CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Hoque v State of NSW (HealthShare NSW) [2022] NSWPIC 656	
		
APPLICANT:	Kazi Hoque	
		
RESPONDENT:	State of NSW (HealthShare NSW)	
		
Member:	Rachel Homan	
		
DATE OF DECISION:	28 November 2022	
		
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; accepted cervical and lumbar injury due to nature and conditions of employment as a hospital cook; whether right shoulder injured in same manner; contemporaneous reports of upper limb symptoms initially attributed to cervical injury by treating practitioners; delay in investigation of shoulder; whether applicant’s expert evidence should be accepted; Held – review of treating evidence, radiological evidence and medicolegal evidence; applicant’s expert opinion accepted; matter remitted to President for referral to a Medical Assessor.	
determinations made:	1.	The applicant sustained an injury to the right shoulder as a result of the nature and conditions of his employment with the respondent pursuant to s 4(b)(ii) of the Workers Compensation Act 1987.	
		
ORDERS MADE:	2.	The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:	26 June 2018 (deemed)
Body parts:	Cervical spine
	Lumbar spine
	Right Upper Extremity (shoulder)
	Skin (scarring)
Method:	Whole Person Impairment
3.	The materials to be referred to the Medical Assessor are to include all documents admitted in the proceedings. 	

STATEMENT OF REASONS

BACKGROUND
1.	Mr Kazi Hoque (the applicant) commenced employment with the State of NSW (HealthShare NSW) (the respondent) as a full-time cook at Royal Prince Alfred Hospital in 2012. The applicant claims that, as a result of the nature and conditions of his employment, he sustained an injury to his cervical spine, lumbar spine and right shoulder.
2.	On 28 February 2022, the applicant’s solicitors made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) relying on an assessment by orthopaedic surgeon, Dr James Bodel, of 26% whole person impairment (WPI) of the cervical spine, lumbar spine, right upper extremity (shoulder) and skin (scarring).
3.	On 27 June 2022, the respondent responded to the claim making an offer for 16% WPI of the cervical spine and lumbar spine only, in reliance upon an assessment by orthopaedic surgeon, Dr Richard Powell.
4.	The respondent’s offer was not accepted and the applicant commenced proceedings in the Personal Injury Commission (the Commission) by lodgement of an Application to Resolve a Dispute (ARD) on 2 September 2022. The applicant seeks lump sum compensation in accordance with Dr Bodel’s assessment. 
PROCEDURE BEFORE THE COMMISSION
5.	The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 21 November 2022. The applicant was represented by Ms Nicole Compton of counsel, instructed by Mr Matthew Garling. The respondent was represented by Mr Paul Stockley of counsel, instructed by Ms Maddi Chaplin. A representative from the insurer, Ms Mallard was also present.
6.	During the conciliation conference, directions were made admitting into evidence late documents lodged by both parties. I also granted leave to the applicant, without objection from the respondent, to amend the ARD to specify that the date of injury relied upon (26 June 2018) was a deemed date of injury and to indicate that the injury relied upon was a “disease” injury for the purposes of s 4(b) of the 1987 Act.
7.	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. 
ISSUES FOR DETERMINATION
8.	The parties agree that the following issues remain in dispute:
(a)	whether the applicant sustained an injury to the right shoulder as a result of the nature and conditions of his employment with the respondent pursuant to s 4(b)(ii) of the 1987 Act, and
(b)	the degree of permanent impairment resulting from the injury on 26 June 2018 (deemed).
EVIDENCE
Documentary evidence
9.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	ARD and attached documents;
(b)	Reply and attached documents;
(c)	documents attached to an Application to Admit Late Documents lodged by the applicant on 2 November 2022, and
(d)	documents lodged by the respondent on 21 November 2022.
10.	Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
11.	The applicant’s evidence is set out in a written statement made by him on 24 August 2022. 
12.	The applicant stated that in or about 2017, he noticed the onset of some neck pain into his upper back and across his left shoulder which he attributed to the nature and conditions of his employment, involving repetitive lifting and stacking of boxes and stock and operating a can opener over 100 times per day. The applicant consulted his general practitioner and received physiotherapy. The applicant returned to normal duties after a short period off work.
13.	On 26 June 2018, the applicant again developed neck pain and right shoulder pain as well as pain in the lumbar spine. The applicant said this was brought on by several months of repetitive and heavy lifting of boxes of stock.
14.	Although the pain in the applicant’s neck was the most severe, he also had pain into his shoulder and complained of right shoulder pain radiating from his neck or actual pain in the shoulder.
15.	The applicant consulted his general practitioner, Dr Bazlul Karim, initially at Allcare Medical Centre and subsequently at Our Medical Home Gregory Hills. Dr Karim was mostly concerned with the applicant’s neck pain and this was the focus of his treatment.
16.	The applicant underwent an MRI scan on 26 September 2018 and was referred to Associate Professor Mark Sheridan. The applicant was referred for a further bone scan and CT scan.
