Abraham v St Gabriel's School

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Abraham v St Gabriel's School [2025] NSWPIC 397
APPLICANT:	Susan Abraham
RESPONDENT:	St Gabriel's School
MEMBER:	Cameron Burge
DATE OF DECISION:	12 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; medical expenses; claim for costs of and incidental to medically necessary neck surgery; whether the applicant suffered a cervical spine injury in an accepted injurious event; whether the injury gave rise to the need for surgery; Held – applicant has the onus of proving on a commonsense basis that she suffered a neck injury; Kooragang Cement Pty Ltd v Bates applied; caution must be taken in relying on the absence of the recording of neck issues by the applicant’s treating practitioners for several weeks as evidence sufficient to obviate her evidence of alleged post-injury symptoms; Mason v Demasi and Anor; no need for corroboration for an applicant in a civil case to establish the presence of an injury; Baker v Southern Metropolitan Cemeteries Trust followed; applicant suffered a cervical spine injury in the nature of an aggravation to underlying but previously asymptomatic pathology; applicant’s neck injury has made a material contribution to the requirement for her surgery; the proposed surgery is reasonably necessary as a result of the applicant’s injury; respondent is to pay the costs of and incidental to the surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her cervical spine in the course of her employment with the respondent on 27 May 2021. 2. The proposed C5/C6 anterior cervical decompression and fusion proposed by Dr Kanawati is reasonably necessary as a result of the applicant’s injury. 3. The respondent is to pay the costs of and incidental to the proposed surgery. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

On 27 May 2021, Susan Abraham (the applicant) was injured in the course of her employment as a learning support officer with the respondent, St Gabriel’s School, when a student ran towards her and she instinctively put out her arm, which the student struck, causing an accepted injury to the right shoulder.
Additionally, the applicant claims she suffered injury to her cervical spine, which is disputed by the respondent. The applicant seeks payment by the respondent for the costs of and incidental to a proposed C5/C6 cervical anterior discectomy and fusion proposed by her treating surgeon, Dr Kanawati.
There is no issue the proposed surgery is reasonably necessary. However, the respondent disputes whether the need for the surgery arises as a result of a work injury, as it alleges the applicant did not suffer a neck injury in the incident at issue.

ISSUES FOR DETERMINATION

The only issue for determination is whether the applicant suffered a cervical spine injury which has brought about the need for the proposed surgery.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing before me on 10 July 2025. At the hearing, the applicant was represented by Mr McEnaney. The respondent was represented by Mr Van Der Hout.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application), and
(b) Reply and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a neck injury

