Brodie v J.J. Richards & Sons Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brodie v J.J. Richards & Sons Pty Ltd [2024] NSWPIC 487
APPLICANT:	Gavin Brodie
RESPONDENT:	J.J. Richards & Sons Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	2 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation and various future treatment expenses; accepted injury to left upper limb; whether applicant sustained injury to cervical spine in same event; delay in symptoms being recorded by treating doctors and report of cervical spine injury to insurer; credibility of applicant’s evidence; applicant sustained an unusual injury involving multiple adjacent body parts which his doctors had difficulty diagnosing; treating evidence consistent with a frank injury to the cervical spine albeit only diagnosed after a process of elimination; Held – matter referred to Medical Assessor for assessment of degree of permanent impairment; general order for treatment expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his cervical spine in the course of employment on 25 January 2021 pursuant to s 4(a) of the Workers Compensation Act 1987. 2. The applicant’s employment with the respondent was a substantial contributing factor to the injury to his cervical spine pursuant to s 9A of the Workers Compensation Act 1987. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment resulting from injury as follows: Date of injury: 25 January 2021 (personal) Body parts: left upper extremity (shoulder) cervical spine skin / TEMSKI (consequential) Method: whole person impairment. 4. The materials to be referred to the Medical Assessor are to include all those materials admitted in the proceedings. 5. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses resulting from the injury on 25 January 2021 in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Gavin Brodie (the applicant) was employed by J.J. Richards & Sons Pty Ltd (the respondent) as a truck driver.
On 25 January 2021, the applicant was injured when he was attempting to secure a load of waste. The applicant was pulling and pushing a draw bar away from a damaged locking mechanism on his truck when he felt an onset of sharp pain in his left arm.
The respondent’s insurer accepted liability for an injury to the applicant’s left upper limb in that event and paid weekly compensation and medical and related treatment expenses.
On 5 May 2023, the insurer issued a dispute notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability to pay compensation for a left shoulder corticosteroid injection and physiotherapy treatment requested by the applicant’s treating specialist, Dr Kathryn Gaffney.
That dispute was maintained following internal review on 25 September 2023.
On 26 September 2023, the applicant’s solicitors forwarded a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The applicant relied on an assessment of 11% whole person impairment (WPI) of the left shoulder, cervical spine and skin (scarring) made by Dr Andrew Porteous on 6 September 2023.
Liability to pay lump sum compensation was disputed in a further notice issued pursuant to s 78 of the 1998 Act on 8 May 2024. The insurer disputed that the applicant had sustained an injury to his cervical spine and that the injury had resulted in a degree of permanent impairment greater than 10%.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute on 10 May 2024. The applicant seeks lump sum compensation in accordance with Dr Porteous’ assessment and various future treatment expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Personal Injury Commission (Commission) for conciliation conference and arbitration hearing on 7 August 2024 in Sydney. The applicant was represented by Mr William Carney of counsel. The respondent was represented by Mr Boris Necovski of counsel.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to his cervical spine on 25 January 2021 pursuant to ss 4 and 9A of the 1987 Act;
(b) whether the treatment expenses claimed are reasonably necessary as a result of the injury on 25 January 2021 pursuant to s 60 of the 1987 Act, and
(c) the degree of permanent impairment resulting from the injury on 25 January 2021.