17.	The applicant was also referred to Dr Lewis Holford and treated with medication, physiotherapy, an exercise program and pain management.
18.	The applicant’s pain did not improve and he was referred to Dr Balsam Darwish in December 2020. Dr Darwish recommended surgery and the applicant underwent an L4/5 and L5/S1 decompression procedure on 26 February 2021.
19.	The applicant said he had pain in his right shoulder girdle, aggravated by any static posture or overhead use of the right arm. The applicant said he had always complained of pain in the right shoulder but his doctors had been more concerned about the neck and lower back. The applicant recently returned to see Dr Karim with regard to his ongoing shoulder pain and was referred for an MRI scan of both shoulders.
Treating medical evidence
20.	In a consultation on 1 May 2017, the applicant’s general practitioner, Dr Bazlul Karim recorded symptoms of left-sided neck pain and left shoulder pain starting after heavy lifting at work.
21.	On 5 May 2017, Dr Karim noted that the applicant’s left-sided neck pain and left shoulder pain had settled.
22.	On 22 May 2017, Dr Karim recorded:
“mod to severe pain this morning during driving on the way to work 
pain started to right hand and then spread up to right shoulder also c/o pain at that time - right side of the thoracic back 
pain on and off 
very minimal pain now”
23.	The applicant was seen by Dr Karim on 29 June 2018 reporting neck pain, mostly on the right side. Dr Karim noted pain “radiated to the right upper limb up to hand”.
24.	On 2 July 2018, Dr Karim recorded symptoms of neck and back pain. There was said to be no tingling sensation or numbness in the right upper limb.
25.	On 6 July 2018 it was noted:
“also c/o numbness right upper limb - in the morning 1 st 3-4 hours - as the day progress numbness - does get better.”
26.	On 28 September 2018, Dr Karim recorded:
“pain radiates to the right arm - up to the elbow”
27.	In a clinical note recorded on 2 November 2018, Dr Karim stated:
“pain mostly - right side of the neck/right shoulder/right arm 
pain worse at night - no sleep last 2 nights 
O/E - Neck nil swelling 
nil midline tenderness 
nil tenderness others 
full ROM with mild pain 
Right shoulder – NAD
Right arm - mild swelling - triceps nil others”
28.	Management of the applicant’s symptoms included Panadeine Forte and rest. The applicant was to undertake suitable duties.
29.	On 19 November 2018, Dr Karim noted:
“Has seen Dr Sheridan 
advised for bone scan 
pain as before - right side of the neck/right shoulder/right arm”
30.	The applicant’s pain was described by Dr Karim as including the following on 23 November 2018:
“pain radiates to the right eblow at night 
also c/o heaviness biltaeral scapular border”
31.	The applicant was seen by neurosurgeon, Associate Professor Mark Sheridan, who, on 23 November 2018, prepared a report for Dr Karim which recorded a history as follows:
“As, you know he was injured at work last year. Since that time, he has had some persisting pain in his neck and lower back. The pain in his neck is his main problem at the moment. It has been a lot worse in the last few months. He is quite restricted with some of his physical activities. His pain radiates from his neck to both his shoulders.”
32.	A bone scan performed at Associate Professor Sheridan’s request on 11 December 2018 was reported, amongst other things, to show:
“There are mildly active arthritic changes in the acromioclavicular joint bilaterally and unequivocally active arthritic change is noted in both humeral heads.”
33.	In a report dated 16 January 2019, Associate Professor Sheridan referred to the bone scan and stated:
“This shows some inflammation in his neck as well in his shoulders consistent with his injury and some of his ongoing pain. At the moment there is nothing here that will need surgery. I think he would benefit from going to see a pain management specialist which I will leave in your hands.”
34.	In January and February 2019, Dr Karim continued to record reports of neck pain radiating to both elbows, but particularly the right elbow, complaints of burning sensation and radiating pain from the right side of the neck to the right arm and difficulty moving the right arm.
35.	In July, August and September 2019, Dr Karim recorded complaints of neck pain radiating to both elbows, but particularly the right elbow.
36.	In clinical records made in in the first half of 2020, Dr Karim consistently recorded complaints of neck pain, thoracic and lumbar back pain as well as pain radiating to the right upper limb.
37.	On 28 October 2020, Dr Karim also noted complaints of a tingling sensation, often on the right upper limb.
38.	On 9 July 2021, Dr Karim recorded complaints of:
“persistent neck pain/thoracic back pain/shoulder pain”
39.	In a clinical record prepared on 5 August 2021, Dr Karim gave more detailed summary of the applicant’s condition, noting that although the applicant was new to this practice he was known to the doctor for a long time. Dr Karim recorded:
“new pt - this practice 
pt is known to me for long time >10 years 
suffering from work relaed injury 
right sided neck pain/lower thoracic and upper lumber back pain 
surgery in feb/2021 L4/5 and L5/S1 intersegmental decpompression 
paresthesia in his right leg on and off 
paresthesia right upper limbs up to elbow persisting 
right sided low back pain 
right sided llow back pain on and off 
heaviness - right lower limb on and off”
40.	Paraesthesia in the right upper limb to elbow was noted by Dr Karim at consultations in September 2021.
41.	On 13 April 2022, Dr Karim noted that the applicant had been assessed by Dr Bodel. The applicant’s symptoms were described as “as before – no change”.