There is no issue the applicant has a serious neck condition which warrants surgery. The question before the Commission is whether that condition was brought about by a work injury.
The question at hand is one of causation, and the applicant carries the onus of proving her cervical spine issues are work related. In the workers’ compensation context, the appropriate test of causation in matters such as the present was set out by Kirby P (as he then was) Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). In determining the cause of the applicant’s condition, the Commission must evaluate the entirety of the evidence, both lay and expert, on a commonsense basis to determine whether it was a work-related injury.
Additionally, to establish the presence of an injury, the worker must demonstrate the presence of a “sudden or identifiable pathological change”: Castro v State Transit Authority (NSW) [2000] NSWCC 12. In that matter, a temporary physiological change in the body’s functioning, namely atrial fibrillation, without pathological change, did not constitute injury.
In this matter, there is no question the applicant has suffered pathological change in her cervical spine. The question for determination is what caused this change. For its part, the respondent notes there were no complaints of injury to the cervical spine contained within the clinical records in the aftermath of the injurious event at issue. Rather, the respondent notes there was no complaint relating to the cervical spine from the date of injury on 27 May 2021 until 21 July 2021, when the applicant’s general practitioner (GP) noted the applicant was suffering radiation of pain down her arm and along the clavicle, associated with neck pain and dysesthesia in her fingers.
That clinical injury arose after the applicant had initially been provided with treatment exclusively to her right shoulder. That treatment included medication, radiological investigation, physiotherapy treatment and consultation with orthopaedic surgeon Dr Piper.
In her statement, the applicant noted her first visit to a physiotherapist was on 7 June 2021, and through the course of their treatment she received strapping on her shoulder and gentle exercises. The applicant states that treatment was unhelpful and aggravated her pain. She continued with physiotherapy twice per week until approximately the end of July 2021.
An MRI of the applicant’s right shoulder undertaken on 14 July 2021 revealed tendinosis, bursitis and mild fluid distention in the shoulder.
On 21 July 2021, as noted, the applicant consulted surgeon Dr Piper complaining of neck and right shoulder symptoms. Relevantly, Dr Piper administered a steroid injection to the applicant’s right shoulder on 3 August 2021 which provided her with no relief from her symptoms.
From August 2021, the applicant consulted a new physiotherapist once per week. Despite their treatment varying from the previous modalities and including deep massage therapy together with hydrotherapy, the applicant’s pain in her right shoulder did not resolve.
On 7 September 2021, the applicant received another injection to her right shoulder after returning to Dr Piper complaining of pain in her neck. She states that injection temporarily reduced her pain and Dr Piper then referred her for an MRI of her cervical spine which she underwent on 8 September 2021. That scan revealed disc bulges, degenerative changes and narrowing of the foramen in the applicant’s neck.
As Mr McEnaney noted, the absence of complaint in clinical records is not fatal to a claim of injury. Caution must always be taken in relying on the history recorded by treating medical practitioners: see Mason v Demasi and Anor [2009] NSWCA 227 (31 July 2009), wherein which Basten JA noted where a tribunal of fact is asked to discount an applicant’s testimony on the basis of apparently inconsistent histories provided to treating practitioners, caution must be taken. His Honour referred to the decision in Container Terminals Australia v Huseyin [2008] NSWCA 320, and noted caution should be exercised when examining apparent inconsistencies for the following reasons, above among others:
“(a)    The health professional who took the history has not been cross-examined about:
i.The circumstances of the consultation;
ii.The manner in which the history was obtained;
iii.The period of time devoted to that exercise;
iv.The accuracy of the recording.
(b)     The fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceeding;
(c)     The record did not identify any questions which may have elucidated replies;
(d)     The record is likely to be a summary prepared by the health professional, rather than a verbatim recording; and
(e)     A range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
Even were the usual caution regarding treating records set aside, in my view the circumstances of this case are not such as to render the applicant’s histories given to her treating practitioners as unreliable or suggestive of the absence of a neck injury.
This is because it is not an uncommon phenomenon for treating practitioners to focus on one injured body system following an accident, only to discover another was in fact the cause of the majority of the patient’s symptoms. This is particularly the case where the body systems at issue are adjacent, such as the cervical spine and the shoulder.
In Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, Deputy President Roche made it clear that the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered a psychological injury. The Deputy President noted:
“80. It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor an Arbitrator is entitled to take into account in considering whether to accept a worker’s assertion that certain events occurred and that they affected the worker in a certain way.
81. However, on its own, the absence of such a complaint to Mr Baker’s general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence not referred to by the Arbitrator, that Mr Baker had complained to the respondent’s representatives of bullying and harassment from as early as July 2012.
82. Whether Mr Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work, … and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.
83. The Arbitrator’s conclusion, on this issue, really amounts to a finding that he did not accept Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA199 at [86]) and, to the extent that the Arbitrator thought that such corroboration was necessary, he erred.
84. Moreover, as Beazley JA (as her Honour then was) (Campbell and Macfarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness.”
In the present matter, by approximately seven weeks after the incident at issue, it became apparent to certain of the applicant’s treating practitioners that the genesis of her symptoms arose in her cervical spine rather than her shoulder.
The respondent relied upon a number of MRI reports which said the applicant’s cervical spine was pathologically normal until sometime after the injurious incident at issue. However, the doctors who recorded those findings as normal did not have the benefit of seeing the applicant’s scans and relied only on the reporting of them by the radiologist who carried them out.
By contrast, the applicant’s treating surgeon, Dr Kanawati, had the benefit of seeing the scans themselves and described the pathology within them as consistent with the applicant’s complaints and showing compression of the disc spaces.
In a report to Dr Piper dated 10 May 2024, Dr Kanawati recorded the applicant’s history as follows:
“A Year 7 student struck her right outstretched arm and she started to complain of shoulder pain at that stage. She responded successfully to a recent shoulder surgery and her pain partially settled but she still has ongoing neck pain and neuropathic pain in her right upper limb. The pain certainly seems to be in a C6 dermatomal distribution with pain and pins and needles running down her shoulder, arm, forearm and right thumb. She does have pins and needles in the same distribution as the pain and therefore the pattern definitely sounds neuropathic. She does not particularly describe any weakness or any other red flag symptoms. She does complain of neck pain which is mechanical and troubles her during the day and night. She has had several cortisone injections for her shoulder but none into her neck. I believe that she is due to have a trial of Botox injections for her shoulder for possible scapular dyskinesis.”
When referring to the applicant’s MRI, Dr Kanawati said:
“Susan has had a recent cervical spine MRI scan which reveals quite focal C5/C6 spondylosis and bilateral foraminal stenosis at this level which is definitely consistent with her symptoms of C6 radiculopathy. I believe that she has recently had a nerve conduction study which was normal with no signs of carpal tunnel syndrome.”
Mr Van der Hout for the respondent delivered thorough submissions concerning the absence of initial history of complaint regarding the cervical spine. He noted that the applicant’s conclusive diagnosis of neck issues came a long time after the injury at issue and submitted the evidence did not enable the applicant to discharge her onus of proving her neck had been injured in the incident of issue.
However, whilst the definitive diagnosis of neck problems came late, the applicant’s symptoms did not. She records in her statement that since the accident she has had neck problems and issues with pain radiating down her shoulder into her arm and fingers. Those complaints have been relatively consistent since the accident.
As already noted, it was only a question of seven to eight weeks post-injury that the applicant’s issues in relation to her cervical spine were noted by her treating by orthopaedic surgeon, Dr Piper.
In her statement, the applicant provides a detailed history of the various treatment modalities which she has undergone since the injury. I do not propose to repeat them in these reasons; however, they included multiple shoulder surgeries, injections to her right shoulder and physical therapies. According to the applicant, whom I accept, each of these treatments provided her with limited relief. In particular, the injections into the applicant’s shoulder were of very little use in resolving her symptoms.
However, on 10 May 2024, Dr Kanawati referred the applicant for a C5/6 cortisone injection which was undertaken on 26 June 2024. According to the applicant, unlike the injections which had been undertaken to her shoulder, the procedure was helpful as it provided resolution of her finger and arm pain. Her pain then began returning in July 2024.
As Dr Kanawati and the applicant’s IME, Dr Bodel have noted, the applicant’s relief from the C5/6 cortisone injection is strongly suggestive of this spinal segment being the cause of her ongoing pain and tingling in her arm.
On balance, I prefer those views to that of the respondent’s IME, Dr Haig, whose opinion was the applicant’s cervical spine symptoms are degenerative and congenital in nature. With respect to Dr Haig, that opinion does not take into account the persistent and consistent symptoms suffered by the applicant since the time of the injury, including pain radiating from her neck through her shoulder, arm and into her hand.
The fact the applicant’s symptoms were eased by conservative treatment to her cervical spine after both conservative and surgical treatment of her right shoulder had failed to provide her with relief is, in my view, strongly indicative of the seat of the applicant’s issues since the injury at issue being her cervical spine. I reiterate, the applicant had had such symptoms from almost immediately following her injury.
On 13 September 2024, the applicant underwent a nerve conduction study of her right upper limb which was within normal limits. On 29 October 2024, she attended an MRI of her right shoulder which showed signs of muscle repair and normality. Despite these findings, the applicant’s shoulder and neck pain had been worsening, and had been present since shortly after the injury at issue.
On balance, I am of the view the applicant suffered an injury to her cervical spine in the incident at issue.
Indeed, when one examines the GP’s clinical records, there are references as early as
6 July 2021 to the nature of the applicant’s pain being radiation into her right arm together with “C pain”. On 9 July 2021, the applicant was recorded as having right shoulder pain radiating to her right arm which was described as “intense burning pain”. Those entries are consistent with the presence of cervical pathology and are made approximately five weeks post-injury against a background of ongoing symptomology since the date of injury.
The clinical entries also demonstrate the applicant’s GP was focused on her right shoulder as the source of her problems. Whilst there was no question the applicant suffered a right shoulder injury, what is apparent is that her persistent symptoms of radiating pain down her right arm were caused by neck pathology rather than that in the right shoulder.
In my view, the totality of the lay and medical evidence overwhelmingly supports a finding of injury to the cervical spine in the event of the issue.
The respondent’s own IME, Dr Haig, in a report dated 24 February 2025 also noted the seat of the applicant’s problems was her cervical spine, in light of the injection to the right side of the neck giving her complete relief of the neck pain and significant improvement in the right upper extremity pain. As Dr Haig noted:
“I had expressed earlier doubt about the neck as being the cause of the pain travelling out of the right side, for the radiology had suggested that the exit foraminal stenosis was on the left side, not the right. I am now happy to change that opinion for she was convincing in her statement that that injection significantly helped her pain. Thus, I believe the pain in the neck and right upper extremity is radicular origin.”
Dr Haig remained of the view that the 2021 work incident did not contribute to the applicant’s cervical spine condition, as she had pre-existing cervical spondylosis and the right upper extremity symptoms did not appear “until sometime later”. Dr Haig also noted the MRI of the cervical spine on 8 September 2021 referred to degenerative changes at the C5/C6 level which were pre-existing “albeit in asymptomatic form, at the time of the work-related incident”.

