2 April 2019, he did not discuss such findings in his reasoning process that there was no injury to the cervical spine. I do not accept the respondent’s submission that the clinical history recorded on the MRI report of 2 April 2019, that is no reference to the neck, did not assist the applicant. This was at best a cryptic history, when considered against the referral to Dr Borire and the history and opinion that was provided in his report of 19 March 2019.
38.	In contrast, Dr Patrick did consider the histories recorded by Dr Borire and Dr Manohar. Dr Patrick also considered the MRI findings of 2 April 2019 in reaching his conclusion that the applicant sustained injury to his cervical spine as Dr Patrick described. In my view, the reports of Dr Borire and Dr Manohar were significant in considering the issue of whether the applicant sustained injury to his neck on 5 November 2018. I prefer the opinion and reports of Dr Patrick over those of Dr Bosanquet. I do not accept the submission of the respondent that Dr Patrick did not provide a diagnosis. As summarised above, in my view he did describe or diagnose injury to the cervical spine. Although Dr Patrick did refer to the mechanism of injury being well known, he made this observation with specific reference to the circumstances of injury on 5 November 2018, and as such his reports should be read as a whole in this regard.
39.	In accepting the evidence of the applicant and the opinion of Dr Patrick, and having regard to the circumstances of the incident on 5 November 2018 and the reports of Dr Borire and Dr Manohar, in my view there is a common sense chain of causation between the work duties described, and the injury to the applicant’s cervical spine.
40.	I find on the balance of probabilities that the applicant sustained injury to his cervical spine on 5 November 2018 pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act). I accept the opinion of Dr Patrick that the applicant’s employment duties on 5 November 2018 were a substantial contributing factor to the injury to his cervical spine. I find, pursuant to s 9A of the 1987 Act, that the applicant’s employment on 5 November 2018 was a substantial contributing factor to the injury to his cervical spine.