Allan v Ultro Recruitment (NSW) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Allan v Ultro Recruitment (NSW) Pty Ltd [2023] NSWPIC 60
APPLICANT:	David Allan
RESPONDENT:	Ultro Recruitment (NSW) Pty Ltd
Member:	Paul Sweeney
DATE OF DECISION:	16 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Worker alleges the need for cervical surgery recommended in 2022 results from an injury on 31 July 2018; employer disputes injury and causal nexus between the injury and need for surgery; absence of recorded complaint of neck pain in clinical record or medical histories; consideration of reliability of worker’s evidence in the context of the clinical notes and medical opinion evidence; Held – award for worker for the cost of proposed treatment to the cervical spine.
determinations made:	The Commission determines: 1. The applicant suffered injury to his right wrist and to his cervical spine namely an exacerbation of a pre-existing degenerative condition of the spine on 31 July 2018. 2. As a result of that injury it is reasonably necessary that the applicant undergo the treatment proposed by Dr Laban in recommendations 1-3 of his report of 23 May 2022. 3. There is no evidence that the investigations of the applicant’s brain or lumbar spine result from the injury. 4. Order the respondent pay the costs of and incidental to the treatment in paragraph 2 above pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

On 31 July 2018, David Allan (the applicant) suffered injury in the course of his employment with Ultro Recruitment (NSW) Pty Ltd (the respondent). While he was performing concrete work, he tripped and fell on a piece of steel which was being used to reinforce concrete at a concrete bed next to his workstation.
By his statement, the applicant says that he felt “immediate pain in my right wrist and my neck” and was unable to continue work. He went home to rest “hoping my neck and wrist pain would settle.”
The applicant says that intermittent neck pain continued, however, his medical treatment was exclusively directed at his right forearm. He came under the care of two hand specialists, Dr Bernard Schick and Dr Mark Nabarro both of whom operated on his right wrist. He was also referred to two pain specialist, Dr Yu and Dr Chow.
By his statement, the applicant says that over time his right wrist improved but by April 2022 his neck pain had significantly worsened. In April 2022, he was referred for an MRI scan of the neck. He was informed by Dr Chow that the scan demonstrated cervical cord compression. He was referred to a neurosurgeon, Dr James Laban. Dr Laban recommended a C5/6 and C6/7 anterior cervical discectomy and fusion and a right C3/4 foraminotomy.
The respondent’s insurer, EML, denies that the applicant suffered an injury to his neck arising out of his employment. In the alternative, it disputes that the need for surgery is reasonably necessary as a result of that injury.
The nature of the respondent’s defence is made clear by the following paragraphs from the insurer’s s 78 Notice dated 12 July 2022:
“The first reference to you sustaining a neck injury or differing (suffering) from neck symptoms is contained in a medical report of Dr Nabarro dated 10 August 2021 approximately 3 years after the work incident on 31 July 2018.
While you have seen many medical practitioners, we have no record of you having reported sustaining an injury to your neck prior to 10 August 2021”.
The insurer then set out the dates of consultations with several medical practitioners over the years and also reviewed the Certificates of Capacity issued by the applicant’s general practitioner (GP) and concluded that there was insufficient evidence for it to accept that the applicant suffered injury to the neck on 31 July 2021.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

By these proceedings, the applicant claims the cost of the surgery proposed by Dr Laban pursuant to s 60(5) of the Workers Compensation Act 1987 (1987 Act).
When the matter came on for conciliation and arbitration on 7 February 2023, Mr Young, of counsel, appeared for the applicant and Mr Rickard, of counsel, appeared for the respondent. I was informed by counsel that they were unable to reach agreement on the threshold issue of whether the applicant suffered injury to his neck. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to resolve the matter both at the preliminary conference and during conciliation but were unable to fashion a mutually acceptable resolution.

