1. The parties agree impairment of the applicant's right upper extremity (shoulder) at 8%. Any permanent impairment of the cervical spine, lumbar spine and left upper extremity (shoulder) assessed by the Medical Assessor is to be combined with the agreed impairment of 8% for the right upper extremity (shoulder).
2. The documents to be reviewed by the Medical Assessor are:

(a) the Application to Resolve a Dispute and attached documents;

(b) the Reply and attached documents, and

(c) the second respondent's Application to Lodge Additional Documents dated 2 February 2026 and attached documents.

A brief statement is attached setting out the Commission's reasons for the determination.

1. The applicant Mr Omar Al-Nabulsi was employed as a hairdresser by Group Marketing (AUST) Pty Ltd t/as Barberhouse Café **(**the first respondent) on 12 December 2019 when he slipped on a wet tiled floor, fell backwards and alleges he injured his cervical spine, lumbar spine and both shoulders.
2. On 11 January 2021 the respondent's insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) disputing liability for the applicant's medical expenses and confirming liability was declined for injuries to the cervical spine, both shoulders, lumbar spine and bilateral feet.
3. The applicant claimed lump sum compensation for 21% whole person impairment (WPI) of his cervical spine, lumbar spine and bilateral shoulders on 24 January 2025.
4. On 31 March 2025 liability was accepted for the applicant's secondary psychological condition, lumbar spine and right shoulder injuries, and offered to resolve the applicant's lump sum compensation claim for 14% WPI of the lumbar spine and right shoulder.
5. An Application to Resolve a Dispute (ARD) was lodged in the Personal Injury Commission (Commission) on 29 October 2025 claiming lump sum compensation for 21% WPI of the cervical spine, lumbar spine, and right and left upper extremities.
6. The dispute was listed for conciliation conference and arbitration hearing on 6 February 2026.

1. The parties agree the issue remaining in dispute is whether the applicant sustained injuries to his cervical spine and/or left upper extremity on 12 December 2019 pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (1987 Act).

1. The parties appeared for conciliation conference and arbitration hearing on

6 February 2026 in Sydney with the applicant attending by audio visual link (MS Teams). Mr Phillip Perry of counsel appeared for the applicant instructed by Ms Joanne Nehme, legal practitioner. Mr Josh Beran of counsel appeared for the second respondent instructed by Ms Lily Fung, legal practitioner. Mr Vincent was also present. 2. It was agreed during conciliation that a finding would be made that the first respondent did not hold a valid New South Wales workers compensation policy at the time of the injury. 3. During conciliation the second respondent's Application to Lodge Additional Documents dated 3 February 2026 was admitted into evidence. 4. It was also agreed that when the matter is remitted to the President for referral to a Medical Assessor to assess the applicant's injuries there will be a notation included that the right shoulder impairment has been agreed between the parties at 8% WPI. 5. I am satisfied 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 the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

1. 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, and

(c) Workers Compensation Nominal Insurer (iCare) (second respondent's) Application to Lodge Additional Documents (ALAD) dated

3 February 2026 and attached documents.

1. No application was made to call oral evidence or to cross examine any witness.

1. The applicant relies on his statement signed on 12 August 2025. He is now 29 years of age. After arriving in Australia the applicant completed a one year intensive English course and obtained a TAFE qualification as a hairdresser. He worked as a labourer for about 18 months, at a barbershop for about a year and then as a casual hairdresser for about three days a week for about seven months.
2. The applicant commenced employment with the first respondent as a hairdresser in about December 2019. He was employed to work in the first respondent's Illawong location five or six days a week earning $300 per day.
3. On 12 December 2019 the applicant walked over to a chair to get his scissors where a co-worker had been mopping the floor. He slipped and fell backwards hitting his head, neck, both shoulders, lower back and right leg as he landed.
4. The applicant had trouble getting off the floor and his customer assisted him to his feet. He was in pain and felt a bit embarrassed but finished his customer's haircut.
5. His employer Chris telephoned him and said he had seen his fall on his CCTV footage, the floor should not have been mopped while customers were present and no "wet floor" warning sign was put up. He told the applicant he could go home and rest, which he did.
6. The applicant started to feel worse with jarring pains in his neck, both shoulders, lower back and right leg. His back pain was his main concern and it became unbearable. He sought medical attention from Dr Sivarajah that afternoon. He was referred for a CT scan which was carried out that day and he was advised to take Mobic and Panadeine Forte to manage his pain.
7. On 17 December 2019 the applicant saw Dr Kaur in the same practice as Dr Sivarajah. Dr Kaur told him the CT scan showed no fracture but there was a likely compression on the right side of his lower back. He was provided with a medical certificate which stated he was unable to work from 17 December 2019 to 14 January 2020.
8. In early 2020 the applicant started to notice increasing pain in his neck and shoulders. This was just as painful as his back pain by March or April 2020. Dr Kaur referred him for an MRI of his whole spine and both shoulders. The MRI of his shoulders showed mild supraspinatus tendinosis in both shoulders and a tear in the right shoulder.
9. The applicant had six or seven chiropractic sessions before the sessions ceased.
10. Dr Kaur referred him to Dr Maniam, orthopaedic surgeon, for his back and right shoulder pain and the applicant saw him in about May 2020. Dr Maniam was unable to offer any treatment to assist with his pain.
11. The applicant transferred his care to Dr Lim who he first consulted on 8 October 2020. Dr Lim referred the applicant to Dr Soo and Dr Singh, and for his psychological condition to Mr Carl Nielsen and Dr Kumagaya.
12. Due to a needle phobia the applicant did not have a nuclear medicine scan or cortisone injections recommended by Dr Singh and Dr Soo respectively. Non-surgical measures like physiotherapy and anti-inflammatory medications were suggested for the treatment of his shoulder. The applicant attended Infinity Physio for treatment of his neck, shoulders and lower back pain, and stopped at about the time of the COVID pandemic.
13. Dr Kumagaya diagnosed the applicant with post-traumatic stress disorder with panic attacks. The applicant also saw Mr Nielsen and Kim Dang, psychologists.
14. Most of the applicant's pain was in his back and he was heavily focused on that, however as time went on he noticed pain in his right shoulder which started to keep him up at night as well. His neck also became painful along with his left shoulder and he complained to his doctors about his back, neck and both shoulders. The applicant believes all those injuries arose as a result of the injury on 12 December 2019.
15. The applicant feels weakness in his back and pain radiating into his legs, numbness in his right leg and he has ongoing pain in his shoulders and neck, which feels stiff and tender most times. He describes the injuries and disabilities that result from the injury.
16. The applicant says he never previously had time off work due to injuries or health issues, and he has made no compensation claims prior to this claim.
17. He suffered a serious psychiatric injury on about 14 January 2020 following conversations he had with his boss in which threats were made of violence towards the applicant and his family when the applicant said he was lodging a workers compensation claim.
18. The injuries that have left him permanently disabled have significantly impaired the applicant's capacity to participate in normal social, domestic, recreational, sporting and employment activities.

