Crockett v Hunts Motel Function Centre Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Crockett v Hunts Motel Function Centre Pty Ltd [2024] NSWPIC 150
APPLICANT:	Jayne Crockett
RESPONDENT:	Hunts Motel Function Centre Pty Ltd
MEMBER:	Parnel McAdam
DATE OF DECISION:	26 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Applicant suffered accepted injuries to arms; surgery and non-invasive treatment did not resolve symptoms; diagnosis of symptoms arising from neck made around 18 months after worker ceased employment; claim for fusion surgery in cervical spine; whether applicant suffered an injury; whether proposed treatment reasonably necessary; Held – applicant suffered an injury to her neck; delay in identifying cause due to investigations of symptoms in arms; surgery reasonably necessary as a result of injury.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her cervical spine, deemed to have occurred on 16 July 2019. 2. Proposed medical treatment, being C5/C6 and C6/C7 anterior cervical discectomy and fusion is reasonably necessary as a result of injury. 3. The respondent is to pay the applicant medical expenses compensation pursuant to s 60 of the Workers Compensation Act 1987 for the above claimed treatment.

STATEMENT OF REASONS

BACKGROUND

Ms Crockett (the applicant) was employed by Hunts Motel Function Centre Pty Ltd (the respondent) as a housekeeper for approximately 20 years. She worked at a motel at Liverpool for the respondent, performing general housekeeping work like cleaning, making beds, and laundry. The work was at times heavy, repetitive in nature, and busy.
Ms Crockett initially developed pain in her left elbow which caused her to cease work on 16 July 2019. Shortly after she noticed pain in her left forearm and hand and then the right elbow and into the right forearm and hand.
Over a period of time Ms Crockett has had investigations and surgical intervention in her elbows and arms, including lateral epicondylar release surgery, carpal tunnel release surgery, and various pharmacological and physiotherapy interventions.
Following a series of investigations, including diagnostic cortisone injections, Ms Crockett’s treating specialists suggested that her ongoing symptoms in her arms were stemming from the neck, with Dr Darwish ultimately recommending C5-C6 and C6-C7 anterior cervical discectomy and fusion surgery.
The respondent has denied liability for surgery on the basis that Ms Crockett did not suffer an injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether Ms Crockett suffered an injury to her cervical spine, being the aggravation, acceleration, exacerbation or deterioration in the course of employment where employment was the main contributing factor to the aggravation of that disease, or alternatively;
(b)    whether Ms Crockett suffers from a consequential condition in her cervical spine, and
(c)    whether proposed surgery is reasonably necessary as a result of the above injury.

PROCEDURE BEFORE THE PERSONAL INJURY 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attached documents, and
(b) Reply and attached documents.
During the course of the hearing, the applicant’s counsel helpfully took me through Ms Crockett’s treating history through the reports and clinical notes of her treating orthopaedic surgeon, Dr Herald, her treating general practitioner, Dr Sor, and treating neurosurgeon, Dr Darwish.
In essence, it is the applicant’s case that Ms Crockett’s team of treating doctors investigated various causes for her elbow and arm symptoms, including surgical intervention, before reaching the conclusion that Ms Crockett’s symptoms were associated with degenerative changes in her cervical spine that had been aggravated by her employment. Given this construction of the applicant’s case and the way it was presented at hearing, I will set out the relevant material in brief below.