Evidence

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

Submissions

The submissions of the parties are recorded and I do not propose to reiterate each of the arguments put by counsel in these short reasons. Both counsel referred to the patient medical record. Mr Rickard submitted that there was no reference to neck injury or neck pain in the long clinical record until August 2021. In those circumstances it was likely that the evidence of the applicant concerning a neck injury was a reconstruction. While clinical notes and medical histories were to be treated with caution, the absence of a note supportive of neck injury in the patient health care record of multiple doctors was fatal to the applicant’s case.
Mr Young, of course, relied upon the statement evidence of his client and the evidence of Ms Pawlikowski, a solicitor, who took “an enquiry” from the applicant on 11 February 2019 and who had recorded that he had suffered injuries to the following body parts:
·        right hand;
·        consequential left hand, and
·        cervical spine.
Mr Young argued that the description of the incident on 31 July 2018 was consistent with an injury to the applicant’s neck. He also addressed the content of the clinical record. He submitted, that the first reference to neck pain in the available clinical record was in April 2021 Mr Young emphasised the fact that Dr Sheehy, a neurosurgeon qualified by the respondent, had not enthusiastically embraced its case that the applicant did not suffer a neck injury in the course of his employment on 31 July 2018.
Before attempting to resolve the issues in dispute, it is necessary to record aspects of the medical record and the medical opinion evidence which was referred to by the parties in argument. What follows is not intended to be a comprehensive survey of this evidence. Rather, I set out the salient parts so that the parties might understand the way in which the Commission has resolved the dispute.