Dr James Bodel, independent orthopaedic surgeon

1. Dr Bodel provides a report dated 1 November 2024.
2. Dr Bodel takes a history that after a three day trial with the first respondent at their Kogarah barber shop the applicant moved to work at their Illawong barber shop where he had been employed for about two or three weeks at the time of his injury.
3. Dr Bodel then records the history given by the applicant of what occurred on 12 December 2019 when he landed heavily on his buttocks and jarred his neck, both shoulders, lower back and right leg.
4. The applicant was having difficulty with his treatment and soon after he had additional problems with psychological issues which made it very difficult for him to get treatment. He found Dr Maniam's opinion not very helpful and he also saw Dr Gavin Soo, orthopaedic surgeon, about his shoulder and surgery was discussed as a treatment option. He saw Dr Bhisham Singh, spinal surgeon, who also discussed surgery but the applicant is reluctant to consider that at this time.
5. Dr Bodel notes the applicant has developed a very significant psychological disturbance. He describes the applicant's current complaints as including pain and stiffness in the neck and both shoulders, lower back pain and right hip and thigh pain. Current and proposed treatment includes taking medications and Dr Bodel notes he is no longer having physiotherapy.
6. Following his examination, in answer to a question put to him Dr Bodel finds the applicant has sustained cervical spine strain, bilateral shoulder strain, bilateral supraspinatus tendinosis, right labral tear with biceps tenosynovitis, lumbar spine radiculopathy and bilateral foot mild tenosynovitis injuries. Some of those issues have settled.
7. The applicant's neck is still symptomatic and there is also rateable restriction of the left shoulder and right shoulder range of movement, although there is no rateable impairment in the lower limbs. Ongoing disabilities are pain and stiffness associated with those injuries.
8. Dr Bodel assesses the applicant with 5% WPI of the cervical spine, 5% WPI of the lumbar spine, 2% loading for compromise of activities of daily living, 8% WPI of the right shoulder and 4% WPI of the left shoulder which combined is 21% WPI.

1. The report of the CT lumbar spine without contrast of 12 December 2019 concludes there is no fracture demonstrated with likely compression of the right L5 nerve root by disc in the right L4/L5 lateral recess.
2. The MRI of the whole spine dated 8 April 2020 finds no evidence of a cervical, thoracic or lumbar spine disc protrusion, neural compromise or spondylitic change.
3. The MRI left shoulder of 15 April 2020 finds there is mild supraspinatus tendinosis, with no rotator cuff tear or labral tear. The MRI right shoulder of the same date finds there is a small partial labral tear and a small para labral cyst posterosuperiorly, a bone contusion of the acromion and spine of the scapula, a mild sprain of the superior acromioclavicular ligament, a minor acromioclavicular (AC) joint effusion, mild supraspinatus tendinosis and a mild post traumatic biceps tenosynovitis.
4. The MRI left foot and left ankle dated 21 April 2020 report finds mild tenosynovitis of the tibialis posterior. The MRI right foot and ankle also finds mild tenosynovitis of the tibialis posterior and a mild deformity of the fifth metatarsal shaft which may relate to an old healed injury.
5. The MRI pelvis, hips and thighs dated 22 April 2020 report is normal. The MRI of the knees report dated 22 April 2020 describes mild bilateral quadriceps tendinosis but is otherwise unremarkable. There was no abnormality found by the MRI right and left lower legs of the same date.

1. The records of the Primary Health Care Medical & Dental Centre to 6 August 2020 include:

(a) the applicant fell down while working as a barber when he slipped and fell, localised pain radiating to the right gluteus muscle, and moderate restriction of back movement on examination on 12 December 2019;

(b) the applicant had a fall and injured his lower back recorded on 17 December 2019;

(c) back pain with right leg sciatica on 28 January 2020;

(d) complaints of pain throughout his spine from the neck to the base on 9 April 2020;

(e) the applicant is still in pain from the back injury on 11 April 2020;

(f) the need for counselling related to the injury at work on 14 April 2020;

(g) the MRI showing disc bulge and right sciatica was discussed on 15 April 2020;

(h) review of the MRI regarding the shoulders and L4/L5 disc bulge was discussed on 20 April 2020;

(i) tendinosis of the foot and ankle was shown on MRI on 28 April 2020;

(j) the referral to Dr Maniam for his back and a few other injuries on 12 May 2020;

(k) the applicant needing referral for counselling on 16 June 2020, and

(l) the applicant's back pain getting worse and requiring analgesic on 13 July 2020.

1. Dr Kaur provided the applicant with medical certificates certifying him as being unable to work for periods between 12 December 2019 and 3 June 2020.
2. Dr Kaur's answers to the insurer's questions on 5 May 2020 include the diagnosis of disc bulge, partial tear right shoulder and tendinitis, and tendinitis in the right leg and knee after slipping on a wet floor and sustaining injury to the lower back, shoulder and ankle and legs. Chiropractor treatment was proposed with Panadeine Forte, Panadol Osteo and Nurofen.
3. Dr Maniam's report of 3 June 2020 to the insurer confirms the applicant developed pain in his lumbar spine and right shoulder as a result of the accident on 12 December 2019. Following his examination Dr Maniam says the applicant exhibits chronic pain syndrome and at this stage his treatment should be addressed by the pain clinic. Dr Maniam could not offer any treatments to alleviate his symptoms. Dr Maniam notes the MRI scans of various body parts return no significant findings.
4. The clinical records of Dr Kaur at Bankstown & Dental Medical Centre as at 15 November 2023 include:

(a) back pain, right shoulder injury and depression recorded on 9 September 2020;

(b) back pain and right shoulder pain, needs physio referral on 22 September 2020;

(c) need for analgesics on 7 October 2020;

(d) poor sleep, getting counselling on 11 November 2020;

(e) weight loss concern on 17 May 2021, and

(f) a medical certificate dated 26 May 2021 advising Dr Kaur had referred the applicant for MRI scans of both shoulders because of his ongoing pain from his injury at work which Dr Kaur had not mentioned in the medical certificates.