Dr Herald

Ms Crockett has been treated by Dr Herald for her accepted injuries (to her elbows and arms) for an extensive period. There are numerous reports throughout the Application concerning her history of treatment. I do not intend to refer to every document in detail in the below summary but have read and considered all of them.
Dr Herald first saw Ms Crockett on 6 November 2019, following a referral from Dr Sor, the applicant’s treating general practitioner.[1] Dr Herald provides a report of same date focused on Ms Crockett’s left elbow with a diagnosis of lateral epicondylitis, and to some degree on the right. At this point there was no mention of the cervical spine.
[1] Referral on p 44 of the Application.
Dr Herald saw Ms Crockett again on 4 December 2019, recommending MRI scans of the right elbow and nerve conduction studies. At this point it is noted that her left elbow had not improved with conservative treatment and surgery was recommended.[2] That surgery occurred on 24 January 2020.[3]
[2] Page 60 of the Application.
[3] Page 70 of the Application.
On 1 July 2020 Ms Crockett returns to Dr Herald for review. At this point he performs an examination of her cervical spine noting: “On examination she has no tenderness of her cervical spine and full range of motion in her neck with a negative Spurling’s test”.[4] There was no suggestion of a connection between Ms Crockett’s ongoing symptoms and her cervical spine. A short time later, Dr Herald describes “numbness and pain in both hands and weakness in both hands”, although not attributing those symptoms to the cervical spine.[5]
[4] Page 193 of the Application.
[5] Page 199 of the Application.
On 2 September 2020, Dr Herald notes that Ms Crockett continues to have bilateral arm pain, changing from Endep to Lyrica. At this point he records “…increasing pain in both arms. She describes it as burning pain. She is also having weakness and difficulty gripping steering wheels and driving”. The diagnoses were “features of carpal tunnel syndrome and bilateral epicondylitis”.[6]
[6] Page 116 of the Application.
Right carpal tunnel surgery was performed on 16 October 2020.[7] Ms Crockett returned to see Dr Herald two weeks after the surgery.[8] He notes:
“Her tingling and numbness has improved but she still has some postoperative pain in her hand. Her elbows however are burning and painful. She was on Lyrica but had to stop that and since then her elbows have gotten worse.”
[7] Page 123 of the Application.
[8] Page 126 of the Application.
Dr Herald goes on to suggest that her pain is quite severe, recommending an MRI scan of the neck “to determine if there are any neurological reasons for the burning that she has in her arms”. This is the first point at which Dr Herald suggests the cervical spine may be involved as causative of symptoms in Ms Crockett’s arms.
Following the above recommendation, an MRI scan was performed on 10 November 2020,[9] with the following conclusion:
“There is mild-to-moderate foraminal narrowing at left C4/5, moderate-to-marked foraminal narrowing at C5/6 on the left and moderate on the right, and moderate-to-marked left foraminal narrowing at C6/7 and moderate foraminal narrowing on the right at this level. No significant central canal narrowing at any level.”
[9] Page 129 of the Application.
Dr Herald discusses these findings in a report to Dr Sor on 20 November 2020.[10] He recommends review by a neurosurgeon. Dr Herald sees her again on 16 December 2020 following her consultation with Dr Darwish, neurosurgeon, recommending that the left carpal tunnel release occur.[11] This surgery proceeded on 19 December 2020. Roughly two weeks after the surgery, Dr Herald sees Ms Crockett to remove sutures. In connection with the cervical spine, he notes “In the meantime I am awaiting the cortisone injections in her neck from Dr Darwish to assess the response with her elbow pain”.
[10] Page 134 of the Application.
[11] Page 137 of the Application.
It is from this point forward that Dr Herald’s treatment and reporting is mostly concerned with the neck as causative of Ms Crockett’s ongoing symptoms, particularly in her elbows.
On 5 February 2021, Dr Herald responds to a series of questions posed by a case manager at the insurer for the respondent.[12] In responding to a question about diagnosis, he provides:
“1. Cervical radiculopathy
2. Bilateral carpal tunnel syndrome
[12] Page 75 of the Application.
3. Bilateral epicondylitis”
He goes on to state that “she has an aggravation of underlying cervical spondylosis” and that “Dr Darwish is investigating the component of the pain arising from her c-spine”.
On 3 March 2021, Dr Herald supports the injections recommended by Dr Darwish, stating that “the only way to find out if the pain is coming from her neck would be with the cortisone injections recommended by Dr Darwish”.[13]
[13] Page 79 of the Application.
A period of time elapsed whilst Ms Crockett awaited performance of the cervical spine injections. On 11 August 2021, in a handwritten referral to Dr Darwish, Dr Herald records “Jayne has C6/C7 disc lesion and has taken left C7 perineural injection but has relief for only 3 days. Kindly advise regarding management”.[14] A report of consultation was prepared on the same date.[15]
[14] Page 97 of the Application.
[15] Page 100 of the Application.
Treatment and investigations in relation to the lateral epicondylitis continue. On 1 April 2022, Dr Hearld opines that “At this stage however I still feel her pain is coming mostly from her neck and I have suggested continuing treatment under Dr Darwish”.[16]
[16] Page 214 of the Application.
In a report of 10 February 2023, Dr Herald supports the surgery recommended by
Dr Darwish, stating:
“however I still feel most of her pain is coming from her neck not her elbows. I agree with Dr Darwish’s recommendations for the discectomies and decompressions, and I will see her again after she has had the surgery on her neck.”[17]
[17] Page 159 of the Application.