MEDICAL EVIDENCE

On 7 August 2018, Dr Jason Chinnappa, an orthopaedic registrar at Sydney Hospital issued a certificate stating that the applicant was unfit for work until review in the hand clinic. He diagnosed a right scaphoid fracture.
On 14 August 2018, Dr Bernard Schick, a hand surgeon, reported to Dr Cuong Vo, the applicant’s GP, that he had reviewed the applicant having initially seen him at the Sydney Hospital clinic. He recorded that:
“He had an injury at work on 30 July 2018 (2 weeks ago) where he fell backwards and has had radial sided wrist pain. Although a scaphoid fracture was suspected, x-ray and CT did not show a fracture.”
Dr Schick noted that the radiology demonstrated that the applicant had an extrinsic ligament/capsular tear which may have resulted in the current injury or may have preceded it. He also observed significant finger clubbing and thought that this was worth investigating “plus/minus a respiratory physician review.” He treated the applicant with a wrist splint and referred him to physiotherapy.
On 21 September 2018, Dr Schick reported that the applicant was “still a bit sore but improving”. He again referred him for hand therapy.
On 16 November 2018, Dr Schick recorded that the applicant had undergone a ganglion aspiration and injection under Dr Korber. However, his pain had recurred. The doctor stated that the applicant was tender at the “first compartment” and had a positive Finkelstein’s wrist ganglion still slightly tender but no lump visible/palpable. His plan was for hand therapy and a further steroid injection.
On 11 December 2018, Ms Roberts, an occupational therapist, observed that the applicant had not experienced any improvement in his pain. He was still displaying classic De Quervain’s symptoms.
On 17 January 2019, Dr Schick recorded that the applicant’s pain had reoccurred after a steroid injection. He thought that he should be referred to Dr James Yu, a pain specialist, and that it was important that he return to work.
On 1 March 2019, Dr Schick recorded that there had been no change in the applicant’s symptoms and he was still suffering nerve pain. He had not seen the pain specialist. Dr Schick thought the applicant was fit for light manual work.
On 2 April 2019 Dr Yu reported to Dr Schick. He recorded the applicant’s presenting complaint as:
“chronic right wrist pain.”
The doctor recorded that:
“He described his pain as dull ache with intermittent electric shock type pain radiating into the base of his thumb, especially when the repetitive tasks. Associated symptoms include intermittent swelling in his hand, colour change and decreased range of motion.”
He diagnosed chronic right wrist pain – “neuropathic with sympathetic dysfunction.” He
recommended stellate ganglion blocks.”
On 30 April 2019, Ms Roberts recorded that the applicant had increased grip strength in his right hand. She reported:
“We have been working to get David’s strength improved and we are slowly achieving this. However, he does seem to be consistently hampered by pain regardless of the exercise.”
On 10 April 2019, Dr Yu reported that it would be appropriate for the applicant to undergo a series of right stellate ganglion blocks for his “persistent right wrist pain”.
On 18 April 2019, Dr Schick reported that the applicant’s right wrist pain was “now a bit more volar sided (related to his ganglion).” As the applicant had had good relief from steroid injections into his ganglion he thought that this would be worth trying again.
On 30 May 2019, Dr Yu reported that he had seen the applicant in the pain clinic. He stated that:
“He has presented with persistent right wrist pain associated with sympathetic dysfunction. He noticed swelling in his right hand associated with colour changes.”
On 29 July 2019, Dr Yu reported that the applicant presented with “persistent right wrist pain”. It was associated with intermittent swelling of the right hand. Stellate ganglion blocks provided only intermittent relief. His hand therapy had stopped.
On 8 August 2019, all Dr Schick reported that the applicant’s nerve pain has settled but the “ganglion is bothering him again”. He suggested a further aspiration and steroid injection.
On 3 October 2019, Dr Schick recorded that the applicant only had temporary benefit from the steroid injection. He proposed to excise the volar wrist ganglion and release his 1^st dorsal compartment tendon. He recorded:
“David understands that this will not relieve all his pain and does risk worsening the neuroma pain which presently seems ok.”