1. The clinical records of Dr Maniam from 15 May 2020 include a description of the injury and treatment received, and pain in the right shoulder and lumbar spine into the right leg.
2. The clinical records of Workers Doctors date from 8 October 2020 to 25 September 2025 and record the applicant's symptoms and treatment.
3. Dr Lim's first report on 8 October 2020 notes the applicant has had six or seven sessions with a chiropractor, he has not had any physiotherapy and he was told he could have surgery however it is too much of a risk because of his young age. The applicant is depressed and has lost 14kg.
4. Symptoms include neck pain and stiffness radiating down to bilateral shoulders, pins and needles in bilateral hands, lower back pain radiating down the right leg, right foot pain and depressed, anxious, stressed, trouble sleeping, low mood, low energy, poor concentration, low motivation, loss of confidence and low self-esteem.
5. Dr Lim diagnoses cervical spine strain, bilateral shoulder strain, bilateral supraspinatus tendinosis, right labral tear with biceps tenosynovitis, lumbar spine radiculopathy, bilateral foot mild tenosynovitis and post-traumatic stress disorder. It is likely he will benefit from a multidisciplinary management program.
6. Dr Lim concludes the applicant has suffered neck, shoulder, back and foot injuries from a work incident.
7. Dr Singh, orthopaedic and spine surgeon, reports on 13 October 2020 the applicant needs a nuclear medicine scan to better delineate the pathology in the presence of continuing back symptoms. On 3 November 2020 Dr Singh reports the applicant has not been able to have a nuclear medicine scan because he is needle phobic.
8. On 3 December 2020 Dr Singh reports the applicant has limited lumbar range of motion and describes diffuse back pain, however the MRI of the entire spine fails to show any significant pathology to explain the symptoms of lower back pain, and he refers to the applicant's fear of needles.
9. On 2 November 2020 Dr Soo, orthopaedic surgeon, reports the applicant complains of right sided shoulder pain, no pain to the left shoulder with full range of motion, he has lower back pain radiating to the right buttock and the back of the right knee. Dr Soo recommends non-surgical measures and notes the applicant's significant fear of needles. Potentially hydrotherapy may be of benefit. The right knee pain is likely referred and Dr Soo recommends the applicant see a spinal surgeon for their opinion.
10. On 18 January 2021 Dr Soo provides a report in similar terms noting the applicant has a significant fear of needles and is keen to avoid an injection into the biceps sheath, the right knee pain Dr Soo feels is likely referred pain, and recommends the applicant sees a spinal surgeon for their opinion. The right shoulder injury was sustained at the time of the accident at work and he would benefit from physiotherapy and hydrotherapy to the shoulder.
11. Dr Kumagaya provides a number of reports including on 22 October 2020 in which he diagnoses post-traumatic stress disorder and he recommends ongoing psychological therapy. Mr Carl Nielsen, psychologist, also provides reports which are with the clinical notes.
12. There are a number Certificates of capacity with the clinical notes.

1. The second respondent relies on the s 78 notices of 30 October 2020, 11 January 2021 and 31 March 2025, and the s 287A internal review outcome notice of 10 June 2021.
2. The letter of offer dated 31 March 2025 offers to pay the applicant $34,508.57 for 14% WPI for the accepted lower back and right shoulder injuries.

Dr Anil Nair, independent orthopaedic surgeon

1. Dr Nair reports on 24 March 2020 that the applicant struck his lower back on 12 December 2019 and felt immediate pain in his lower back which now radiates into the right gluteal region and the right thigh. There has been some improvement in his symptoms since the initial injury.
2. Dr Nair notes the applicant has only received chiropractic care and was previously prescribed Nurofen and Panadol Osteo.
3. In summary Dr Nair finds the applicant has clinical and radiological features of a right L4/5 disc herniation consistent with the mechanism of injury described at work on 12 December 2019, for which he recommends physiotherapy or exercise physiology for approximately one month with two sessions per week.
4. An MRI of the lumbosacral spine and consideration of a corticosteroid injection is recommended if the applicant continues to have significant symptoms and if the pathoanatomy of the disc herniation is demonstrated in the recommended MRI.
5. On 20 November 2020 Dr Nair notes the applicant's reported current symptoms of lower back pain radiating to the right lower extremity and pain in the cervical spine, right shoulder region, right hip and both feet.
6. After carrying out a re-assessment of the applicant, Dr Nair reports the symptoms have worsened with pain in multiple regions. Dr Nair is however unable to establish an anatomical cause or diagnosis for his symptoms which he describes as byzantine and not corroborated by medical imaging. Dr Nair was not able to establish an employment related injury and expects the effects of the injury on 12 December 2019 would have resolved by now. No significant pathoanatomy related to the accident was revealed on the MRI of the whole spine of 8 April 2020 from an orthopaedic point of view.

Dr Neville Rowden, independent orthopaedic surgeon

1. Dr Rowden provides a report to the second respondent dated 21 July 2023.
2. Dr Rowden records the applicant has had chiropractic treatment and physiotherapy. His current medication includes melatonin to help him sleep, Gabapentin, Nurofen and Panadol. The applicant's major problem is with his back with burning pain in his left buttock, some numbness in his right leg and pain in his right shoulder and neck.
3. Dr Rowden's opinion is that the applicant presents with a complex story of psychological disturbance following an injury at work with pain out of proportion with his pathology, as identified by MRI scans of the cervical spine, lumbar spine and shoulders. It is unclear why the applicant has not been referred to a pain clinic.
4. Dr Rowden believes there is evidence of trauma to the right shoulder on MRI scan in keeping with a heavy fall. There appears to be no primary injury to his neck based on the MRI scan. Dr Rowden is not able to determine any cause for the lumbar spine symptoms based on the current MRI scans. It is possible that in the fall the applicant sustained an injury to the ligaments around the sacroiliac joint, and sacroiliac instability can be difficult to diagnose and can give quite severe low back pain.
5. Dr Rowden does not believe the applicant's work-related injury has resolved, and he believes the ongoing pain is out of proportion with the pathology as measured on MRI scan. The applicant clearly has deep and significant psychological issues and needs to be assessed in a pain clinic in Dr Rowden's opinion.
6. Dr Rowden assesses the applicant's cervical spine as normal with 0% WPI, the lumbar spine with 6% WPI and 2% for activities of daily living, 0% for the left shoulder, and 8% for the right shoulder, combined to total 14% WPI.
7. In his supplementary file review dated 3 February 2026 Dr Rowden confirms his view that the applicant did not suffer a personal injury to the cervical spine related to his employment. His view is that there is probably some radiated pain from the right shoulder injury felt in the neck, however the cervical spine MRI scan was entirely normal four months after the injury.
8. At the worst Dr Rowden states the applicant may have had some soft tissue bruising in the neck which is highly unlikely to lead to long term significant neck problems in the context of the scan result.
9. Dr Rowden also confirms his view that there is no personal injury to the left shoulder related to the employment, and in his view the mild supraspinatus tendinosis in both shoulders shown on the MRI scans was pre-existing. The applicant fell onto his right shoulder, confirmed on the MRI scan. Over three years later Dr Rowden's examination showed the applicant's left shoulder has full range of motion and no significant symptoms.

Clinical records of Advanced Health Medical Centre

1. The clinical records made by Dr El Azzi include on 6 November 2024 the applicant reports bilateral shoulder, cervical and lumbar pain and post-traumatic stress disorder, and he will need to start psychotherapy and counselling.
2. On 12 December 2024 the applicant has been approved for psychology treatment and

Dr El Azzi refers him to Dr Neil McDonald for counselling/Cognitive Behavioural Therapy for his post-traumatic stress disorder with work injury. 3. Certificates of capacity and a Centrelink medical certificate are included with these records.