Dr Darwish

As can be seen from the above history, Dr Darwish was first engaged as a treating specialist on the referral of Dr Herald. Dr Darwish is a neurosurgeon.
Dr Darwish first saw Ms Crockett on 7 December 2020. In a report of the same date, he comments on an MRI scan of the cervical spine (discussed above at [18]) and recommends cortisone injections: “I am going to organise a diagnostic left C6 and C7 perineural cortisone injection. I will review her in 3 weeks after the injection”.[18]
[18] Page 718 of the Application.
After some delay, the injections eventually occurred in October of 2021. Dr Darwish records the outcome of those injections in a report dated 28 October 2021:[19]
“Further to my correspondence dated 7 December 2020, I reviewed Jayne in my Campbelltown rooms today. She had left C and C7 perineural cortisone injection which helped with her arm pain for three days which confirms that this is her pain generator. Today she complained of neck pain radiating to the left upper limb associated with paresthesia in the left forearm and left hand. She also complained of pain and swelling over the extensor pollicis longus.”
[19] Page 722 of the Application.
In the same report, Dr Darwish recommends left C5/C6 and C6/C7 foraminotomy and decompression of the left C6 and C7 nerve roots.
Surgery was formally requested from the respondent in a report dated 3 August 2023, amended to be C5-C6 and C6-C7 ACDF (two level) anterior cervical discectomy and fusion.[20]
[20] Page 30 of the Application.

Dr Sor

Dr David Sor is the applicant’s treating general practitioner. Extensive clinical notes are attached to the Application (traversing some 500 pages) dating back to 2013. Dr Sor’s clinical notes are not particularly comprehensive (consistent with his role as general practitioner) and he appears to largely have been guided by Dr Herald and Dr Darwish on the progress of Ms Crockett’s condition.
Dr Sor first records reference to the MRI arranged by Dr Darwish in a note of 11 December 2020. The records states:
“MRI showed foraminal stenosis and neural compression
seen dr darwish – organise cortisone injection – awaits approval”
On 15 January 2021, Dr Sor records “Dr Herald thought elbow pain is from the neck”. Eventually Ms Crockett underwent the cortisone injections as recommended by Dr Darwish. Following that procedure, she attended Dr Sor on 10 August 2021, who records:
“had cortisone injection
pain went after injection/par only lasted 2-3 days
see dr herald tomorrow
pain just as bad now.”[21]
[21] Page 289 of the Application.
Ms Crockett continued to see Dr Sor regularly concerning her symptoms. Nothing further of note appears in the clinical notes.

Dr Khong

Dr Peter Khong is a neurosurgeon who provides a report dated 30 November 2023 as an independent medical expert on behalf of the applicant.[22] He takes a history of her work with the respondent being “a lot of physical, heavy and repetitive manual labour”. He records that on the date of injury she had severe left sided elbow pain. He goes on to record “Ms Crockett states a few months later, she developed some left sided neck pain”. He provides the following diagnosis:
“The diagnosis is bilateral lateral elbow epicondylitis, bilateral carpal tunnel syndrome as well as possible neck pain and cervical radicular pain from exacerbation of degenerative changes in cervical spine, possibly at C5/6 and C6/7 where there is foraminal stenosis.”
[22] Page 26 of the Application.
Dr Khong goes on to provide the following commentary on causation:
“The heavy and repetitive nature and conditions of Ms Crockett’s work caused her to develop left elbow lateral epicondylitis. It also likely contributed to the development of neck pain and cervical radicular pain through an acceleration of the degenerative changes in her cervical spine. Altered postures due to her severe left elbow pain may have caused an exacerbation of these degenerative changes.”
Dr Khong agrees that the nature and conditions of Ms Crockett’s work caused an acceleration of the degenerative changes in her cervical spine. He supports the proposed surgery as being reasonably necessary:
“C5/6 and C6/7 anterior cervical discectomy and fusion aims to decompress the C6 and C7 nerves – this should help with her upper limb symptoms and a component of her neck pain.”
He also considers that the surgery is reasonably necessary as a result of injury.