The applicant attended Dr Dick Quan, a GP, at Holdsworth House Medical Practice from 30 April 2019. On that occasion, Dr Quan recorded that the applicant was under the care of Dr Schick in respect of a right wrist ligament tear injury and a right ganglion. He had been seen by Dr James Yu, the pain surgeon.
On 4 November 2019, Dr Yu reported that the applicant presented with “persistent right wrist pain”. It was associated with intermittent swelling of his hand with red discolouration. Gabapentin had significant side-effects and the applicant had ceased taking it. He was commenced on Endep. He noted that the applicant was awaiting wrist surgery.
On 10 February 2020, Dr Yu advised that the applicant’s right wrist pain had improved significantly after the surgical procedure. He was attending physiotherapy. He thought that he should be trained for lighter work.
On 28 April 2020 Dr Quan recorded that the applicant still had:
“pain in R wrist with pins and needles in radial side of R wrist/past ligament of R wrist/ganglio [sic].”
On 28 April 2020, Dr Quan recorded that the applicant was waking in pain in right wrist and had pain “even swimming 20 minutes”.
On 20 May 2020, Dr Quan recorded that the applicant complained of:
“R hand pain, this month, no explanation except weather change.”
He also recorded the following:
“No neck pain. Right shoulder pain Most pain in forearm. No elbow pain, right wrist pain, right hand pain, no painful fingers. Injuries.”
The doctor recorded that the reason for a visit was a torn ligament. He had noted that the forearm was not swollen, tender or exhibiting any deformity.
On 22 July 2020, Ms Roberts reported that the applicant had attended his final hand therapy review for pain “in his right base of thumb/wrist”. She continued:
“David has diligently attended hand therapy, however there are often different areas of pain, and even at the last session a new pain was mentioned for the first time. For example, he mentioned some cramping in the forearm plexus muscles with repetitive gripping. This has never been mentioned before. Overall, there are some inconsistencies, with the Patient Rated Wrist Evaluation Score almost identical pre and post-surgery, despite the patient reporting the surgery was helpful.”
On 17 August 2020, Dr Quan recorded that the applicant had suffered an exacerbation of right wrist pain after trying to open a sauce bottle on 13 August 2020. The applicant reported similar pain to the previous tendon tear. On examination, the applicant was tender in the radial side of the wrist up to the mid forearm and was unable to flex or extend the wrist. He diagnosed neuropathic pain.
On 19 August 2020, Dr Quan recorded that the applicant had pain “going up to the R elbow”. The applicant had pins and needles in the palm of his right hand and tenderness and swelling in the forearm extensors. Dr Quan queried a torn ligament.
On 1 September 2020, Dr Quan recorded that the applicant still had right arm pain “up to the elbow” although the pain was now less intense. He postulated a soft tissue injury to the right forearm.
On 8 September 2020, the applicant complained of severe pain of the wrist joint radiating up to the forearm and paraesthesia to the palm of his hand.
On 29 September 2020, Dr Quan recorded that the applicant was tender in all movements of the wrist. He recorded that the applicant had a right ligament strain after an exacerbation.
On 27 October 2020, Dr Quan recorded that the applicant and had a nerve conduction studies done at St Leonards. The applicant’s pain was reduced considerably but with exacerbations. He was referred to Dr Wheen, a hand specialist.
On 22 December 2020, Dr Quan noted that the applicant had “survived” dogman training with minimal increase in his right wrist pain. His diagnosis remained a ganglion, joint/tendon/ligament tear.
On 16 February 2021, Dr Cuong referred the applicant to Dr Chow, a pain specialist. He reported that the applicant had a “longstanding pain in his R forearm, which was treated by Dr Schick, (who) then referred him to Dr Yu in 2019”. The doctor recorded that the applicant had a recent exacerbation of right hand pain. He reported that he was doing a trial of sales work but his pain had been “exacerbated by lifting blocks of wood at his work”.