42.	At a case conference 6 July 2022, Dr Karim recorded,
“right shoulder pain since the injury 2018 
left shoulder pain - 2017 
bone scan by Mrk sheridan - arthritic changes both acrimioc!avicular joints and both humeral heads.) 
advised for MRI - both shoulder 
review after MRI”
43.	The applicant was referred for an MRI of both shoulders, the results of which were discussed with the applicant on 19 July 2022. In a consultation recorded on 27 July 2022, Dr Karim noted:
“pain right shoulder also a bit worse for few days 
pain in the neck/thoracic back/lumber back as before
pt has been suffering from right shoulder pain from the beginnlng of the work related injury H/o left shoulder pain - work related injury 2017 
persisting mild left shoulder pain but right shoulder pain worse than the left 
his neck pain/back pain/lower limbs pain always worse than the shoulder pain 
that's why shoulder pain overlooked 
Recent MRI explained his shoulder problem in details 
H/o repetitive heavy lifting at work 
I believe his shoulder pain also work related 
discussed with pt 
medical certificate provided”
44.	In a medical certificate issued the same date, Dr Karim reported:
“Mr Kazi Hoque has been suffering from work related injury since 26/06/2018. He has been visiting me regarding his current work related injury since 29/06/2018. He has been suffering from right shoulder pain since the beginning of the injury. In my opinion his right shoulder pain also related to his work.”
45.	In a clinical note recorded on 3 August 2022, it was noted that the applicant had right shoulder pain as before.
46.	Page 1 of 2 of the report of the MRI of the left and right shoulders performed on 8 July 2022 is in evidence. In relation to the right shoulder, the findings included moderate intra-articular biceps tendinosis; slight fraying and grade 2 chondrocytes in the upper portion of the glenohumeral joint; subacromial subdeltoid bursitis; mild AC joint capsular sprain; and severe supraspinatus tendinosis with partial thickness articular surface tears.
Dr Bodel
47.	The applicant was first seen by orthopaedic surgeon, Dr James Bodel, for medico-legal examination on 13 February 2020.
48.	Dr Bodel took a history of pain in the neck and “shoulder girdle” in about June 2017. The condition improved and the applicant was able to go back to work, although he never completely recovered. On 26 June 2018, the applicant returned to his general practitioner because of increasing pain in the neck.
49.	Dr Bodel noted that the applicant had undergone an MRI scan and had been referred to Associate Professor Sheridan and Dr Holford. The applicant had continuing neck pain and right shoulder and arm pain.
50.	The applicant’s current complaints were said to include:
“This gentleman still has neck pain and right shoulder and arm pain. He has numbness and tingling radiating to all five digits of the right hand.”
51.	Dr Bodel recorded an examination of the neck and right shoulder, observing:
“He has some mild generalised wasting in the right shoulder girdle. There is tenderness over the rotator cuff anteriorly on the right side, and there is restricted range of shoulder movement on the right…There is impingement in the right shoulder but no instability.”
52.	Dr Bodel considered the radiological investigations, including the bone scan taken on 11 December 2018. Dr Bodel made a diagnosis as follows:
“This gentleman has developed significant neck pain with disc pathology in the cervical spine and rotator cuff pathology in the region of the right shoulder. He has non-verifiable radicular complaints in the right upper limb. His clinical circumstance has arisen as a result of the nature and conditions of work by the way of aggravation, acceleration, exacerbation and deterioration of an underlying disease process being the cervical disc pathology and the rotator cuff pathology.”
53.	On this occasion, Dr Bodel made an assessment of 13% WPI of the cervical spine and right upper extremity.
54.	Dr Bodel saw the applicant again on 7 February 2022. On this occasion, the applicant indicated that he had also injured his lower back. Dr Bodel’s history referred to neck and “right shoulder girdle pain” in June 2017. 

55.	The applicant’s current complaints included:
“neck and right shoulder girdle pain aggravated by head down posture or trying to use his right arm overhead.”
56.	On examination, Dr Bodel again found restricted range of shoulder movement on the right.
57.	Dr Bodel gave a diagnosis as follows:
“…the diagnosis here is a degenerative disc disease in the cervical spine with no clinical sign of radiculopathy, degenerative disc disease with right-sided sciatica requiring surgery and then the rotator cuff pathology in the region of the right shoulder.”
58.	In a further report dated 27 October 2022, Dr Bodel said he had read the applicant’s statement dated 24 August 2022. Dr Bodel noted that in that statement, the applicant confirmed that he first became aware of pain in the upper part of the back and across to the left shoulder in 2017. Neck pain and right shoulder girdle pain was noted in June 2018.