EVIDENCE

Documentary 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;
(b)    Reply and attached documents, and
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 2 August 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 19 March 2024 and 2 August 2024.
In his first statement, the applicant described the incident on 25 January 2021. The applicant was attempting to secure a load of waste on his truck when he noticed the load was over the top of the bin. The applicant had to move some timber pallets to secure the load. The draw bar, that was usually used to open the rear door had been damaged and the safety latch was also damaged. The applicant was pushing and pulling the draw bar to get it into a position to move it away from the damaged locking mechanism. The applicant was doing this for some time when he felt an onset of sharp pain in his upper left arm. The applicant had sustained an injury to his left shoulder, biceps and triceps.
The applicant continued to work but overnight the pain increased significantly. The applicant reported the injury on returning to work the next day.
The applicant consulted a physiotherapist on 27 January 2021 and saw his general practitioner at Our Medical Home Marsden Park, who sent him for an ultrasound.
The applicant attended a few physiotherapy sessions but his pain was worsening. The applicant was unable to lift any significant weight. The applicant changed physiotherapists and saw a different general practitioner who referred him to specialist, Dr Kathryn Gaffney.
The applicant saw Dr Gaffney on 11 May 2021 and she diagnosed tears of the long and short heads of the biceps. The applicant was referred to an orthopaedic surgeon, Dr Haren Nandapalan, who recommended surgery. Dr Nandapalan diagnosed a high-grade partial tear to both the bicep and triceps.
The applicant underwent surgical repair on 8 June 2021. Post operatively, the applicant wore a sling and was advised to refrain from movement and lifting for a further four weeks. The applicant returned to physiotherapy on 19 July 2021.
At a review with Dr Nandapalan nine weeks post surgery, the applicant was still suffering shoulder pain which had not resolved with surgery. The applicant underwent an MRI scan which demonstrated partial tear to two distinct parts of the rotator cuff.
The applicant was eventually referred for cortisone injections but they did not provide any significant relief. The applicant was referred back to Dr Gaffney, who referred the applicant to a shoulder specialist Dr Warren Kuo. Dr Kuo referred the applicant for needle electromyography (EMG).
The applicant continued with physiotherapy until approval from the insurer ceased in mid-August 2023. Dr Gaffney wanted the applicant to continue with physiotherapy.
The applicant said he wanted to continue with corticosteroid injections and physiotherapy because he found that those forms of treatment were helpful prior to stopping them. The applicant said his healing had regressed since stopping those treatments. The applicant had tried other treatment methods, but this was what worked and reduced his unbearable pain.
In his supplementary statement, the applicant addressed the claimed cervical spine injury.
The applicant said that at the time of injury, he experienced pain in his left elbow, leading into his upper body, left shoulder as well as the surrounding area from the neck to the shoulder.
The applicant said his initial physiotherapy treatment was for his left shoulder and left elbow but he did note to his physiotherapist that he had pain around the neck. After six months of physiotherapy, the applicant’s physiotherapist indicated that he was still unable to determine the cause or a diagnosis.
Following the surgery to the applicant’s left arm, he experienced further pain in his shoulder, radiating to his neck. The applicant reported severe numbness and pain in that area when lying in bed to Dr Gaffney.
When numerous injections to the applicant’s shoulder did not help, Dr Gaffney requested an MRI to investigate the applicant’s neck pain.
The applicant said he agreed with the opinion expressed by his expert, Dr Porteous, that he had aggravated pre-existing degenerative change in his cervical spine with referred pain into the shoulder.