In my view, those passages from Dr Haig are instructive. There is no doubt the applicant had some pre-existing pathology in her neck. However, as Dr Haig noted, that pathology was asymptomatic. In my view, it was rendered symptomatic by the injury at issue. That is, the frank incident on 27 May 2021 was the main contributing factor to the previously asymptomatic pathology in the applicant’s cervical spine being rendered symptomatic and requiring treatment. That finding satisfies the requirement of injury in the nature of aggravation set out in s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
In relation to whether the applicant’s cervical spine injury, which I have found was work-related, has brought about the need for surgery, it is settled law an injury need only make a material contribution to the requirement for surgery. This is plainly the case in this incident, because as Dr Haig noted, the applicant was asymptomatic before the injury at issue.
It is symptomology, not pathology, which necessitates treatment. A worker may have abnormal pathology in a body system which is asymptomatic until it is rendered symptomatic by a traumatic injurious event, such as to render treatment both necessary and compensable. In my view, this is the case in the present matter.
I therefore find the applicant suffered an injury to her cervical spine in the course of her employment with the respondent on 27 May 2021 by way of aggravation to underlying pathology to that body system. The applicant’s employment was the main contributing factor to the aggravation of that pathology, and led to the requirement for the proposed surgery which the parties accept is medically necessary.
Accordingly, the respondent will be ordered to pay the costs of and incidental to the proposed surgery.

SUMMARY

For these reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2025] NSWPIC 397

12 August 2025