59.	Dr Bodel observed that the applicant had undergone MRI of both shoulders on 8 July 2022, which was reported to show at the right shoulder, 
“…severe supraspinatus tendinosis with partial thickness articular surface tears and on the left hand side similar tendinosis and partial thickness tears as well.”
60.	Dr Bodel gave a diagnosis in relation to the right shoulder of supraspinatus tendinitis and bursitis and partial thickness tear of the supraspinatus tendon. With regard to causation, Dr Bodel stated,
“In my view, the nature and conditions of work, which involves a lot of heavy lifting of boxes of stock, using the can opener repetitively and the nature of work in general has caused the injury to the right shoulder by way of aggravation, acceleration, exacerbation and deterioration of that disease process, which is the rotator cuff tear.”
Dr Powell
61.	The applicant was first seen at the request of the insurer by Independent Medical Examiner, Dr Richard Powell, on 20 March 2019.
62.	Dr Powell took a history of injury to the cervical spine in 2017 with the development of pain in the neck radiating down to the right shoulder and upper thoracic spine after repetitive lifting of boxes on and off shelves and trolleys, as well as operating a lever-activated can opener up to 100 times per shift.
63.	The applicant’s symptoms largely settled but, on 26 June 2018, flared again without specific precipitating incident. The applicant complained of neck and radiating right shoulder pain. The applicant also reported pain extending into the thoracic and upper lumbar region. The applicant was investigated with an MRI scan and specialist opinion obtained from Associate Professor Sheridan. He arranged further investigations with a bone scan. Continued conservative management was recommended. After a period off work, the applicant returned on light duties.
64.	The applicant’s symptoms were described as follows:
“Mr Hoque's major ongoing concern is in relation to the cervical spine. He reports intermittent sharp pain in the midline region of the neck which radiates across to the right side. Pain can extend down the posterior aspect of the right arm to the elbow. He is aware of intermittent numbness following a similar distribution.”
65.	Dr Powell recorded an examination of the cervical spine and neurological examination of the upper limbs which revealed normal tone and power but reduced sensation to light touch involving the right hand in a global fashion.
66.	Dr Powell diagnosed chronic neck pain as a result of multilevel spondylitic change and said it was reasonable to conclude that the applicant’s employment represented a substantial contributing factor to an aggravation of the pre-existing degenerative changes.
67.	Dr Powell saw the applicant again on 27 April 2022. In his medico-legal report dated 16 June 2022, Dr Powell again recorded a history of insidious onset of pain radiating from the neck into the upper back and across to the right shoulder in 2017. Symptoms flared on 26 June 2018. Dr Powell recorded the applicant’s ongoing symptoms in the cervical and lumbar spine and provided a diagnosis in respect of injuries to those body parts.
68.	Dr Powell was also asked to provide a diagnosis in respect of the right shoulder. Dr Powell responded:
“There is no history of any specific injury to the right shoulder. As far as I am aware, he has not undergone any specific investigations of the right shoulder. These most likely represent referred symptoms from the degenerative cervical spine condition. It is possible that he has some underlying degenerative pathology in the shoulders, which is common with increasing age but in the absence of any investigations it is difficult to provide further comment.”
69.	Dr Powell was asked to consider the cause of the applicant’s right shoulder condition. The question put to Dr Powell noted that the claim had been accepted on the basis that the applicant had aggravated underlying degenerative changes in the right shoulder on or around 26 June 2018 as a result of the heavy nature of his employment duties. Dr Powell was asked whether he agreed. Dr Powell responded:
“As far as I am aware, no right shoulder condition has been definitively diagnosed. There is no history of injury. He has reported variable bilateral upper limb symptoms, which have included referred pain and sensory changes involving the right upper limb. I am not aware of him undergoing any specific investigations of the right shoulder nor receiving any directed treatment or any specialist review. I was not aware that liability had been accepted for his right shoulder and consequently today’s examination was directed primarily to the cervical spine and lumbar spine. Although it is possible he has suffered injury to the shoulder, this does not appear to have been diagnosed, quantified or had treatment. It is difficult to see how he could be considered to have reached a state of maximum medical improvement for a condition which has not been diagnosed or treated.”
70.	In a supplementary report dated 16 November 2022, Dr Powell was asked to consider page 1 of the report of the MRI scan dated 8 July 2022 and the certificate issued by Dr Karim, dated 27 July 2022, amongst other documents.
71.	Dr Powell was asked to provide an opinion as to whether the applicant had an injury to the right shoulder in the form of structural damage or pathological change. Dr Powell noted that he had not undertaken a directed clinical examination of the applicant’s shoulders. Dr Powell noted the findings on the MRI and commented that the findings were remarkably symmetrical. Dr Powell commented:
“The results of the MRI scan clearly establish the presence of structural pathology in both shoulders. It is interesting to note that both shoulders demonstrated evidence of what appears to be a symmetrical glenohumeral joint osteoarthritis. This is not a particularly common finding and the presence of symmetrical degenerative changes involving the glenohumeral joint and acromioclavicular joints of both shoulders as well as multilevel degenerative pathology in the cervical spine and lumbar spine in a gentleman in his 40s raises the possibility of an underlying primary osteoarthritic process.”