Treating evidence

Clinical records from Our Medical Home Marsden Park show that the applicant reported an injury due to pulling and pushing a lever to his general practitioner on 29 January 2021. The applicant was noted to be quite tender around the elbow and an ultrasound of the left elbow was arranged.
The results of the elbow ultrasound were discussed at a review on 1 February 2021. The findings were said to likely represent a sprain. The applicant was advised to take Nurofen and continue with physiotherapy.
A report to the applicant’s general practitioner prepared by the Sports Physiotherapy & Work Rehabilitation Centre on 10 March 2021, noted that the applicant had been attending physiotherapy for management of his work-related left arm injury. The applicant had been experiencing some non-mechanical flareup of symptoms in multiple areas of his arm. The report noted, amongst other things, that at a recent consultation, the cervical spine had been examined with full range of movement in all directions.
In a further report dated 25 March 2021, the applicant’s physiotherapist noted that recent MRI results showed multiple elbow pathologies, however, the applicant’s symptoms and location of pain did not seem to present according to those findings. The report again noted that examination of the cervical spine showed full range of movement in all directions.
Orthopaedic surgeon, Dr Haren Nandapalan saw the applicant on 18 May 2021. Dr Nandapalan described the injury and reported:
“This left him with quite significant pain on the anterior aspect of his elbow, but also the posterior aspect. Despite multiple physio sessions and a few months of non-operative treatment, he has failed to improve at all. Gavin is quite disabled by this. He cannot do simple activities such as holding his grandson and lifting anything of significant weight, not to mention he has now lost significant muscle bulk in his entire arm from lack of use. On examination, Gavin is exquisitely tender over the distal biceps tendon. He has no tenderness over the lateral epicondyle and common extensor tendons. He has exquisite tenderness over the point of his olecranon. He also has some tenderness over the posterior aspect of his elbow joint. His range of motion is limited by pain but he is able to extend and flex his arm.”
Dr Nandapalan said the MRI showed a high-grade partial tear to the distal biceps tendon along with the triceps tendon. Dr Nandapalan said this was a “very unusual injury”. Surgical intervention was recommended.
An operation report indicates that the applicant underwent repair of the left distal biceps and left distal triceps on 8 June 2021.
In subsequent reports, Dr Nandapalan noted that the applicant was wearing a sling post operatively. In a report dated 10 August 2021, Dr Nandapalan noted:
“He has near full range of motion and is lacking the last 5 degrees of extension. He has a bit of tenderness in both tendons but this will resolve with time. His only complaint is some intermittent paraesthesia to his ulnar distributed little fingers. This is probably just due from some ulnar nerve irritation from the surgery and some swelling and maybe even scar tissue. Hopefully this improves with time but we will keep an eye on it. He has also been suffering from his left shoulder pain which he has complained has been there since the date of the injury. This pain radiates from his suprascapular fossa anterolaterally down the arm. He has got pain on loading his supraspinatus which is difficult to examine post surgery but I think given that it is eight months post injury it is probably worthwhile obtaining an MRI scan.”
On 5 October 2021, Dr Nandapalan reported:
“He has still got ongoing shoulder pain in the suprascapular fossa region radiating down the anterolateral aspect of his arm fitting with supraspinatus. I understand he is due for a cortisone injection soon which is a good idea as Gavin is becoming quite frustrated with the lack of progress with his strength. He is doing very little strengthening as he is limited by shoulder pain.”
In a letter dated 12 October 2021, Dr Nandapalan again noted the applicant’s ongoing left shoulder pain, commenting:
“In regard to his shoulder injury the reported mechanism is most likely from the index injury back in January which was a violent rotation of his arm which injured his elbow firstly. His shoulder was not too bad and was likely masked by the elbow pain. Not to mention physiotherapists and other health professionals advising him that the shoulder pain was most likely radiating or referring from the elbow.”
On 31 January 2022, Dr Nandapalan noted:
“Gavin's primary complaint is pain which is in the posterior aspect of his shoulder which occasionally radiates down to his arm and his serratus anterior. This pain does not sound radiculopathic or neurological in nature and he is quite tender over the rhomboid and trapezius muscles.
I will have a chat to his physio, Allan Bourke, whom he has only just seen as a second opinion a few months ago but I would also like Gavin to see my colleague, Dr Kathryn Gaffney, a sports physician, to see if she would have any other insight into his shoulder pain.”
In a letter to physiotherapist, Mr Allan Bourke, dated 15 February 2022, sports and exercise physician, Dr Kathryn Gaffney, noted that the applicant had returned to see her. The applicant’s elbow function had progressed well but superior shoulder pain had persisted. The applicant described feeling of numbness which could be quite severe. Most of the applicant’s symptoms were associated with activities with elevation of the shoulder.
Dr Gaffney noted that her cervical spine examination showed full flexion and extension but reduced lateral flexion to the right. Brachial plexus tension was positive and reproduced some of the applicant’s pain. There was altered sensation over the C5 dermatome and weakness of the deltoids.
Dr Gaffney said she was wary of addressing changes in the shoulder given that injections did not alter the applicant’s symptoms at all. Dr Gaffney said it would be prudent to organise an MRI of the cervical spine to see if there was any neural compression that may be causing the applicant’s pain. Dr Gaffney noted:
“He certainly had positive radial and ulnar nerve tension when I saw him in May last year which I thought was due to the elbow pathology but may have been from a more proximal injury at the same time.”
In a letter dated 1 March 2022 to Mr Bourke, Dr Gaffney noted that the applicant had returned with his MRI results which showed multilevel degenerative changes as well as facet joint arthrosis, most marked at C7/T1. Dr Gaffney reported that with this result and the applicant’s clinical symptoms, it was reasonable to trial some Lyrica to settle the neural component of the applicant’s pain.
On 15 March 2022, Dr Gaffney wrote to the respondent’s insurer noting that the applicant had not tolerated medication for nerve pain. Dr Gaffney wish to organise an injection around the C6 and C7 nerve roots for diagnostic and hopefully therapeutic purposes.
On 22 March 2022, the applicant underwent a left C6 perineural injection and left C7/T1 facet joint injection. The applicant reported that the first injection increased his pain while the latter injection reduced his pain from 8 or 9 out of 10 to a 4 out of 10.
In a letter to orthopaedic surgeon, Dr Warren Kuo dated 7 June 2022, Dr Gaffney described the injury on 25 January 2021. Dr Gaffney said the applicant had developed pain in the posterior elbow and superior shoulder. Dr Gaffney had found that the applicant had avulsed the distal biceps tendon and triceps tendon which was surgically repaired by Dr Nandapalan. Dr Gaffney stated,
“Gavin has been troubled by ongoing pain across the superior shoulder and into the left arm. He has had an injection into the shoulder with some limited improvement. Injection around C6 and C7 reduced the symptoms a little but left him with new symptoms near the cervical spine. He has pain with movements that stretch the ulnar and radial nerves. He has had difficulty sleeping since the injury…”
Dr Kuo prepared a report for Dr Gaffney on 19 July 2022 in which he noted that the applicant had injured his biceps and triceps in the incident on 25 January 2021. The applicant was aware of ongoing pain and weakness in his shoulder as well as some associated cervical spine issues. The applicant’s pain had been recalcitrant to treatment including physiotherapy and cortisone injections but had recently turned a corner with pain levels now sitting at about a 2/10.
Dr Kuo diagnosed a left rotator cuff impingement with associated cervical spine disease. The applicant reported significant improvement in his symptoms with some recent cervical traction.
In a report addressed to Mr Bourke, dated 11 April 2023, Dr Gaffney reported that the applicant had returned to see her. The applicant had undergone an injection into the bursa after bursal pathology was demonstrated on a shoulder MRI in March 2023. This resulted in very little change in the applicant’s level of pain. Dr Gaffney said this could be interpreted as meaning that the bursa was not causing the applicant’s pain. The applicant described burning pain over the supero-medial scapula. Palpation along the scapula was painful. Dr Gaffney asked Mr Bourke to concentrate treatment on the scapula and its position and attachments to determine if this was part of the problem.