1. The second respondent relies on the CT scan of the lumbar spine dated 12 December 2019, the MRI scan of the whole spine dated 8 April 2020 and the MRI scans of the left shoulder and right shoulder dated 15 April 2020 referred to above.

1. The applicant made oral submissions which have been recorded and form part of the Commission's record. These are set out below.
2. After a full review of the evidence and considering the submissions, it will be concluded on the balance of probabilities that the injury that occurred on 12 December 2019 injured not only the applicant's right shoulder and back which is uncontroversial, but also his cervical spine and left shoulder.
3. The applicant was a young man just short of his 23rd birthday when the accident happened. He has at all times since the accident had significant symptoms and there is no adverse comment in any of the material by any of the people who have assessed him about his truthfulness as a witness.
4. Applicant's counsel referred to the applicant's statement in relation to his background, employment and training before he commenced work with the first respondent.
5. On 12 December 2019 the applicant's undisputed evidence is that he was attending to his hairdressing duties at 12.30pm, he walked over to a chair to get scissors and slipped. It is not controversial that a co-worker had made the floor slippery so the applicant's feet went out from under him, and it is reasonable to assume he was taken by complete surprise.
6. The applicant's head, shoulder or shoulders struck the ground and perhaps his back. He finished up on the floor however we cannot be certain whether his back impacted on the floor at the time of his fall or whether he twisted it or not as he went down. We can be certain that this was a really significant fall and there was no opportunity for the applicant to take steps to lessen the trauma or the impact of the fall.
7. The first respondent told the applicant on that day that he should take the day off and rest although by that time he had attempted to return to work to finish the customer he had been looking after, despite being in increasing pain. He then went to see his medical practitioner Dr Sivarajah and he made it clear that his back was extremely sore and it got worse.
8. On 12 December 2019 the applicant tells Dr Sivarajah that the movement of his back is very limited and he hit the back of his head and thoracic region and he moves his neck. One can see the doctor is asking his patient whether there is pain or is at least examining him to see whether there was free movement of the neck, which is consistent the applicant submits with some account or some indication that the applicant was in trouble in terms of his neck as well as other parts of his body.
9. Thereafter the focus of treatment was most certainly on the back, perhaps requiring urgent surgery, however you can see as early as 24 March 2020 Dr Kaur records the account of neck, shoulder and back, old workers compensation injury.
10. The word shoulder is singular, and which shoulder is not identified but there is an important document which assists. The MRI left shoulder is dated 15 April 2020, and it is completely appropriate to conclude that would not have happened if the applicant had not said "I've got problems with my left shoulder". The MRI did not reveal anything except mild supraspinatus tendinosis.
11. This MRI was seen by Dr Bodel and Dr Bodel noted the mild supraspinatus tendinosis before coming to a conclusion that there was a left shoulder strain as well as a right shoulder strain. The applicant relies on that evidence and suggests that a finding of left shoulder injury caused by the impact of the type identified by Dr Bodel can be made. Dr Bodel was of the view there was a 4% impairment of the left shoulder.
12. The insurer quite properly concedes that the right shoulder was injured. The best conclusion of a number available was that there was an impact to the right shoulder caused by a male falling in an unexpected way and impacting the right shoulder sufficiently to show what the radiologist finds on 15 April 2020, accepted by Dr Rowden as work-caused, and there is a small partial linear labral tear.
13. This is a healthy young man and now there is a tear in his shoulder caused by a force, and the biceps labral anchor is intact. The long head of biceps tendon is intact and normally positioned within the bicipital groove. A small bicipital sheath effusion is noted distally in keeping with biceps tenosynovitis, which the applicant submits is not unrelated to the event.
14. There is mild marrow oedema noted in the undersurface of the acromion and the spine of the scapula reflecting a bone contusion, so it is completely reasonable to conclude that that bone contusion was caused by the force of the impact.
15. These are relevant matters for consideration with regard to the cervical spine. Dr Bodel's conclusion is of 5% impairment of the cervical spine as a direct result of this event. Dr Bodel records a history relating to the injury including that the applicant slipped and fell on 12 December 2019 and he landed very heavily on his buttocks.
16. We know from other accounts that do not appear in Dr Bodel's notes that the fall involved striking of the head on what appears to be an unrelenting floor, and likewise the shoulders, and he jarred his neck.
17. The second respondent may make submissions as to what is the nature of the injury. The applicant submits that if you have a worker who has no symptoms in the neck, a young male who has a fall of this nature and thereafter has symptoms for an orthopaedic surgeon to accept that the injury jarred the neck, and then accept as Dr Bodel has done that there has been unrelenting pain in the cervical spine since that time and finds 5% permanent impairment as a result of injury, this is sufficient for you to come to a conclusion as to what it is.
18. At the least you could conclude there has been a cervical strain and that word appears in the medical evidence. Dr Vestol for example on 7 December 2022, and this appears throughout the records, refers to lumbar spine strain, adjustment disorder, cervical spine strain and bilateral shoulder strain.
19. Was the cervical spine subjected to an insult? Yes. Was it an insult that caused an asymptomatic cervical spine now to be symptomatic and to remain so over the years that have passed? The answer is yes, always assuming the veracity of what the applicant has told his doctors.
20. The applicant submits that Dr Rowden's careful report is not inconsistent with a finding that there has been an injury to the cervical spine. On examination Dr Rowden notes the applicant's cervical spine was moderately stiff, and we know there are gradations used of mild, moderate and severe. Dr Rowden is a forensic specialist reporting back to the insurer and he did not say the stiffness in the applicant's cervical spine was feigned or inexplicable, or not genuine, or stemming from some cause, if so he would say so and he did not.
21. When asked for his opinion of the clinical diagnosis of the injuries Dr Rowden says he believes there is evidence of trauma to the right shoulder, consistent with particularly the evidence of bone contusion to the acromion and the spine of the scapula that would be in keeping with a heavy fall, with the finding of a small partial labral tear which may also be consistent with trauma, a mild sprain of the superior acromioclavicular ligament and mild supraspinatus tendinosis.
22. Dr Rowden says he has almost certainly had a secondary effect on his neck. The applicant submits that the only way to read that is the trauma has had a secondary effect on the neck, that is the shoulder has taken the impact and the neck has had a secondary effect, as one would expect when you hear the word jarring from Dr Bodel and the words cervical sprain from the general practitioner.
23. The second respondent may submit the word "which" qualifies the word tendinosis and not the word trauma. If that is so Dr Rowden would be saying the reason the applicant has pain in his neck is because he has an accepted injury to the right shoulder and that is having some sort of secondary effect.
24. The applicant submits it is at least consistent with the trauma having had a secondary effect, that is that the force of the trauma has made its way through to the neck providing a reason for it being symptomatic, and the reason for its stiffness as observed by Dr Rowden.
25. Dr Rowden says there appears to be no primary injury to his neck based on the MRI scan and the MRI scan does not show pathology, however that does not exclude the possibility of a cervical spine injury as we know. If an asymptomatic neck is rendered symptomatic by a strain or an injury then that is an injury, and the applicant says that is manifestly the case here. This is to say no more than there is a non-demonstrative MRI scan and it is obviously a fallacy to make a conclusion that there has been no injury on the MRI.
26. In Dr Rowden's supplementary report his attention is drawn to this however we do not really get an answer. Dr Rowden does not say there is some other basis or probably some radiated pain from the right shoulder felt in the neck and that is probably correct. The applicant concedes of course that if the neck pain is entirely the legacy of the accepted right shoulder injury and that is causing pain in another part of the body the applicant does not succeed on injury.
27. There is clearly more in this case, and the doctor fairly notes at the worst the applicant may have had some soft tissue bruising in the neck and says it is highly unlikely to lead to long term significant neck problems. The applicant submits that it has. The applicant has a very painful neck and he had no problems with his neck prior to 12 December 2019.
28. The applicant submits that you would conclude that the applicant sustained an injury, a jarring injury, at the time of his fall, and the extent of that, the legacy of that injury will be for the Medical Assessor when it comes to the assessment.
29. With regard to the left shoulder the applicant relies on the tendinosis that is shown on the MRI scan. The applicant submits that it appears the primary impact was felt on the right shoulder and that would leave the left shoulder with the effect of the impact, as in Dr Bodel's view impairment directly related to the impact, where there is MRI evidence which clearly forms the basis or supports Dr Bodel's view that there has been a strain to the left shoulder.
30. You would also find an injury to the left shoulder and when remitted to the Medical Assessor that would be included for assessment.