72.	In relation to whether a diagnosis could have been made earlier, Dr Powell noted that it can be difficult to distinguish between referred upper limb pain secondary to a chronic degenerative cervical spine process and intrinsic pathology in the shoulders. The treating clinician would be guided by the reported mechanism of injury and symptom profile provided by the patient. The dominating feature of the references to upper limb pain in the clinical notes was of referred pain from the cervical spine. In those circumstances, it was probably reasonable to concentrate on the readily diagnosable condition involving the cervical spine.
73.	Asked to identify the shoulder pathology, Dr Powell responded,
“The available evidence indicates that Mr Hoque is suffering from a degenerative disease process involving the right shoulder. There is no history of any specific injury. The degenerative process involves the rotator cuff, biceps mechanism, acromioclavicular joint and glenohumeral joint. The pathology appears to be part of a symmetrical process and is in addition to the degenerative pathology involving the cervical thoracic and lumbar spines.”
74.	Dr Powell was asked, if the applicant had a right shoulder injury, what was the aetiology of the injury. Dr Powell responded to this question as follows:
“He is suffering from a degenerative disease process involving the right shoulder. There is no specific history of injury. The condition appears to be symmetrical. No cause has been identified though it is possible it represents part of a more widespread underlying degenerative disease process. This warrants further investigation as I have indicated above. The overwhelming contemporaneous evidence indicates the symptom complex described by Mr Hoque and accorded by various treating doctors that in the course of the management of his claim is of chronic neck and referred bilateral upper limb symptoms. I do not believe there is sufficient evidence to conclude that his employment represents the main contributing factor in the development of the bilateral degenerative disease process involving both shoulders. Mr Hoque was reviewed by a number of different treatment providers in the course of the management of his claim over the past five years though none have seen fit to investigate the shoulders until Dr Karim in July 2022.”
75.	Dr Powell was asked whether, on the balance of probabilities, any right shoulder injury or condition was caused by the nature and conditions of the applicant’s employment. Dr Powell responded:
“On the balance of probability, I would consider it is unlikely that his bilateral symmetrical degenerative shoulder condition in addition to the widespread degenerative disease process involving the cervical spine and lumbar spine are the result of his employment with the insured.”
76.	Dr Powell was asked whether the applicant’s condition was an aggravation or exacerbation of a pre-existing condition or underlying degenerative pathology. If so, Dr Powell was asked whether the aggravation had now ceased. Dr Powell responded:
“As I have not undertaken a directed clinical examination of his shoulders nor reviewed the recent bilateral MRI scans it is not possible for me to comment definitively on whether or not his current presentation includes a contribution from intrinsic pathology within the shoulders and whether or not this is representative of aggravation and furthermore whether that aggravation is ongoing or has resolved.”
Applicant’s submissions
77.	The applicant referred to the description of his duties in his written statement as well as his account of the onset of symptoms.
78.	The focus of medical attention had been on the applicant’s cervical spine initially and later the lumbar spine condition, for which he eventually underwent surgery performed by Dr Darwish.
79.	The applicant noted that there were contemporaneous complaints of right shoulder pain but also significant cervical and lumbar symptoms. The treating evidence was summarised by Dr Bodel in his reports.
80.	The applicant noted Dr Powell’s observation that it can be difficult to distinguish between referred upper limb pain secondary to a chronic degenerative cervical spine process and intrinsic pathology in the shoulders. The treating clinician would be guided by the reported mechanism of injury and the symptom profile provided by the patient. In all the circumstances, it was probably reasonable to concentrate on the readily diagnosable condition involving the cervical spine. The applicant submitted that Dr Powell conceded that manner in which the applicant complained of symptoms explained the focus on the cervical spine.
81.	The applicant noted the recent radiological examination of the shoulder. Dr Bodel had made a diagnosis after considering the MRI scan. Dr Bodel confirmed that the nature and conditions of the applicant’s employment caused an injury to the right shoulder pursuant to s 4(b)(ii) of the 1987 Act. The applicant submitted that the Commission would be comfortably satisfied that Dr Bodel’s opinion should be accepted.
82.	To the extent that the Commission may be concerned about a delay in shoulder symptoms being diagnosed or investigated, the applicant noted that there was now a definitive diagnosis. Dr Powell conceded that the MRI scan confirmed the presence of structural pathology at the shoulder.
83.	The applicant submitted that Dr Powell had not considered the nature and conditions of the applicant’s employment but was looking for a specific injurious event or injury simpliciter.