Dr Porteous

The applicant relies on a medico-legal report prepared by occupational physician, Dr Andrew Porteous, dated 6 September 2023.
Dr Porteous took a history of the injury and subsequent treatment that was consistent with the treating evidence before the Commission.
Dr Porteous recorded findings on examination. Dr Porteous diagnosed biceps and triceps left arm tear as well as aggravation of pre-existing degenerative change in the left shoulder. Dr Porteous also commented:
“In my opinion, it is also likely that Mr Brodie aggravated or exacerbated pre-existing degenerative change in the cervical spine and there was referred pain into the superior shoulder.”
Dr Porteous said that treatment by way of a left corticosteroid injection and physical therapy of the left shoulder as recommended by Dr Gaffney was reasonable and likely to lead to improvement. Dr Porteous identified a range of other potentially necessary treatments and made an assessment of permanent impairment.

Dr Bokor

Orthopaedic surgeon, Dr Desmond Bokor, prepared medico-legal reports for the respondent on 18 July 2023, 19 February 2024 and 22 February 2024.
In his first report, Dr Bokor described the injurious event and subsequent treatment. Dr Bokor noted that the applicant had ongoing pain around the left shoulder radiating into the suprascapular fossa up into the neck and posterior scapula. Actions such as reaching out to the side in abduction provoked pain which radiated from the lateral deltoid up into the neck. The applicant reported problems with weakness in the left upper limb.
On examination, Dr Bokor found decreased neck movement with pain. Dr Bokor referred to the radiological investigations including the cervical spine MRI.
Dr Bokor’s diagnoses included “residual neurogenic upper limb periscapular and neck pain.” Dr Bokor said the applicant’s pain was not a mechanical problem in the shoulder so much as a “neurogenic strain to the periscapular and cervical areas”. Furthermore, while there was no clear objective mechanical damage to that area, the applicant’s “symptoms and clinical features all date back to the original injury described”.
In his most recent report, Dr Bokor was asked whether the original mechanism of injury correlated to the presentation of symptoms and pathology. Dr Bokor responded:
“The original mechanism of injury involved traction and excessive load using the whole of the upper limb to manoeuvre the levers on his truck. While he did injure his elbow, this also created a secondary strain and traction-type injury to his upper limb and has resulted in a chronic pain issue with a neurogenic basis. It is reasonable to state that the original mechanism of injury correlates with the development of this condition.”
Dr Bokor made an assessment of impairment at the shoulder and elbow but said that as he was not a cervical spine specialist he could not offer any assessment of the cervical component of the applicant’s impairment.

Applicant’s submissions

The applicant referred to his statement evidence in which he described the incident on 25 January 2021. The applicant observed that his evidence regarding the mechanism of injury was not in dispute.
The applicant described the treatment that he received following the incident and noted that he found the physiotherapy and cortisone injections helpful. The applicant wished to continue with the treatment recommended by his specialist.
In his supplementary statement the applicant explained that he initially experienced pain up his left arm and around the left shoulder.
The applicant gave evidence that at the time of injury and during his physiotherapy appointments, he also noted pain around his neck.
The applicant underwent surgery, after which he reported experiencing severe numbness. The applicant received injections to the shoulder and was referred by Dr Gaffney for an MRI of the cervical spine.
The applicant submitted that his evidence was supported by the contemporaneous clinical material. The physiotherapist’s reports dated 10 and 25 March 2021 recorded examinations of the cervical spine. Although full range of movement was noted, those reports were said to be consistent with the applicant having made complaints of neck pain.
Dr Gaffney eventually referred the applicant for radiological investigation and injection to the cervical spine for both therapeutic and diagnostic purposes. In her referral to Dr Kuo, Dr Gaffney noted neck symptoms.
Neck symptoms and the results of the MRI were also mentioned in a referral to the applicant’s physiotherapist.
The applicant observed that there was little dispute between the medico-legal experts. Dr Porteous accepted that the incident had resulted in an aggravation of degenerative pathology at the applicant’s cervical spine. Dr Bokor did not disagree with that opinion.
Although Dr Bokor did not assess permanent impairment at the cervical spine, that was because he was not a neck specialist.
The applicant’s evidence was consistent with the medico-legal expert evidence. The applicant submitted that the Commission would accept that the incident aggravated degenerative pathology at the applicant’s cervical spine and that the treatment expenses claimed were reasonably necessary as a result of that injury.