On 19 February 2021, Dr Chow reported that the applicant presented with right wrist pain. He diagnosed right wrist neuropathic pain with sympathetic dysfunction and anxiety. He noted that the applicant was working 38 hours a week as a sales representative with restrictions. He thought there was “high pain catastrophising.” He recommended referral to another hand surgeon, Dr Tawfik for a second opinion and a further right stellate ganglion block with a right radial nerve block.
On 13 April 2021, Dr Quan recorded at the applicant had received a nerve block. He now had intermittent pain. The doctor also recorded:
“Had anterior R neck and 2more injections.”
As Mr Young argued this is the first reference to neck in the clinical record but it is quite ambiguous.
On 23 April 2021, Dr Chow reviewed the applicant. He diagnosed right wrist neuropathic pain with autonomic nerve dysfunction.
On 21 May 2021, Dr Chow reviewed the applicant. He recorded that his right wrist was “getting stiffer with significant allodynia over the scar.” He encouraged him to pursue “right hand weight training as tolerated.”
On 2 July 2021, Dr Chow noted that there had been improvement in the applicant’s right hand. He recorded that:
“He is still experiencing residual pain on wrist abduction.”
He gave him a referral to Dr Nabarro, the hand surgeon. On 10 August 2021, Dr Nabarro recorded that the applicant sustained an injury:
“to his right wrist, shoulder and neck when he fell at work in July 2018”.
Dr Nabarro recorded that the applicant had made steady progress following surgery but had an exacerbation of pain in August 2020 when opening a jar. He recorded that:
“Since then, he had had pain over the radial aspect of the wrist which radiates to the elbow and numbness and tingling in the right palm and dorso-radial aspect of the right hand. His pain is exacerbated by lifting objects, driving a forklift, ulnar deviation of the wrist. He is waking every night with pain and paraesthesia in his right hand and wrist despite wearing a splint. He is currently taking Endep, Palexia and Clonidine. He reports no significant neck pain or radicular symptoms. He has noted colour changes but no sweating in his right hand. He is currently not able to work.”
Dr Nabarro opined that the applicant had signs of right carpal tunnel syndrome, recurrent De Quervain’s tenosynovitis, radial nerve compression in the right forearm, possible radial tunnel syndrome and complex regional pain syndrome in the right hand. He recommended further “sequential steroid injections of the right carpal tunnel and the 1^st dorsal compartment”. On 22 October 2021, Dr Chow reviewed the applicant. He reported that the applicant needed to use his non-dominant hand to perform most of his tasks. He noted that the applicant did not obtain any benefit from the right carpal tunnel steroid injection.
On 18 October 2021, the applicant saw Dr Mark Jones, a sports physician, at the request of the respondent’s insurer. The doctor recorded that the applicant described constant pain in the “dorso-radial right wrist which radiates to his elbow.” There was also pain in his right hand and thumb. He recorded that:
“There is occasional pain radiation proximately to his right shoulder and neck whilst he is sleeping.”
Dr Jones thought that the applicant had chronic right wrist and upper limb pain and that it was appropriate for him to continue under the care of his hand surgeon and pain specialist.
On 1 September 2021, Dr Nabarro reviewed the applicant and noted that he complained of ongoing pain over the radial aspect of his right wrist and numbness and tingling in his right hand.
On 13 October 2021 Dr Nabarro reported that the applicant reported some improvement in his carpal tunnel symptoms following a steroid injection but was still waking at night with pain in the right wrist and paraesthesia in his right hand.
On 17 November 2021 Dr Nabarro recommended a right carpal tunnel release, release of the first dorsal compartment and neurolysis of the superficial branch of the radial nerve in the right forearm. This was undertaken at St George Private Hospital on 22 January 2022.
On 31 January 2022, the applicant complained of some pain in his right wrist and of “increasing pain in his left elbow”.
On 14 February 2022 Dr Nabarro reported that the applicant had “some pain in his right wrist” but it was only requiring Panadol.
On 6 April 2022 Dr Nabarro recorded that the applicant had minimal pain in his right wrist. He had returned to work on 25 March 2022 but the pain in his left elbow had “increased significantly since then”.