1. The second respondent made oral submissions which have been recorded and form part of the Commission's record. These are set out below.
2. The applicant bears the onus on the balance of probabilities and there is a paucity of evidence of any pathological change especially to the cervical spine.
3. Nguyen v Cosmopolitan Homes[1] requires a level of actual persuasion that there was a sudden pathological change in accordance with Castro v State Transit Authority (NSW)[2] to the cervical spine and also the left shoulder. In this jurisdiction referred pain cannot cause impairment. An injury must be found to be able to refer the body part for assessment.
4. The problem with the applicant's case is there is not a single doctor of a speciality that tells you what the injury is. Even Dr Bodel saying the applicant jarred his neck this is not a diagnosis, that is in the history. Dr Bodel does not make a single diagnosis and there is only a throwaway line that the applicant suffered an injury.
5. The test for causation is one of commonsense as in Kooragang Cement Ltd v Bates[3] however it is reliant on expert evidence. The applicant has not put any expert evidence before the Commission that would support an injury to the cervical spine or the left shoulder.
6. The applicant submits he attended on the general practitioner on 12 December 2019 who assessed the neck and hence that is an indication the applicant had trouble with his neck. Where there is an allegation of a head being struck, the doctor would be negligent not to examine the neck, but what is not noted in that initial consultation is any abnormality of the neck.
7. The applicant notes the referral for scans of his left upper extremity as indicative of an injury and he relies on the diagnosis of a mild tendinosis, however being referred for a scan does not mean ipso facto there is an injury.
8. Dr Bodel and the second respondent's experts make clear there is a significant psychological functional overlay. The applicant complains of pain essentially from his head down to his feet. Is it the case that if the applicant was scanned from his head to his feet that any pathology that is found is caused by this injury? That reasoning is simply not allowed here. You need the expert opinion evidence to allow you to ground a decision as to whether he sustained an injury pursuant to s 4 to the disputed body parts.
9. The applicant's contemporaneous evidence, especially the factual evidence, is quite limited.
10. The applicant's statement was prepared almost six years post injury and it has clearly been prepared by a solicitor to support the case that when he fell the applicant injured every single part of his body.
11. There is expert evidence that the applicant fell on his right side. As a matter of commonsense how does the applicant injure his contralateral side when he fell, when all the impact has come through the right side in order to perform a bone contusion.
12. Referring to the histories given to the doctors at the time, and in particular when the applicant attended the general practitioners, especially the first general practitioner centre Bankstown & Dental Medical Centre, he completed two new client forms. The first on 18 December 2019 lists the type of injury as back/fall slipped disc which the second respondent notes is acknowledged by the applicant. The applicant completes a second form on 22 June 2020 that shows the type of injury as fall/back/shoulder.
13. The applicant did not complain that he injured his neck or his left shoulder on 12 December 2019. He complained of neck pain at a later stage in the clinical records, around three or four months after his injury. Did the applicant sustain a primary injury to his neck, of which there is no diagnosis or pathological evidence, which was nascent for three or four months, or did the accepted right shoulder injury cause tightness and restricted range of motion and symptoms in the neck? Commonsense tells you the latter is the case.
14. The clinical records really show nothing with respect to the left shoulder. He had the MRI scans that show mild tendinosis but there is no reference to whether this was caused by the work injury, and the doctor does not express an opinion at all.
15. There is no doubt the applicant complains of neck (which encompasses more than the cervical spine) pain and symptoms all the way through to his treatment with Workers Doctors and to Advanced Health Medical Centre.
16. The applicant was referred to numerous specialists and one would assume that they would objectively look at the applicant, take his complaints of pain and make a diagnosis accordingly. Although the scans did not identify any pathological change in the cervical spine, he was still referred to an orthopaedic surgeon Dr Maniam.
17. Dr Maniam notes on 22 February 2020 what occurred on 12 December 2019 when the applicant slipped and fell and injured his lower spine, and there was pain in his right shoulder and "R sided T/L spine -> R leg."[4] There is an examination of the right shoulder and the lumbar spine.
18. Dr Maniam provides a report on 3 June 2020 and takes a history of the fall and he says he developed pain in the lumbar spine and right shoulder and consulted his general practitioner and had physiotherapy and chiropractic treatment. The applicant reported pain and symptomatology six months after the injury, well and truly enough time to report significant problems to his treating specialist, and he reported moderate pain in the right shoulder with movement restriction and right sided thoracolumbar pain with radiation into the right lower extremity, both accepted body parts.
19. Dr Maniam goes through the imaging which shows no abnormality apart from the left shoulder and right shoulder, and even the lumbar spine he says does not show abnormality but it is an accepted body part.
20. Dr Maniam is an orthopaedic surgeon, the applicant has not reported these symptoms and the doctor notes there is no radiology supporting any issues in the cervical spine for example. He notes the applicant exhibits a chronic pain syndrome, and it is quite clear the applicant has some sort of functional overlay from the evidence, and he basically says there is nothing he can do for the applicant.
21. If the applicant had significant problems and in particular pathological change in the cervical spine, Dr Maniam would have noted it and treated it. Dr Maniam might have missed it, but the applicant also consulted a neurosurgeon.
22. The applicant goes to Workers Doctors and sees Dr Lim who put every body part in that he possibly can. The first consultation was on 8 October 2020 and it was not a physical examination but a telehealth examination.
23. Dr Soo, an orthopaedic surgeon, sees the applicant on 2 November 2020 and notes ongoing right shoulder and right leg pain following an injury sustained at work, and no issues with respect to the cervical spine or left shoulder. Dr Soo notes no pain in the left shoulder and full range of motion with a focus on the right shoulder. There is no mention of any injury or pathology of the cervical spine or work related injury of the left shoulder.
24. Dr Singh, neurosurgeon, first saw the applicant on 13 October 2020 and records the applicant reported that whilst at work he suffered neck, shoulder, lower back and foot injuries after slipping on a wet surface and falling at work. He describes some pain going to the back of the thigh, and that is it.
25. Dr Singh physically examined the applicant and in his further report of 3 December 2020 describes diffuse back pain. The MRI of the entire spine fails to show any significant pathology that would explain his symptoms involving back pain. He is unable to identify any pathology and he discharges the applicant.
26. There are two orthopaedic surgeons not identifying any pathology or injury or symptomatology for that matter to the cervical spine. Dr Singh identifies no symptomatology or pathology or anything in the cervical spine.
27. So where does the applicant get the support for the injury to the cervical spine or the left shoulder?
28. Dr Bodel says the injuries observed by him are injuries to the areas listed. What are they, what is the pathology, and how was it caused? To say the applicant suffered an injury is just not good enough, he needs to make a diagnosis and say what the pathology is, and he needs to provide an opinion as to how the mechanism of injury has caused that pathology.
29. Dr Bodel does not do that with respect to the cervical spine or the left shoulder. Dr Bodel has only had the investigations with respect to the shoulders, no cervical spine investigations.
30. The second respondent submits there could not be weight placed on this report when the doctor has provided no rationale and no explanation for his opinion.
31. The most contemporaneous report of injury taken by any doctor is by Dr Nair on 24 March 2020. The mechanism of injury is described and that the applicant felt immediate pain in his lower back and radiating into his lower extremity. Why would the doctor not take a history unless it was not given to him? The current symptoms are lower back pain.
32. Dr Nair saw the applicant again and provided a further report of 20 November 2020 where there is an extension of symptoms now including pain in the cervical spine, right shoulder region, right hip region, and there is clearly a delay in reporting this to the doctor.
33. The second respondent's submission is this is indicative of the fact that the applicant had right shoulder symptoms which in turn have affected his neck over time.
34. It is uncontroversial Dr Rowden supports that the applicant fell heavily on his right side and that caused the pathology in his right shoulder. Dr Rowden also identified the applicant's pain is out of proportion with his pathology as identified by MRI scan of the cervical spine, lumbar spine and shoulders, and it is unclear why he has not been referred to a pain clinic. Underlying pain syndrome from a common sense point of view is the reason for the applicant's complaints of significant pain in the cervical spine.
35. Dr Rowden's comments on diagnosis and causation would be in keeping with a heavy fall with the finding of a small partial labral tear which may also be consistent with trauma, a mild sprain of the superior acromioclavicular ligament and mild supraspinatus tendinosis which has almost certainly had a secondary effect on his neck.
36. The second respondent disagrees that there is a primary injury and clearly the secondary effect is the effect of the supraspinatus tendinosis on the neck. Dr Rowden says there appears to be no primary injury to the neck based on the MRI scan, and he says there is no injury to the neck, or the cervical spine for which impairment is claimed.
37. If Dr Rowden says there was no frank injury to the cervical spine, there might be a secondary effect, however a secondary condition is not claimed and it is not assessable in any event under the workers compensation system.
38. Dr Rowden in his supplementary report is asked if he considers the applicant suffered a personal injury to the cervical spine and he answers no, there probably has been some radiated pain from the right shoulder injury felt in the neck. If his primary report was unclear as to what he meant by the secondary effect, this report is quite clarifying.
39. The doctor notes the clear cervical MRI scan and he says at the worst he may have had some soft tissue bruising in the neck. What he does not say is that there is a strain or a jar, and soft tissue bruising is not an injury to the cervical spine.
40. With respect to the shoulders, Dr Rowden says the mild supraspinatus tendinosis was pre-existing. There is no claim for an aggravation injury. Indeed Dr Bodel does not actually say anything with respect to that tendinosis, was it aggravated, was it pre-existing for example. That the condition is pre-existing is not rebutted by any doctor at all. Dr Rowden provides the only expert opinion on the left shoulder that has a diagnosis and a cause put in there. The applicant fell on his right shoulder confirmed by the MRI showing the contusion and obviously there is the fact he has full range of motion, but that is a matter for a Medical Assessor.
41. Contemporaneously the applicant did not complain of cervical spine problems even when he completed the new client information sheet for his general practitioner. He did not complain contemporaneously to Dr Nair, who clearly does not support the applicant.
42. There is no pathology, no sudden pathological change in the cervical spine, and no expert opinion to say even if there was pathological change it was caused by the subject fall. Dr Bodel says the applicant suffered an injury. This is not sufficient to prove causation.. There could be no feeling of actual persuasion on the balance of probabilities that the medical evidence relied on by the applicant supports a finding of pathology or sudden pathological change. The applicant has simply not come anywhere near the burden of his proof in proving the disputed body parts.