Respondent’s submissions

The respondent noted that the applicant relied on a frank injury to the cervical spine and submitted that he could not discharge the relevant onus of proof.
The respondent referred to the clinical notes and observed that the initial entry addressing the injury recorded left elbow pain only. There was no mention of neck symptoms.
The applicant’s first written statement, prepared earlier this year, made no mention of neck symptoms or injury.
Dr Nandapalan’s reports made no mention of neck injury. The certificates of capacity issued by the applicant’s nominated treating doctor each month also made no mention of neck injury.
The respondent said the credibility of the applicant’s evidence was in issue. In his most recent statement, the applicant said he had injured his neck in the original event but this was not borne out by the contemporaneous evidence. Neck symptoms were only reported after a considerable period of time.
The applicant said he reported neck symptoms to his physiotherapist. However, the physiotherapist’s notes made no mention of neck pain and described full range of motion. The applicant was asking the Commission to accept that he reported symptoms but they were not recorded.
The respondent submitted that Dr Gaffney described “new” cervical spine symptoms. The Commission would accept Dr Gaffney’s reports as proof of the late onset of symptoms.
The respondent submitted that Dr Gaffney held little to no concern regarding the applicant’s neck. Neck symptoms were not mentioned at all in her most recent report.
The delay in reporting symptoms and inconsistencies in the evidence all reflected unfavourably on the applicant’s case.
Dr Bokor took no history of a neck injury in first report. Dr Bokor considered the source of the applicant’s pain was the left upper limb albeit radiating to the neck. Dr Bokor’s evidence was consistent with an upper limb injury rather than a neck injury.
Dr Porteous did not explain the mechanism of injury to the neck. Without any attempt to explain causation, the Commission would not accept Dr Porteous’s opinion.
The respondent submitted that there had not been a properly made claim in respect of any of the future treatment expenses being claimed. No order ought to be made pursuant to s 60 of the 1987 Act. In the alternative, only a general order should be made.