Dr Sheehy

Dr Sheehy is a neurosurgeon and provides two reports for the respondent. The first is dated 4 April 2022.[23] Dr Sheehy takes a history of heavy work and reviewed the MRI dated 10 November 2020, as well as the report of Dr Darwish following the perineural cortisone injections.
[23] Page 24 of the Reply.
He provides a diagnosis of epicondylitis affecting the common extensor origins of both forearms. In relation to the cervical spine, he states:
“There were no radicular symptoms described at the time of the consultation and while there are symptoms of cervical grating and evidence of foraminal disease on the cervical MR scan she is not symptomatic from this foraminal compromise.”
He opines that whilst the MRI of the cervical spine reports foraminal disease, she is asymptomatic in that regard. In relation to the surgery recommended, Dr Sheehy states “The surgery to decompress cervical nerve roots will not be of assistance for the reasons outlined earlier in the report”. Dr Sheehy does not support the surgery.
Dr Sheehy provides a supplementary report dated 19 July 2022.[24] In that report Dr Sheehy opines that:
“She does experience noise moving her neck and has restricted neck movement however there was no history of injury to the neck on 16 July 2019, the problem was pain in the extensor origins and as such she has not sustained an injury to the cervical spine in the course of her employment at Hunts Liverpool.”
[24] Page 31 of the Reply.
With reference to a question about a pre-existing degenerative condition, he states:
“These degenerative changes may have been aggravated during her employment however there was no history of neck symptoms beyond grating when she attended for assessment. There was no history of an underlying aggravation of a degenerative change given at the time of the consultation.”

Dr Waller

Dr Craig Waller is an orthopaedic surgeon who provides two reports for the respondent. In his report dated 30 August 2022,[25] he takes a thorough history of the work Ms Crockett performed with the respondent and the treatment to Ms Crockett’s arms, as well as the MRI of the neck. During examination, Ms Crockett had some limitation of the cervical spine.
[25] Page 34 of the Reply.
Dr Waller diagnoses sever bilateral epicondylitis and cervical spondylosis that is not work related. He states that she does not require further treatment other than that she is currently receiving.
Dr Waller provides a further report dated 6 October 2023.[26] He discusses an MRI of the cervical spine dated 3 July 2023 and goes on to assess permanent impairment arising out of lateral epicondylitis in both elbows. In this report, Dr Waller does not discuss causation or the proposed surgery.

SUBMISSIONS
[26] Page 43 of the Reply.

The parties made oral submissions during the hearing. I do not intend to repeat those submissions in full. They were recorded.

Applicant’s submissions

As discussed above, counsel for the applicant spent some time taking me through the medical evidence in support of Ms Crockett’s case, particularly the various reports of Dr Herald, and how they connected to the other treating doctors being Dr Darwish and Dr Sor.
With reference to the clinical notes of Dr Sor, it was noted that they were not particularly detailed but that I should treat them with the consideration outlined in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 and Mason v Demasi [2009] NSWCA 227 – that Dr Sor was a busy practitioner, and his records reflect that.
The path set out by the applicant in following the treating history of Ms Crockett by her various practitioners was, it was submitted, to support the applicant’s primary submission, that it took some time for the treaters to ultimately understand that her cervical spine was her main pain generator. The applicant submits that through the continued investigations, including the injections organised by Dr Darwish, the earlier suspicion of Dr Herald that the cause of Ms Crockett’s pain was the cervical spine was confirmed.
The injections performed at the request of Dr Darwish provided relief to the applicant but only for three days, confirming the clinical picture and consistent with the radiological evidence earlier arranged.
The applicant also addressed the report of Dr Sheehy and was critical of the history taken concerning injury or the extent of symptoms. The applicant submits that Dr Sheehy does not deal with the proper history as it occurred and reaches a conclusion that there were no true radicular symptoms, which is inconsistent with the treating orthopaedic surgeon and what had been shown by the cortisone injections. The applicant submits that I would have grave concerns in accepting the basis of the opinion formed by the doctor, as he does not explain why it is that the applicant continues to have referred symptoms that have not responded to treatment, nor why her treating specialists have reached the conclusion that the symptoms have been caused by her neck.