1. Applicant's counsel, following a conference with the applicant, submits the workers compensation first attendance forms do not have the applicant's signature on them anywhere and they are not of any forensic assistance in the absence of being adopted by the worker.
2. The other submission is that Dr Maniam's reports do not indicate the length of time that he spent with the patient and you would not put weight on any absences of reports of pain in certain areas, in particular the neck.
3. That chimes in with the applicant's primary submission which is the complaints with regard to the neck, not just the neck but the spine, go back to March 2020 which is completely consistent with the applicant's account of having a significant problem with his back with Dr Kaur concerned about the localised nature of the pain in the back and the need for the back to be the subject of urgent attention. You can see from the reports from December 2019 the concern that the identity of the symptoms, including the radiation into the gluteus and the localised nature of the pain, warranted urgent attention which was done, and it is not at all inconsistent with the history of the worker of having neck pain that dated from and never before the date of this fall. It is consistent that that pain would then be recorded by Dr Kaur.
4. When you proceed on from that report you can see the reference to pain throughout the spine from the neck to the base, and that this time that is Dr Hussain, a different doctor. Having pain throughout his spine from the neck to the base is recorded on 9 April 2020. This is not a case of a recent invention.
5. The applicant refers to Nguyen where Justice McDougall comments that the burden of proof is not satisfied merely by evidence that it is possible that the causal relationship exists. The inference of causation may be drawn from all the evidence in the case, including expert evidence as to the possibility that the causal relationship exists. That passage was referred to by Deputy President Snell in Hendrix v Accuro Homecare Pty Limited,[5] that it is not necessary that the reports of any single medical witness in the worker's case be capable of fully proving her case on causation, and he then refers to Justice McDougall and said the inference of causation may be drawn from all of the evidence in the case including expert evidence as to the possibility that the causal relationship exists.
6. Dr Bodel tells you that there is 5% impairment of the cervical spine as a result of the jarring which he identifies.
7. The second respondent's submissions ignore the clear evidence of a heavy fall by all accounts causing an accepted injury to the right shoulder with a worker who also struck his head and he makes no complaint about his head now, but it would be a surprise the applicant submits that this as an expert Tribunal would not make a common sense determination about what might have happened, when there is evidence of a strain and evidence of jarring.
8. It would be very surprising if an injury like that did not cause an injury the nature of which, the extent of which, can be assessed by a Medical Assessor for the cervical spine.
9. It would be astonishing if he had avoided injury in the applicant's submission, and on the balance of probabilities and taking into account the challenge for the Commission is looking at what is more likely to have happened than not on the balance of probabilities, the Commission would be comfortably satisfied there was an injury, the extent of which will be a matter for assessment by the Medical Assessor.
10. The applicant presses the same submission with respect to the left shoulder, although the applicant acknowledges there is force in the second respondent's submission that the right shoulder took the burden, so the inference you would have to draw would be that there was a trauma through to the left shoulder, perhaps a more challenging task for the applicant than establishing injury to the cervical spine.