Applicant’s submissions in reply

The applicant submitted that no serious credibility issue had been raised by the respondent. The applicant’s first statement dealt primarily with treatment hence need for the second statement.
Although Dr Gaffney referred to “new” symptoms this did not mean there were no symptoms previously. The cervical spine injections were paid for by insurer. If those injections caused further symptoms the new symptoms were part of the injury process and consequential to the original injury.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(iii)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
In the case of an injury pursuant to s 4(a) of the 1987 Act, the worker must also satisfy s 9A of the 1987 Act which provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f)    the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained an injury to his cervical spine in the event on 25 January 2021. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[1] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[1] [2008] NSWCA 246.
One of the primary challenges for the applicant in discharging his onus is the delay in the reporting of symptoms at his cervical spine. Although the applicant relies on a frank injury sustained in the original event, the first reference to any involvement of the cervical spine appears in a report from the applicant’s physiotherapist dated 10 March 2021, some six weeks later.
The applicant gave evidence that he told his physiotherapist about symptoms around his neck. The applicant has also submitted that the Commission should infer from the physiotherapist’s recording of findings on examination at the cervical spine that the applicant had complained of cervical spine symptoms. I am not, however, satisfied that the report of 10 March 2021, or the subsequent report on 25 March 2021, supports the applicant’s submission. Even if I were to draw such an inference, I am not satisfied that the physiotherapist’s reports are of material assistance to the applicant’s case. No relevant findings on examination were noted. The cervical spine was only noted to have a full range of motion in all directions.
The treating evidence does demonstrate that there was some initial confusion or uncertainty around the extent or nature of the applicant’s injury. The applicant’s general practitioner and his orthopaedic surgeon, Dr Nandapalan, focused initially on symptoms around the applicant’s left elbow. The applicant’s general practitioner on 29 January 2021 noted symptoms at the left elbow and referred the applicant for ultrasound investigation. Similarly, when he saw the applicant on 18 May 2021, Dr Nandapalan described significant pain at the anterior and posterior aspects of the left elbow.
Dr Nandapalan did note that the applicant remained quite disabled despite multiple physiotherapy sessions and a few months of nonoperative treatment. The symptoms reported included weakness of the upper limb, tenderness and limited range of motion. Dr Nandapalan identified a high-grade partial tear to the distal biceps tendon and triceps tendon for which he recommended surgical repair. Notably, Dr Nandapalan commented that the applicant’s injury was “very unusual”.
By August 2021, Dr Nandapalan noted some significant improvements in the applicant’s condition following surgical repair of the left distal biceps and left distal triceps. The applicant continued to complain, however, of intermittent paraesthesia to his ulnar distributed little fingers. At that time, Dr Nandapalan speculated that this was probably some ulnar nerve irritation from the surgery which would improve with time. Dr Nandapalan also referred to radiating shoulder pain for which he recommended an MRI investigation.
Ongoing symptoms at the left shoulder were noted in October 2021. Dr Nandapalan expressed the view that the applicant had injured his shoulder in the original event on 25 January 2021. Dr Nandapalan observed that the applicant was becoming frustrated with the lack of progress in his strength.
In January 2022, radiating pain at the shoulder was again observed. Dr Nandapalan did not think the pain sounded radiculopathic or neurological but sought a second opinion from the applicant’s physiotherapist and his sports physician, Dr Gaffney.
The applicant reported pain and numbness, which could be quite severe, to Dr Gaffney in February 2022. This led Dr Gaffney to consider the cervical spine as a source of symptoms. Dr Gaffney examined the applicant’s spine and, although full flexion and extension were observed, there was reduced lateral flexion to the right. Altered sensation over the C5 dermatome and weakness of the deltoids was observed. Dr Gaffney noted that injections to the applicant’s shoulder had not altered his symptoms at all. In the circumstances, Dr Gaffney said it would be prudent to organise MRI investigations of the cervical spine. Dr Gaffney noted that the applicant had previously demonstrated positive radial and ulnar nerve tension when she saw him in May 2021. At that time, Dr Gaffney thought this was due to the elbow pathology, however, she now speculated that this stemmed from some more proximal source.