The applicant contends that Dr Sheehy’s conclusion that the surgery is not related or of benefit could not be any other conclusion when he takes no history of symptoms, but that history is incorrect.
In relation to the second report of Dr Sheehy, again the applicant submits that I should not accept that opinion on the basis that it was not made in a fair climate in the Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 sense. Whether or not the applicant describes injury to the neck is irrelevant as she attends her doctors to find out what is going on.
Based on the history set out through the treatment providers the applicant’s case is that she aggravated degenerative change in her spine, the aggravation of which employment was the main contributing factor. The applicant submits that the law in that regard is not complicated with reference to general leading authorities such as Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 and AV v AW [2020] NSWWCCPD 9 at [68].
The applicant briefly referred to an alternative construction that Ms Crockett suffered a consequential condition based on overuse/positioning caused by her elbow injuries, relying on the report of Dr Khong.
With regard to the question of reasonably necessary, the applicant submits that when one works through the relevant case law as set out in Diab v NRMA Ltd [2014] NSWWCCPD 72 and others, it is clear that the applicant has pursued multiple treatment options which have been unsuccessful, and the hope for this surgery is that there will be a resolution of pain, which has been diagnostically confirmed through the cortisone injections previously provided.

Respondent’s submissions

The respondent’s counsel commenced submissions by summarising the respondent’s position. Dr Waller concludes that Ms Crockett has cervical spondylosis that is not work related. The claim was noted to be for a significant operation and was said to be one that one would not rush into, particularly noting the applicant’s long history of failed treatment. The respondent submits that the suggestion for the operation was based on temporary relief from injections, noting that the applicant continues to complain of pain. If those symptoms are correct then it’s not surprising that she wants to proceed with surgery, but the question is are they related to the work that she did with the respondent.
The respondent notes that Ms Crockett’s last day of work was 16 July 2019, but the complaints did not become manifest for some time after that. The respondent referred to the large number of investigations and complaints and submits that one would have to concede that Dr Sor’s notes are not comprehensive. No reference is made to neck pain or radiated pain for around 18 months after she ceased work, the first such reference being recorded in a clinical note on 15 January 2021. Based on this, there is nothing to suggest that there was any neck symptomatology with referred pain concurrent with her employment or shortly after her employment ceased.
The respondent conceded that the duties undertaken by Ms Crockett were heavy, but what was not conceded was that the cervical spondylosis was aggravated by work, with reference to the report of Dr Sheehy.
The respondent submits that Dr Herald does not record spontaneous complaints of neck pain, and that trying to identify the first complaints of neck pain is difficult. What Dr Herald did in October of 2020 was to refer Ms Crockett for an MRI scan out of desperation, but not in response to any particular complaints of neck pain.
The respondent submits that the degenerative change can’t be denied – it is there. The question is - has it been exacerbated by her work in the absence of complaints for 18 months after she ceased employment, with no consistency of complaints in the interim as far as neck pain and radiated pain go. No relevant complaints were recorded until the report of Dr Darwish on 7 December 2020. If those degenerative changes were aggravated in Ms Crockett’s employment – in what way were they aggravated? The respondent submits that not with symptoms in her neck, which one would expect at the time she was working or shortly thereafter.
In terms of the treating opinion of Dr Herald, the respondent submits that this is something he has not engaged with. Dr Darwish has not given opinion and has not explained how the need for surgery is related to employment and Dr Herald, doing the best he can, has explained that the symptoms throughout have been manifest through multiple causes. Which means that you’re left with Dr Khong.
The respondent was critical of a number of aspects of Dr Khong’s report. Firstly, he records that a few months after ceasing work she developed some left sided neck pain, which is not consistent with other history. Secondly, Dr Khong does not link employment to the aggravation of degenerative changes, but rather puts it as “possible” or “likely”. This, it was submitted, raises the problem of main contributing factor which is the applicant’s onus to prove. The respondent submits that Dr Khong is far from convincing.
On the above basis, one is led to Dr Sheehy. The respondent submits that the history recorded isn’t made up – it is the history given by Ms Crockett. There was no history of underlying neck symptoms beyond grating at the assessment, and no history of aggravation of degenerative changes at the time of consultation.
The respondent submits that absent a contemporaneous manifestation of symptoms, it can’t be said that the degenerative changes have been aggravated symptomatically.
The respondent also submits that the alternatively pleaded case of a consequential condition is only postulated by Dr Khong as a throwaway line and is not supported on any evidentiary basis.