Did the applicant sustain a cervical spine injury and/or a left shoulder injury on 12 December 2019

1. The second respondent accepts the applicant sustained injuries to his right shoulder and lumbar spine as a result of the fall at work on 12 December 2019.
2. The applicant has the onus to prove on the balance of probabilities that he also sustained a cervical spine injury and a left shoulder injury that day on the basis of a commonsense evaluation of the causal chain.[6]
3. The relevant principles to discharge that onus were discussed in Nguyen,[7] including that the Commission must feel actual persuasion of the occurrence or existence of a fact that is found, and where the probability of it having occurred is less than it not having occurred, it is to be treated as not having occurred.[8]
4. 'Injury' in s 4(a) of the 1987 Act means a personal injury arising out of or in the course of employment.
5. What is required to constitute a personal 'injury' is "a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state."[9] While suddenness is not necessary for there to be an injury, it may be relevant in distinguishing a physiological change from the natural progression of an underlying disease.[10]
6. Section 9A of the 1987 Act states that no compensation is payable under the Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
7. The weight of evidence supports a finding that the applicant sustained cervical spine and left shoulder injuries on 12 December 2019 in accordance with s 4(a) and s 9A of the 1987 Act in addition to the accepted lumbar spine and right shoulder injuries.
8. The applicant's undisputed statement evidence is that he slipped and fell backwards on 12 December 2019 hitting his head, neck, both shoulders, lower back and right leg as he landed. He started to feel worse after the fall that day with jarring pains in his neck, both shoulders, lower back and right leg. His back pain was his main concern, and the clinical records of Primary Health Care Medical & Dental Centre indicate the applicant's back was the main area initially investigated.
9. I accept as the applicant submits that his fall on 12 December 2019 was significant, supported by the clinical records and medical evidence including the finding of a bone contusion on the right shoulder.
10. Dr Sivarajah records the applicant hit the back of his head and thoracic region, and he examines the applicant's lumbar spine, neck and thoracic region on 12 December 2019.
11. I accept the submission that where there is a head injury a doctor could be expected to examine the neck, however the applicant's statement evidence is that he experienced neck pain on 12 December 2019 that persisted and worsened.
12. In early 2020 the applicant says he started to notice increasing pain in his neck and shoulders and Dr Kaur referred him for an MRI of his whole spine and both shoulders.
13. On 24 March 2020 Dr Kaur records a history of "neck shoulder back old Wc injury needs MRI".[11] The MRI of the whole spine report of 8 April 2020 shows no evidence of cervical disc protrusion, neural compromise or spondylitic change.
14. A clinical record referring to pain throughout the applicant's spine from the neck to the base is made by Dr Hussain on 9 April 2020, and he notes the MRI does not show any significant abnormality.
15. The second respondent submits there is a paucity of evidence of pathological change to the cervical spine. I accept the applicant's submission however that a non-demonstrative MRI scan does not of itself result in a conclusion that no injury has occurred. The whole of the evidence must be considered.
16. Dr Lim reports symptoms including neck pain and stiffness radiating down to bilateral shoulders on 8 October 2020, diagnoses cervical spine strain and bilateral shoulder strain, and concludes the applicant has suffered neck, shoulder, back and foot injuries from the work incident. Certificates of capacity from that time include cervical spine strain and bilateral shoulder strain.
17. Dr Nair records symptoms including pain in the applicant's neck on 20 November 2020.
18. Dr Bodel diagnoses the applicant with cervical spine strain and bilateral shoulder strain injuries, and assesses impairment of the applicant's cervical spine and left shoulder.
19. I do not agree with the second respondent's submission that Dr Bodel does not say what the cervical injury is and that he makes no diagnosis. Dr Bodel identifies the factors and his reasoning process sufficiently in forming his opinion, which enables the Commission to evaluate his opinion.[12]
20. Dr Bodel in answer to a question put to him confirms the applicant has sustained injuries in the course of his employment of cervical spine strain, bilateral shoulder strain, bilateral supraspinatus tendinosis, right labral tear with biceps tenosynovitis, lumbar spine radiculopathy and bilateral foot mild tenosynovitis, although some of those issues have settled. Dr Bodel is satisfied there is rateable impairment in the neck and the left shoulder arising from the effects of the fall that occurred at work.
21. The second respondent notes Dr Bodel does not review or refer to the whole spine MRI of 8 April 2020. Dr Bodel reaches his opinion having taken a detailed history and following his examination of the applicant. In the circumstances and despite the absence of reference to this MRI I accept Dr Bodel draws on his entire body of experience and knowledge to form his opinion,[13] which I accept.
22. The applicant submits that Dr Rowden's careful report is not inconsistent with a finding that the applicant sustained a cervical spine injury on 12 December 2019. Dr Rowden accepts at the worst the applicant may have had some soft tissue bruising in the neck on that day.
23. Dr Rowden notes the heavy nature of the fall and finds the applicant's cervical spine is moderately stiff, although in his view the neck stiffness results from the accepted right shoulder injury.
24. The applicant concedes if there is a finding made that the applicant's neck pain is referred from his accepted right shoulder injury he fails to establish injury.
25. I do not accept the second respondent's submission however that the applicant's neck condition results from pain radiating from his right shoulder.
26. In July 2023 Dr Rowden found on examination the applicant's neck was moderately stiff with approximately 50% movement only, with most of the tenderness over the right side of the neck. The traumatic injury to the right shoulder "has almost certainly"[14] had a secondary effect on his neck and there appears to be no primary injury to his neck based on the MRI scan in his opinion.
27. Dr Rowden's opinion on 3 February 2026 is that the applicant did not suffer a personal injury to the cervical spine and "[t]here probably has been some radiated pain from the right shoulder injury felt in the neck."[15] I accept as the respondent submits Dr Rowden has clarified his opinion in this respect.