The radiological investigations showed multilevel degenerative changes, particularly at C7/T1. Importantly, Dr Gaffney reported that the radiological findings, together with the clinical symptoms, were sufficient to warrant a trial of Lyrica to settle the neural component of the applicant’s pain.
Unfortunately, the applicant appears to have had an adverse reaction to that medication. As a result, Dr Gaffney arranged injections to the C6 and C7 nerve roots. Dr Gaffney said this was for diagnostic and, hopefully, therapeutic purposes.
The report from the injections indicated that although the C6 perineural injection increased the applicant’s pain, the injection to the left C7/T1 facet joint in fact significantly reduced the applicant’s pain.
Around the same time, the applicant was referred to shoulder specialist, Dr Kuo. In her referral to Dr Kuo, Dr Gaffney referred to the injections at C6 and C7 reducing the applicant’s symptoms although leaving the applicant with some new symptoms near the cervical spine. Although it is not clear whether Dr Gaffney recommended any further intervention at the cervical spine, that does not necessarily mean she thought that the cervical spine was not a source of symptoms.
In his report dated 19 July 2022, Dr Kuo commented that the injury on 25 January 2021 was associated with some cervical spine issues. Dr Kuo diagnosed both a left rotator cuff impingement and associated cervical spine disease. Dr Kuo referred to some significant improvement in symptoms with recent cervical traction.
This analysis of the treating evidence demonstrates that the applicant’s treating practitioners had some considerable difficulty diagnosing the applicant’s injury. The injury was multifaceted and involved multiple adjacent body parts including, the elbow, biceps and triceps and shoulder, as well as the scapula area. It appears that the doctors identified the cervical spine as a source of the applicant’s symptoms only after a process of elimination which included treatment for the elbow, surgical intervention at the biceps and triceps and treatment at the left shoulder.
Although I accept that the injection performed in March 2022 was reported to have caused some “new” symptoms, this does not mean that the applicant did not previously have other cervical spine symptoms. The “new symptoms” arose following injections which had been arranged for both diagnostic and therapeutic purposes at the cervical spine.
None of the doctors have identified any alternative or idiopathic cause for the applicant’s cervical spine symptoms. Although a detailed explanation of the causal mechanism has not been expressed by any of the treating doctors, their reports are consistent with symptoms having been precipitated by the injury on 25 January 2021.
This view of the treating evidence is broadly consistent with the view taken by Dr Bokor. Although Dr Bokor did not take a history of injury to the cervical spine, he found pain at the left shoulder radiating up into the neck and posterior scapula. He observed problems with weakness in the upper limb. Dr Bokor found decreased neck movement with pain and commented on the radiological investigations including the cervical spine MRI. Dr Bokor diagnosed residual neurogenic upper limb periscapular and neck pain. He suggested that the applicant had a neurogenic strain to the periscapular and cervical areas. Although there was no clear objective mechanical damage to those areas, Dr Bokor said the symptoms and clinical features all dated back to the original injury described.
In his most recent report, Dr Bokor described the mechanism of injury as involving traction and excessive load using the whole of the upper limb. Dr Bokor said it was reasonable to conclude that the original mechanism correlated with the applicant’s current condition. Dr Bokor appeared to accept that symptoms at the cervical spine qualified for permanent impairment assessment but declined to make that assessment, noting that he was not qualified to do so.
Dr Porteous was qualified to make an assessment of permanent impairment at the cervical spine and did so. Dr Porteous concluded that the applicant had aggravated or exacerbated pre-existing degenerative change at the cervical spine with referred pain into the superior shoulder.
Whilst the respondent quite properly acknowledged that the report from Dr Porteous did not include a detailed explanation of the causal relationship, I am satisfied that his report, read together with the report of Dr Bokor and the treating evidence, demonstrates, on the balance of probabilities, that the applicant sustained an injury in the nature of an aggravation of pre-existing degenerative change at the cervical spine in the original event on 25 January 2021.
In reaching this conclusion, I have considered the delay in a cervical spine injury being recorded by the applicant’s doctors or reported to the insurer. I have noted that the applicant did not mention any cervical spine injury in his first recent statement. I accept, however, that that statement was prepared in the context of a treatment dispute.