84.	The applicant went through the clinical records from Dr Karim noting references to complaints of symptoms in the right upper limb. The first clear reference the shoulder was on 2 November 2018. A bone scan done on 19 November 2018 revealed degenerative pathology at the shoulders. Associate Professor Sheridan commented that the pathology shown on the bone scan was consistent with the injury and ongoing pain.
85.	The applicant said the treating evidence revealed consistent complaints of pain in the general anatomical area by the applicant. It was for the doctors to diagnose the condition. The applicant regularly reported shoulder symptoms consistent with the now diagnosed shoulder condition.
86.	Dr Karim had given the opinion that the shoulder symptoms were overlooked due to the more significant cervical and lumbar symptoms. The shoulder problem was now explained by the MRI scan. Dr Karim expressed the opinion that the shoulder symptoms were related to repetitive heavy lifting at work. The applicant observed that this was a causal explanation from a treating practitioner who had seen him many times over multiple years. 
87.	The applicant submitted that Dr Bodel’s opinion was made more clear in his most recent report, although an opinion that there was a shoulder injury was given in his first report.
88.	The applicant noted that Dr Powell did not consider the bone scan or Dr Bodel’s reports. Although the MRI was only recent, there was a plethora of other evidence of a right shoulder injury.
89.	The applicant submitted that the Commission would accept Dr Bodel’s opinion and find an injury to the right shoulder pursuant to s 4(b)(ii) of the 1987 Act.
Respondent’s submissions
90.	The respondent submitted that the applicant had misunderstood the significance of the contemporaneous evidence. The respondent was not suggesting that the shoulder symptoms were a recent invention. Rather, the dispute between the parties was over the interpretation of the contemporaneous complaints.
91.	Both Dr Powell and Dr Bodel took a background history of pain radiating to the shoulders. Contrary to the history provided to the experts, however, the clinical records of Dr Karim recorded only left sided complaints in 2017. The only reference to right sided symptoms in 2017 related to driving and was unrelated to any event at work.
92.	Dr Bodel incorrectly assumed that the applicant had work-related right shoulder symptoms in 2017. What the applicant told the doctors was wrong.
93.	The record of symptoms made on 29 June 2018 was of radiating or referred pain to the right upper limb. In that context, it was reasonable that Dr Karim did not investigate the shoulder. Shoulder symptoms were not a presenting feature demanding investigation.
94.	The referral to Associate Professor Sheridan was not for opinion on a shoulder injury. Associate Professor Sheridan was being asked about the neck. The findings on the bone scan at the shoulder were incidental.
95.	There was no controversy that the 2022 MRI showed structural pathology but that did not mean there was an injury. It was incorrect to say that the acknowledgement of the structural pathology by Dr Powell was a concession of injury. The correct question was whether there was any contribution to the pathology by work.
96.	In considering Dr Bodel’s reports, the respondent submitted that the Commission ought to look to his reasoning. It was not clear why Dr Bodel reached the conclusions he had. No insight was given as to how the nature of work aggravated the underlying condition. Dr Bodel did not say of what the aggravation consisted. Dr Bodel recited matters of history then gave an opinion. Dr Bodel’s reports fell foul of the requirements for expert evidence by reference to the principles in cases such as Makita (Australia) Pty Ltd v Sprowles. Dr Bodel did not deal specifically with clinical notes and took an incorrect history of symptoms in 2017.
97.	The respondent observed that neither Dr Powell nor Dr Bodel had the films of the shoulder MRI. Dr Powell recorded that the findings at both shoulders were remarkably symmetrical. Symmetrical osteoarthritis was not a common finding and raised the possibility of a primary osteoarthritic process. 
98.	The respondent submitted that Dr Powell did not make any concessions but simply provided an opinion. Dr Powell noted the absence of complaint of specific shoulder symptoms and the proximity of a neck condition. Dr Powell considered that a positive and direct opinion was not possible.
99.	The respondent submitted that the state of evidence did not support Dr Bodel’s conclusion.
Applicant’s submissions in reply
100.	The applicant noted that a shoulder injury was diagnosed by Dr Bodel in 2020 and confirmed following the receipt of the MRI.
101.	Dr Bodel said he had carefully perused the documents. Those documents included the clinical notes and bone scan. Dr Bodel clearly had before him Dr Karim’s records.
102.	The applicant noted that Dr Bodel had examined the shoulder but Dr Powell did not. This circumstance limited the weight that ought to be given to Dr Powell’s opinions.
103.	Dr Powell did not deal with the possibility of an aggravation of the degenerative pathology, only whether there was sufficient evidence to conclude that employment was the main contributing factor to the development of the degenerative disease.
Respondent’s further comments
104.	The respondent submitted that if Dr Bodel had the clinical records, he did not refer to them in detail. Either they were provided to him but he did not read them or he read them but did not notice that they were different to what the applicant told him. This omission diminished the utility of his opinion.
105.	The respondent said it was irrelevant that Dr Powell did not examine the shoulder because he agreed with the diagnosis. Examination would not reveal the contribution of employment to the condition.