28. Dr Rowden's opinion is not consistent with the applicant's uncontested statement evidence of a jarring pain in his neck on 12 December 2019 (a history also recorded by Dr Bodel), Dr Nair's reference to pain in the applicant's cervical spine not being related to his right shoulder injury, and Dr Lim's reference to neck pain and stiffness radiating down to bilateral shoulders.
29. I accept the applicant's submission that Dr Rowden's opinion that any soft tissue bruising in the neck would be highly unlikely to lead to long term significant neck problems is difficult to accept given the applicant's ongoing complaint of neck pain, and in the absence of a persuasive alternative explanation for that pain.
30. I place less weight on Dr Rowden's opinion as a result.
31. Dr Kaur refers the applicant to Dr Maniam in relation to his back and right shoulder injuries and Dr Maniam only examines the applicant's back and right shoulder in this context. Dr Maniam's lack of reference to history or symptoms with respect to the applicant's cervical spine and left shoulder is understandable.
32. Dr Soo reports on the applicant's right shoulder condition following the MRI report, and Dr Singh reports on the applicant's lumbar spine condition which was initially the main focus of the applicant's concern. The absence of reference by either treating specialist to history or symptoms with respect to the applicant's cervical spine and left shoulder is not necessarily fatal to establishing those as injuries. given the focus was on his lumbar spine injury and the tear n his right shoulder shown on the MRI.
33. I accept the applicant's submission that there is no evidence the applicant had any neck symptoms prior to 12 December 2019, he had a heavy fall on 12 December 2019 and unrelenting symptoms follow. Dr Bodel's expert opinion is that the applicant sustained a cervical spine injury on that day.
34. I have also formed the view on a consideration of all of the evidence that the applicant sustained a left shoulder injury on 12 December 2019, while acknowledging as the applicant submits that there is less evidence in relation to this injury.
35. The applicant's undisputed evidence is that he injured his right and left shoulders on 12 December 2019.
36. Dr Kaur refers the applicant for MRI scans of both shoulders on 15 April 2020. There is mild supraspinatus tendinosis shown in the left shoulder.
37. On 26 May 2021 Dr Kaur provides a medical certificate that states he refers the applicant for MRI scans of both shoulders (presumably in April 2020) because of his ongoing pain from his injury at work on 12 December 2019. Given the results of the right shoulder MRI scans treatment focuses on that shoulder.
38. While the left shoulder MRI of 15 April 2020 does not disclose any significant pathology, I have also considered the medical evidence, the opinions of Dr Bodel and Dr Rowden who refer to a significant psychological disturbance, and of Dr Maniam that the applicant exhibits chronic pain syndrome that should be addressed by a pain clinic, which provide a background to the applicant's complaint of continuing left shoulder pain.
39. Dr Bodel and Dr Lim's opinions are that the applicant suffered a left shoulder strain injury on 12 December 2019. Dr Bodel records a current complaint of pain and stiffness in the neck and both shoulders, and on examination finds restricted range of left and right shoulder movement and mild impingement.
40. Dr Rowden's opinion is that there are mild supraspinatus degenerative changes, there is no range of movement restriction and no personal injury to the left shoulder, and he assesses 0% WPI of the left shoulder.
41. The second respondent submits that Dr Rowden's opinion is the left shoulder condition is pre-existing, Dr Bodel does not say whether the left shoulder condition was aggravated or pre-existing, and the condition being pre-existing is not rebutted by any doctor.
42. There is no evidence before the Commission that the applicant's left shoulder condition is pre-existing or of left shoulder symptoms or restrictions prior to 12 December 2019.
43. Dr Rowden in his report of 21 July 2023 records the applicant denies having any injuries or symptoms before his injury and his restrictions do not relate to pre-existing or non-compensable conditions.
44. I do not accept the second respondent's submission that Dr Rowden is the only expert who provides a diagnosis and cause of the left shoulder condition. Dr Bodel's opinion is that the applicant sustained bilateral shoulder strain as a result of the injury.
45. Dr Maniam examines the applicant's lumbar spine and right shoulder. Dr Singh examines the applicant's back. Dr Nair does not refer to left shoulder symptoms or pain. Dr Soo on 2 November 2020 records the applicant has no left shoulder pain and on examination finds full range of motion.
46. I accept the applicant's submission however that the heavy force of the applicant's fall on 12 December 2019, even were the applicant's right shoulder to have taken the burden of the fall, likely caused trauma to his left shoulder. This accords with the applicant's statement evidence.
47. The two new client forms that refer to injuries to the back and then to the back and shoulder are not signed or adopted by the applicant and I accept these carry less weight as a result.
48. The inference of causation may be drawn from all the evidence in the case, including expert evidence as to the possibility that the causal relationship exists.[16]
49. On a common sense evaluation of all the evidence including the expert evidence of Dr Bodel which I prefer, I find the applicant sustained cervical spine and left shoulder injuries as a result of the injury on 12 December 2019.
50. I am persuaded on the balance of probabilities the applicant experienced a sudden physiological change in his cervical spine and his left shoulder as a result of the fall on 12 December 2019 in addition to the accepted lumbar spine and right shoulder injuries.

1. The applicant sustained cervical spine and left shoulder injuries on 12 December 2019 in accordance with s4 and s 9A of the 1987 Act.
2. This matter is to be remitted to the President for referral to a Medical Assessor for assessment of WPI of the applicant's lumbar spine, cervical spine and left upper extremity (shoulder), noting the applicant's WPI of the right upper extremity (shoulder) is agreed at 8%.

[1] [2008] NSWCA 246 (Nguyen).

[2] [2000] NSWCC 12; (2000) 19 NSWCCR 496 (Castro).

[3] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).

[5] [2023] NSWPICPD 48.

[6] Kooragang Cement Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.

[7] [2008] NSWCA 246 (Nguyen).

[9] Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47.

[10] Ky v Blue Leaf Food Group Pty Ltd [2016] NSWWCCPD 55 at [55].

[12] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.

[13] Australian Security and Investments Commission v Rich [2005] NSWCA 152 at [170].

[16] Nguyen at [61], Hendrix v Accuro Homecare Pty Limited [2023] NSWPICPD 48 at [77].