The relevance of delays was considered in Jowett v S & R Jowett Pty Ltd[2] where Snell DP commented:
“The extent to which a delay or inconsistency in reporting complaints is significant will depend on the facts of a case overall, the nature of the medical condition at issue and the medical evidence. The allegation regarding a fall at the hospital involved the occurrence of a specific incident and (on one version of it) the left shoulder being dislocated. These are matters that would ordinarily be immediately apparent, unlike, for example, a condition of gradual onset. In the circumstances, evidence of contemporaneous complaint would be of potential relevance to whether an incident occurred and its nature.”
[2] [2022] NSWPICPD 42.
In this case, while there was a delay in identifying a cervical spine injury, I am satisfied that the applicant did report symptoms consistent with a cervical spine injury from the outset. Given the unusual and multifaceted nature of his injury, involving multiple adjacent body parts, and the difficulty the applicant’s treating practitioners had in diagnosing his symptoms, I am not satisfied that the delay in this case is inconsistent with a frank injury in the event on 25 January 2021.
Weighing the evidence as a whole, I am satisfied that the applicant sustained an injury to his cervical spine in the course of employment on 25 January 2021 pursuant to s 4(a) of the 1987 Act. I am further satisfied for the purposes of s 9A of the 1987 Act, that the applicant’s employment was a substantial contributing factor to the injury.
In view of these findings, the cervical spine ought to be included in the body parts to be referred to a Medical Assessor for an assessment of the degree of permanent impairment.
I am further satisfied that it is appropriate to make an order, of a general nature, for the respondent to pay any reasonably necessary medical and related treatment expenses resulting from the injury, including to the applicant’s cervical spine. Although the applicant has sought various forms of treatment in the Application to Resolve a Dispute, I am not satisfied on the material before me that they are either currently recommended or the subject of a properly made claim.

[2024] NSWPIC 487

2 September 2024