On 26 April 2022, Dr Chow recorded that the applicant had undergone an MRI scan of the cervical spine which demonstrated myelomalacia and marked disc osteophyte “greatest at C6/7”.Dr Chow recorded that the applicant complained of “cervical back pain, numbness and tingling and upper limb pain radiating from his elbow to triceps on exertion.”
The report of the MRI of 7 April 2022 by Dr Christopher Jones stated that it demonstrated:
“moderate cervical spondylosis,
multi-level disc osteophyte disease, marked at C6/7,
focal cord myelomalacia at C5/C6,
moderate cord flattening compression at C6/7,
multi-level foraminal stenosis, greatest at the right C4 nerve root exit canal and the left C6 and C4 nerve root exit canals.”
On 5 May 2022, Dr James Laban, a neurosurgeon, saw the applicant. He recorded the following history:
“Approximately 3 years ago he was finishing concrete when he fell over a piece of reo twisting his neck and injuring his right hand. He had right forearm surgery in 2019 with a second operation in January of this year under Dr Mark Nabarro. He has suffered ongoing neck pain with associated pins and needles in the right occipito-cervical region and whole right upper limb with hand numbness. He also has pins and needles in the left shoulder and biceps region and the soles of his feet with paraesthesia in the right lower limb. These symptoms have progressed over time particularly in the last few months since his last operation. He has felt steady on occasion and has had difficulty with fine movements of his right hand, for example doing up buttons or undoing jars. He tends to use his left hand if possible.”
Dr Laban concluded that the applicant’s:
“symptoms and imaging findings as described are consistent with pre-existing cervical spondylosis becoming symptomatic secondary to the work-related injury. The neck pain, upper limb symptoms and recent lower limb symptoms are all consistent with progressive cervical radiculo-myelopathy. He did not have any neck or other symptoms secondary to cervical radiculo-myelopathy prior to the injury. The pre-existing degenerative changes only became symptomatic with the neural injury caused by the work-related accident.”
On 3 June 2022, Dr John Sheehy, a neurosurgeon saw the applicant at the request of the respondent’s solicitor. He recorded that at the time of the injury in 2018:
“He injured his right wrist and landed on his neck with the development of neck pain which settled after a period of 3 weeks though there was occasional pain in the neck since that time. The fall was over a piece of reo twisting his neck and injuring the right hand.”
The doctor also recorded that the applicant had been:
“troubled by neck pain with associated pins and needles in the right occipito-cervical region and pain in the right upper limb with hand numbness. He has also noticed pins and needles in the left shoulder and biceps region and in the soles of his feet and paraesthesia in the right lower limb. These symptoms have progressed over time particularly over the last few months since his last operation.”
He expressed the following opinion on causation:
“It is of note that Mr Allan himself notes that neck pain settled over 3 weeks though there was some discomfort in the neck continuing and he soon thereafter developed more extensive symptoms in the right upper limb than can be explained by his wrist pathology. He has developed a progressive weakness using the hand which has been difficult to define separate from his wrist injury and more recently a progressive weakness affecting both legs. On the balance of probabilities it is likely that he sustained a cervical spine injury in July 2018 which has progressed over time and rendered him significantly symptomatic.”
Dr Sheehy noted that the findings on the MRI scan likely ante-dated the injury, however, the applicant became symptomatic following the injury. It followed that the injury was a substantial contributing factor to the claimed cervical cord syndrome.
Dr Brian Stephenson, an orthopaedic surgeon saw the applicant at the request of his solicitor on 24 October 2022 and provided a report of 24 October 2022. He recorded a rather terse history of injury. It is:
“The body parts injured, he said following the date of injury 31 July 2018 as a concreter, were injury to the right hand and neck.”
After considering the reports of Dr Laban and Dr Sheehy he stated that:
“There is a direct causal relationship in my opinion related to the cervical spine diagnosis, radiologically and diagnosis confirmed by neurosurgeon, Dr James Laban in his reports.”
He continued:
“Yes. Tripping and falling over the concrete and reaching out with the right upper extremity to push away a metallic obstacle caused him to fall in such a way, i.e. jarred the right upper extremity and the cervical spine making manifest the cervical discal pathology, causing cervical cord compression.”