FINDINGS AND REASONS 
106.	Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) 	means personal injury arising out of or in the course of employment,
(b) 	includes a disease injury, which means:
(i) 	a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) 	the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) 	does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
107.	The applicant in these proceedings relies on an injury to the right shoulder pursuant to s 4(b)(ii) of the 1987 Act.
108.	In AV v AW at [65]-[78] Snell DP considered a number of authorities on s 4(b) and said:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor. The following may be taken from the above: 
(a) 	The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury. 
(b) 	The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence. 
(c) 	In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
109.	It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained an injury to his right shoulder. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited McDougall J stated at [44]: 
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
110.	The medical evidence before the Commission establishes that the applicant has degenerative pathology at the right shoulder. This is confirmed by the MRI undertaken on 8 July 2022 and there is no controversy between the parties’ medicolegal experts as to the existence of diagnosable pathology at that site.
111.	As noted by the respondent’s submissions, however, the presence of pathology does not necessarily mean there has been an injury for the purposes of s 4 of the 1987 Act. There is a dispute between the parties as to the contribution to the shoulder pathology made by the nature and conditions of the applicant’s employment with the respondent.
112.	The only evidence before the Commission as to the nature of the applicant’s employment duties is set out in the applicant’s written statement and in the histories he has provided to the doctors involved in this case. That evidence consistently indicates that the applicant’s work as a full-time cook in a hospital setting involved repetitive heavy lifting of boxes and stock and repeated use of a lever operated can opener, up to 100 times per shift. The respondent has not put on any evidence to challenge the applicant’s account of his duties. The Commission accepts, on the applicant’s account, that his duties involved repetitive, heavy lifting and use of a lever, being tasks which are likely to have engaged the right shoulder.
113.	One of the major challenges for the applicant in discharging his onus is the delay in investigating symptoms in the right shoulder. Although the treating evidence shows that the applicant reported symptoms in or around the right shoulder and upper limb since late June 2018, for a long time, those symptoms appear to have been attributed to pathology in the cervical spine by the applicant’s treating doctors. References to radiating pain, tingling and numbness appear throughout the clinical records and other treating evidence.
114.	It has been accepted by the respondent’s insurer that the applicant has an injury to the cervical spine. The applicant’s cervical spine symptoms were investigated and reviewed by a neurosurgeon, Associate Professor Sheridan. A bone scan ordered by Associate Professor Sheridan in December 2018 showed, in addition to cervical pathology, mildly active arthritic changes in the acromioclavicular joint bilaterally and unequivocally active arthritic change in both humeral heads. 
115.	Associate Professor Sheridan, to whom the applicant had been referred for his cervical symptoms, and who was not an orthopaedic surgeon or shoulder specialist, commented at the time that the inflammation in the applicant’s neck as well in his shoulders was consistent with his injury and some of his ongoing pain. Although the shoulder pathology was not investigated further or specifically treated at the time, the bone scan and Associate Professor Sheridan’s comments are consistent with the pathology at the applicant’s shoulder being present and symptomatic at least in December 2018.
116.	No further investigation of the applicant’s shoulders was undertaken until the MRI in 2022. The applicant was, however, seen by Dr Powell in 2019 and Dr Bodel in early 2020. Both doctors took a history of symptoms at the right shoulder. Dr Powell described the symptoms at the right shoulder as radiating pain and appears to have accepted that this was a symptom of the applicant’s cervical pathology without considering further whether there was intrinsic pathology at the shoulder joint.
117.	Dr Bodel, however, described the shoulder pain as involving the “shoulder girdle”. In addition to a cervical injury, Dr Bodel diagnosed a shoulder injury. Although Dr Bodel did not have the benefit of an MRI investigation of the shoulder, he did refer to the shoulder pathology described on the bone scan. Importantly, Dr Bodel also performed an examination of the shoulder which revealed mild, generalised wasting in the right shoulder girdle, tenderness over the rotator cuff anteriorly on the right side, impingement in the right shoulder and restricted range of shoulder movement on the right. 
118.	Dr Bodel maintained his opinion that there was a right shoulder injury in his most recent report after considering the results of the 2022 MRI. Dr Bodel has given the opinion that the degenerative pathology at the applicant’s right shoulder was aggravated by the nature and conditions of the applicant’s employment as described to him.
119.	Dr Bodel’s evidence has been criticised by the respondent as falling foul of the prinicples for the acceptance of expert evidence as set out in cases such as Makita (Australia) Pty Ltd v Sprowles. It is necessary for an expert to give proper and cogent reasons for the opinion formed. What is required by way of an explanation for the expert’s opinion will, however, depend on the circumstances of each case, and an expert does not have to offer chapter and verse in support of every opinion. As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”.