Applicant in response

The applicant provided brief submissions in response.
The applicant submits that the respondent’s case seems to be that there needs to be a localised complaint of pain but that is not the case at all.
In respect of the criticism of Dr Herald, the applicant submits that he performed surgery to Ms Crockett, and did not get the expected response. As a result, he continued to investigate, and as it turns out, the symptoms presenting were consistent with the cervical aggravation.

DISCUSSION AND FINDINGS

The claim made in these proceedings is for proposed fusion surgery in the cervical spine. The liability issues are twofold:
(a) whether Ms Crockett suffered an injury to her cervical spine, being the aggravation, acceleration, exacerbation or deterioration in the course of employment where employment was the main contributing factor to the aggravation of that disease (or the alternatively pleaded consequential condition in the cervical spine), and
(b) whether surgery is reasonably necessary as a result of that injury.
I will first turn to the question of injury, as if I do not find in favour of the applicant in that cause, the question of surgery will fall away.

Injury and main contributing factor

I have set out in detail the medical evidence relied on by the parties above. Given the applicant’s case, based on the treatment undertaken by Ms Crockett on her arms which ultimately led to the conclusion that pain was arising out of the cervical spine, I have analysed that material in some detail.
There is no dispute in this case about the type of work performed by Ms Crockett as a housekeeper or that it would be considered to be heavy work. The description of her duties is set out in her statement[27] and is supported in the statement of the applicant’s sister.[28] This history has been consistently recorded throughout the medical evidence.
[27] Page 2 of the Application.
[28] Page 6 of the Application.
At the outset, the focus of Ms Crockett’s treating practitioners was on her elbows and the forearms (manifesting as carpal tunnel syndrome). The first presentation of the applicant’s symptoms in her arms is recorded in the clinical note of Dr Sor of 23 July 2019.
Dr Herald first became involved in Ms Crockett’s treatment in November 2019. His focus, consistent with the referral and presentation of symptoms previously made to Dr Sor, was on Ms Crockett’s elbows and “altered sensation down her upper limb”. From the point of that initial consultation until 28 October 2020, Dr Herald performs a number of surgical procedures focussed on Ms Crockett’s lateral epicondylitis and carpal tunnel syndrome, now occurring in both arms.
These procedures had some benefit, but the records of Dr Herald show continuing issues in her arms at various points. On 28 October 2020, Dr Herald records that “tingling and numbness has improved… her elbows however are burning and painful”. Dr Herald notes that “her elbow tendon tears are healing” but goes on to suggest an MRI scan of the neck.
This attendance on Dr Herald and subsequent report represents a crucial turning point in the treatment of Ms Crockett and the strategy employed by her treating practitioners. One can almost envision the proverbial light going off in Dr Herald’s head, after performing what he feels has been a successful surgery which has resulted in a manifestation of burning and pain in a related area of the body.
From this point Dr Darwish is involved in the treatment of Ms Crockett. He requests diagnostic perineural cortisone injections on 7 December 2020, but these did not occur for an extensive period, and Dr Darwish reports on the outcome on 28 October 2021.
The respondent’s submissions repeatedly addressed the lack of complaint of neck pain for some 18 months after Ms Crockett ceased employment. True, it is alleged by the applicant that she has suffered an injury to her cervical spine. However, the applicant’s case is that the aggravation of a disease she suffered manifested in symptoms referred to her arms. That case is consistent with the medical evidence provided and the treatment and diagnostic course adopted by Dr Herald and Dr Darwish.
On this basis, the respondent submitted that Dr Darwish first noted neck pain in his report of 28 October 2021. I do not think that is fatal to the applicant’s case or even particularly pertinent. Dr Darwish first saw the applicant on 7 December 2020, and he records that Ms Crockett “continues to complain of pain down the left arm and in both elbows more on the left side”. He reviews the MRI of the cervical spine and organises the diagnostic injections. This is consistent with and injury to the cervical spine manifesting in symptoms referred to the arms.