FINDINGS AND REASONS

It is common ground that the applicant suffers from “cervical discal pathology,” a degenerative condition of the cervical spine, and that this condition predated the injury of 31 July 2018. Dr Stephenson concluded, on the basis of the history he recorded, that the jarring injury had the effect of “making manifest the cervical discal pathology” causing cervical cord compression. Dr Sheehy noted that the findings on the MRI scan of disc degeneration and severe stenosis “likely antedated” the injury. On the history he recorded, Dr Laban characterised the injury as an aggravation of a pre-existing but asymptomatic disease.
As cervical disc disease is a progressive condition, determining whether incapacity or the need for treatment results from an incident at work or the progression of the condition is often difficult. That difficulty is compounded in this case by the absence of any reference to a neck/cervical injury or to a complaint of neck symptoms in the quite extensive medical record in the years following the injury.
Dr Sheehy notes that the first reference to neck symptoms in the contemporaneous notes furnished him was 7 April 2002. While I was not taken specifically to all of the contemporaneous clinical record at the arbitration hearing, it was accepted by Mr Young that there was no reference to neck pain in the medical record before April 2021.That is a period of 21 months..
The caselaw from both the Court of Appeal and the Presidential Unit of the Commission has repeatedly stated that histories in medico-legal reports and in the clinical or continuation notes of medical practitioners should be treated with caution. More so when they are inconsistent with the sworn evidence of a witness. Daniel Gerard Fitzgibbon v The Waterways Authority & Ors[1] and Davis v Council of the City ofWagga Wagga[2] are only two examples of these cases.
[1] [2003] NSWCA 294 (3 December 2003).
[2] [2004] NSWCA 34 (26 February 2004) (Davis).
On the other hand, the presence or absence of a relatively contemporaneous complaint of symptoms in a document or medical record has generally been regarded as an important measure of the occurrence and nature of injury: see, for example, the approach of the trial judge recorded in Azzopardi v Tasman UEB Industries Ltd.[3] The greater the interval between the incident and the first report of symptoms, the more difficult it is to be confident of a causal nexus.
[3] (1985) 4 NSWLR 139.
The passage of time may cast doubt on the reliability of the evidence of witnesses. There is, as Mr Rickard submitted, a natural tendency to associate bodily complaint with past trauma. In Coote v Kelly; Northam v Kelly,[4] Davies J collected a number of cases dealing with credibility and the fallibility of human memory. Many are well-known and I do not propose to recite them in this decision. They provide some logical underpinning for the reluctance to invariably accept the evidence of a witness where there is inconsistency between his evidence and the contemporaneous documentary record, even if the witnesses’ evidence is not otherwise impugned.
[4] [2016] NSWSC 1447 at [100] to [102].
Obviously, it is necessary to scrutinise the written record to ensure that is reliable and not corrupt. As the case law instructs the clinical notes of medical practitioners are not recorded for legal purposes. But where the contents of clinical notes and medical histories are clear, they are important evidence. More so in a jurisdiction where there is rarely sworn oral evidence to assist the Commission in making factual findings.
In addition to proof of injury to the neck, in order to succeed on this claim the applicant must prove that his employment was a substantial contributing factor to the injury. Further, he must prove that the need for surgery proposed in 2022 results from the injury in July 2018. Proof of injury and causation is a question of fact which involves an assessment of both the medical and lay evidence. Proof of each of these matters is made difficult by the absence of a recorded complaint of neck injury in the clinical record.
In this case, Dr Sheehy had access to a good deal of that material when he saw the applicant on 30 June 2022 including the serial reports from Dr Schick and Dr Yu in 2018 and 2019. For the purpose of his supplementary report, he was provided with the additional reports from Dr Yu and Dr Chow. He specifically addressed the absence of recorded complaint in the medical record in these reports.
In his initial report, Dr Sheehy acknowledged the absence of any note of the treatment for or neck or arm symptoms in the documents from the local medical officer. Nonetheless, he concluded that this was not inconsistent with the applicant’s history of experiencing neck pain which settled after three weeks leaving some continuing discomfort in the neck. Importantly, he noted that the applicant developed a progressive weakness using his hand “which had been difficult to define separate from his wrist injury.”
Dr Sheehy returned to this aspect of the case in his supplementary report where he recorded the diagnosis of De Quervain’s tenosynovitis and carpal tunnel syndrome and noted that on the history he received the applicant had become aware of “progressive numbness and pins and needles affecting the right upper limb more extensive than just wrist.” After reconsidering the reports of Dr Yu and Dr Chow, the stated that:
“The neuropathic pain Dr Yu and Dr Chow refers to relates to the injury to his wrist. The cervical cord compression was causing weakness and paraesthesia and numbness not neuropathic pain.”
Thus, Dr Sheehy is of the opinion that the applicant experienced initially subtle symptoms of nerve root compression in the right arm which coexisted with the wrist injury and the neuropathic pain treated by the hand and pain specialists. Plainly, he accepted that this course of events was not inconsistent with the clinical record. Dr Sheehy’s history is reasonably consistent with the applicant’s evidence that the following the injury his neck pain “largely settled without treatment.”
While there is nothing in the clinical record or any other document to corroborate the applicant’s assertion that he suffered a neck injury there is no note or other document which is entirely inconsistent with him suffering a neck injury. There is, for example, no claim form in which he describes the injury in terms which clearly exclude an injury to the neck. I was not taken to any evidence from the applicant’s initial GP, Dr Dr Cuong Vo, which was inconsistent with an injury to the neck. In these circumstances, I am reluctant to reach the conclusion that the applicant’s evidence on this issue is unreliable.
Then, there is the evidence of Ms Pawlikowski, a solicitor, who took “an enquiry” from the applicant on 11 February 2019 and recorded that he had suffered a cervical injury at the time of the incident on 31 July 2018. Mr Rickard suggested that little or no weight be given to this evidence. However, in my opinion, in the disposition of the evidence in this case it is important. Together with the applicant’s evidence, it leads me to the conclusion that the applicant probably suffered an injury to his cervical spine on 31 July 2018.
Each of the medical witnesses who have commented in a meaningful way on causation accept that the applicant experienced a degree of a continuing discomfort, at least intermittently in his neck and the gradual development of right upper limb symptoms consistent with a progressive myelopathy from that time. That opinion does not sit perfectly well with the clinical record. It assumes, of course, that two GPs, two orthopaedic surgeons, and two pain specialists overlooked symptoms or signs of cervical disease in the applicant’s right arm over multiple consultations.
It is also seemingly inconsistent with several of the entries in the clinical record. On 10 August 2021, Dr Nabarro recorded that the applicant had “no significant neck pain or radicular symptoms”. Earlier, on 20 May 2020, Dr Quan had recorded “No neck pain” although the balance of the note is ambiguous.
Of course, there are entries in the clinical record which suggest the opposite. The entry to neck pain in April 2021 and Dr Jones reference to occasional pain radiating to the applicant’s right shoulder and neck while sleeping on 18 October 2021.
Dr Sheehy had access to many of these documents. He did not believe they undermined the applicant’s case. In the unusual circumstances of this case, I have concluded that it would be inappropriate to substitute my view of the clinical record for that of the medical practitioners. I accept, more probably than not, that the applicant suffered injury to the cervical spine by way of an exacerbation of his underlying extensive spinal canal stenosis. I prefer the unanimous medical view that there is a causal relationship between that injury and the applicant’s present cervical complaints
Accordingly, I intend to find that the treatment proposed by Dr Laban in recommendations 1 to 3 in his report of 23 May 2022 are reasonably necessary as a result of the injury on 31 July 2018. There is, however, no evidence that investigations of the applicant’s brain or lumbar spine result from that injury.

[2023] NSWPIC 60

16 February 2023