120.	Whilst I accept that Dr Bodel has not explained precisely how the applicant’s work duties impacted upon the degenerative pathology revealed at the applicant shoulder, I accept that he has provided a qualified opinion, following an appropriate physical examination and consideration of the available investigations, based upon a history and understanding of the applicant’s work duties which aligned sufficiently with the factual findings I have made. 
121.	I have given consideration to the apparent inconsistency identified by the respondent in the medico-legal histories as to whether the applicant’s right shoulder was symptomatic in 2017. Although both Dr Powell and Dr Bodel, in his second report, have recorded a history of right shoulder symptoms related to work in 2017, I accept that this is not supported by the contemporaneous clinical records. The history eventually provided in Dr Bodel’s final report does, however, align with the clinical records. I have given little weight to the inconsistency in the earlier reports, given that the injury relied on in these proceedings is one dating from June 2018.
122.	Dr Bodel’s opinion also receives support from the applicant’s long-standing general practitioner, Dr Karim. Although Dr Karim’s contemporaneous clinical records do not make clear that the applicant was suffering from symptoms at the shoulder joint until more recently, Dr Karim has accounted for this, stating that the shoulder pain had been overlooked as the applicant’s cervical and lumbar symptoms were more severe. When the shoulder symptoms were specifically brought to his attention in 2022, Dr Karim ordered investigations of the shoulders, which revealed pathology he considered to be consistent with the applicant’s complaints. Dr Karim has expressed the opinion that the symptoms were present from the time the applicant ceased work and were causally related to the applicant’s work duties.
123.	Dr Karim’s explanation of how the shoulder symptoms were overlooked receives some support from Dr Powell, who noted that it can be difficult to distinguish between referred upper limb pain secondary to a chronic degenerative cervical spine process and intrinsic pathology in the shoulders. Given the predominance of complaints related to radiating pain down the entire limb and paraesthesia, Dr Powell considered it was probably reasonable for Dr Karim to focus on the cervical spine.
124.	I have given careful consideration to Dr Powell’s reports in determining whether the opinions given by Dr Karim and Dr Bodel ought to be accepted. Dr Powell initially made no diagnosis in relation to the shoulder, finding the symptoms reported to him were attributable to a cervical spine injury. 
125.	At the time of his second report, Dr Powell was asked specifically whether the applicant had sustained an injury for the purposes of s 4(b)(ii). Dr Powell’s response, that the right limb symptoms were most likely attributable to cervical pathology, must, however, be viewed in the context of the material then available to Dr Powell. Dr Powell had not examined the shoulder. He did not, at that point in time, have the benefit of the MRI scan or the opinions of Dr Karim. Dr Powell also did not refer to Dr Bodel’s examination or diagnosis or the results of the bone scan at the shoulder, despite acknowledging that these were before him. Particular weight appears to have been given, in that report, to the absence of a specific injurious event, although no such event is relied on by the applicant. Notably, Dr Powell did not exclude the possibility of an injury to the shoulder and accepted that the applicant may have some degenerative pathology at that site.
126.	At the time of his final report, Dr Powell was briefed with all the evidence now before the Commission. Dr Powell confirmed the presence of structural pathology at the right shoulder as found on the MRI and accepted that the applicant had a degenerative disease process at both shoulders.
127.	Dr Powell did, however, continue to focus much of his attention on questions which are not presently relevant. Dr Powell again noted the absence of specific injury. He also considered whether the underlying disease process was caused by employment. 
128.	Dr Powell was specifically asked whether the pre-existing condition could have been aggravated or exacerbated by the applicant’s employment. His response, however, failed to engage directly with the question, referring again to the absence of specific injury and the presence of widespread degenerative disease.
129.	Dr Powell did note the consistent attribution of upper limb symptoms to the cervical spine by the applicant’s treating doctors and the delay in investigating the shoulder. Ultimately, Dr Powell found that, in the absence of the MRI images or clinical examination, he was unable to comment definitively on whether employment contributed to the aggravation of that pathology.
130.	As noted above, Dr Bodel did have the benefit of clinical examination. Although it is not apparent that Dr Bodel had the MRI images, he did provide an opinion based on all the available radiological evidence. Dr Bodel’s opinion receives support from Dr Karim who, as the applicant’s long-standing general practitioner, was well-placed to comment on the condition. 
131.	For the reasons given above, careful consideration of Dr Powell’s reports does not cause me to attribute less weight to or discount Dr Bodel’s opinion.
132.	I am satisfied, on all the evidence before me, that the applicant sustained an injury to the right shoulder due to the nature and conditions of his employment with the respondent in the nature of an aggravation of degenerative pathology. I am further satisfied that employment was the main contributing factor to the aggravation. The injury to the right shoulder satisfies the requirements of s 4(b)(ii) of the 1987 Act.
133.	Having made the finding above, it is appropriate that the matter be remitted to the President for referral to a Medical Assessor to make an assessment of the degree of permanent impairment at the applicant’s cervical spine, lumbar spine, skin (scarring) and right upper extremity (shoulder) resulting from the injury deemed to have occurred on 26 June 2018.