This is not a case, as is common in workers compensation, where a body part spontaneously develops symptoms some time after a worker ceases employment with no apparent contribution from work. Here, the applicant’s treating doctors, particularly Dr Herald, were presented with a complex array of symptoms which did not result in any apparent resolution despite invasive interventions designed to do such. This is consistent with how the applicant put the case in submissions, which was summarised as being that “the applicant’s treating providers took some time to diagnostically work their way through what exactly was going on before reach the conclusion that the cervical spine was contributing as the main pain generator”.
The applicant relies on the definition of injury contained in s 4(b)(ii) of the 1987 Act – the aggravation etc. of a disease, where employment was the main contributing factor to that aggravation. The applicant finds support for this conclusion in the report of Dr Khong, who states that “the nature and conditions of her work have caused an acceleration of the degenerative changes in her cervical spine”.
I accept, as submitted by the respondent, that I must treat the report of Dr Khong with some caution. He expresses his reasons at times in a less forceful or robust way than one would appreciate, particularly in relation to the cervical spine. For example:
“The heavy and repetitive nature and conditions of Ms Crockett’s work caused her to develop left elbow lateral epicondylitis. It also likely contributed to the development of neck pain and cervical radicular pain through an acceleration of the degenerative changes in her cervical spine.”
Here, the use of “likely contributed” to the development of cervical radicular pain is a tempered opinion and does not expressly use the words “main contributing factor”. He does, however, go on to say that the nature and conditions of employment cause an acceleration of degenerative change in her cervical spine as quoted above at [84], consistent with the statutory language set out in s 4(b)(ii) of the 1987 Act. He has also taken a thorough and consistent history of the kind of work performed by Ms Crockett and the interventions at the hands of her treating doctors over a period of time in attempt to treat the symptoms experienced in her arms.
When read with the treating material of Dr Darwish and Dr Herald, I am satisfied that I am able to accept the opinion of Dr Khong.
The respondent relied on the opinions of Drs Sheehy and Waller. The issue I have with accepting the opinion of Dr Sheehy is that he bases his opinion on the lack of radicular symptoms at the time of consultation. Whilst that may have been the case, the examination history he records in his report of 4 April 2022 is remarkably brief and is inconsistent with Ms Crockett’s repeated and ongoing complaints of pain to her treating specialists.
As the applicant submits, Dr Sheehy accepts that the MRI shows compromise, but he does not explain why Ms Crockett continues to complain of referred symptoms from the neck and why her treating doctors reach a different conclusion about the cause of these ongoing symptoms.
In Dr Sheehy’s second report, he does take a history of “noise moving her neck” but states that “there was no history of injury to the neck on 16 July 2019”. This statement appears to be on the basis that there was no history of “frank” or “personal” injury to the neck on that date, which is not the applicant’s case. He goes on to accept that the changes in the cervical spine MRI may have been present on 16 July 2019 and on the balance of probabilities these degenerative changes “would have been present prior to 16 July 2019”. He opines that “these degenerative changes may have been aggravated during her employment” but rejects that finding as there was no history of neck symptoms beyond grating when she attended for assessment.
I have found the path of reasoning employed by Dr Sheehy difficult to follow. Based on the above he appears to accept that there were degenerative changes present in Ms Crockett’s spine before she ceased employment. He accepts that the degenerative changes may have been aggravated by her employment, but then does not accept the conclusion that an aggravation disease injury occurred on the basis of a lack of neck symptoms when she was examined earlier. No alternative for the presence of Ms Crockett’s ongoing symptoms in her arms was postulated.
I prefer the report of Dr Khong to that of Dr Sheehy.
Dr Waller diagnoses cervical spondylosis that is not work related in his report of 30 August 2022. However, he fails to explain his conclusion in that regard and why it differs from the applicant’s treating doctors. Again, I prefer the opinion of Dr Khong supported by the applicant’s treating doctors.
For the above reasons, I am satisfied that Ms Crockett suffered an injury, being the aggravation of pre-existing cervical spondylosis, and employment was the main contributing factor to that aggravation. No other cause (other than simple degenerative change) has been presented as a contributing factor to the aggravation of Ms Crockett’s disease.
Given that finding, it is not necessary for me to determine the alternate proposition put forward by the applicant, that she suffered a consequential condition as a result of overuse/positioning.

Reasonably necessary as a result of injury

The respondent submits that the suggestion for operation is based on two things:
(a) the temporary resolution of symptoms of only two days, and
(b) the ongoing complaint of symptoms radiating to both upper limbs and paraesthesia.
The respondent then goes on to question whether the symptoms are as a result of the work that the applicant was doing prior to her last day of work.
In relation to the first suggestion, as was made clear in the reports of Dr Hearld and particularly the report of Dr Darwish of 7 December 2020, these are “diagnostic” injections. That is, they were never intended to be of long term benefit but were intended to determine the source of Ms Crockett’s ongoing pain.
In relation to the second point, I have determined above that Ms Crockett suffered an injury arising out of her employment with the respondent, the aggravation to which employment was the main contributing factor.
It is my view that the ongoing complaints of pain and sensation loss in the applicant’s arms have been consistently reported by Ms Crockett to her team of treating practitioners, but that it was not diagnostically determined to be arising from her neck and connected to her employment until various surgical interventions in her arms and elbows were pursued without full resolution of those symptoms.
The applicant referred to the commonly cited cases on the question of reasonably necessary treatment, in particular the authority of Diab. I accept that the legal question to be determined is uncontroversial. The parties’ submissions dealt mostly with the question of injury and there is no strong evidence to suggest that there is a real dispute as to “reasonably necessary” or the causation question posed by “as a result of injury”, although I accept that the respondent has put this issue in dispute.
I do note that the respondent made some submissions about the seriousness of the surgery proposed and the previous surgeries undertaken which had been only moderately successful. This is a reasonably made submission and I acknowledge that the surgery proposed by the applicant’s treating doctors is complicated and does not come without risk. However, that is a matter for the applicant and her doctors to determine.
As the applicant submits, Ms Crockett has been investigated comprehensively. Diagnostic procedures have been performed to isolate the cause of ongoing pain in her arms. Surgery and non-invasive treatments have been attempted with little success. These other modes of treatment have been attempted and the symptoms have not resolved, which has led to the recommendation of surgery supported by Dr Darwish and Dr Herald.
Dr Khong provides support for the applicant’s claim for surgery and agrees that it is a result of her injury. I am satisfied that the injury suffered by the applicant, being an aggravation of degenerative change, has materially contributed to the need for her surgery, and the surgery is as a result of her injury.
It is also noted that the scope of the surgery changed somewhat between the initial request made on 28 October 2021 (foraminotomy and decompression) and the updated request of 3 August 2023, which is for a C5/C6 and C6/C7 anterior cervical discectomy and fusion. There is no explanation for the change in the reports of Dr Darwish but I do not believe that fatal to the applicant’s case. Some two years elapsed between the two requests and the nature of Ms Crockett’s symptoms may have progressed in that time. Dr Darwish may have had cause to revise based on her continued assessments with Dr Herald. The dispute before me concerns the surgery proposed on 3 August 2023, as claimed in the Application.
In those circumstances, I am satisfied that the surgery proposed is reasonably necessary as a result of the injury to Ms Crockett’s spine, deemed to have occurred on 16 July 2019.

SUMMARY

I am satisfied that the applicant suffered an injury in the course of employment with the respondent. She has requested surgery in the form of a C5/C6 and C6/C7 anterior cervical discectomy and fusion. I am satisfied that the surgery proposed by Dr Darwish is reasonably necessary as a result of injury and make the above awards consistent with that finding.

[2024] NSWPIC 150

26 March 2024