Hill v The A2 Milk Company (Australia) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hill v The A2 Milk Company (Australia) Pty Ltd [2024] NSWPIC 444
APPLICANT:	Graham Hill
RESPONDENT:	The A2 Milk Company (Australia) Pty Ltd
MEMBER:	Glenn Capel
DATE OF DECISION:	16 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for medical treatment in respect of disputed consequential condition; insurer disputed that there was sufficient evidence to support the worker’s claim, even though the worker’s qualified specialist provided a proper explanation of the condition and its mechanism; insurer’s medical expert supported the applicant’s claim and withheld the report; insurer failed to pro-actively review the dispute when it obtained its own independent medical report as indicated to the worker and it failed to accept the claim; insurer declined to participate in discussions in the Commission to resolve the claim, in the knowledge that its own specialist supported the applicant; insurer failed to comply with SIRA’s claims’ management guides and Practice Guidelines, the Model Litigant Policy and the guiding principle in section 42 of the Personal Injury CommissionAct 2020; Kooragang Cement Pty Ltd v Bates, Kumar v Royal Comfort Bedding Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service and Diab v NRMA Ltd discussed and applied; Held – worker developed a consequential condition in his cervical spine as a result of accepted shoulder injuries; proposed consultation with specialist reasonably necessary; order for medical expenses; respondent to advise Commission why the insurer’s conduct should not be referred to icare.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his shoulders arising out of or in the course of his employment on 5 March 2022. 2. The applicant developed a consequential condition in his cervical spine as a result of the injury sustained to his shoulders on 5 March 2022. The Commission orders: 3. The respondent to pay the applicant’s reasonably necessary medical expenses in respect of his cervical spine pursuant to s 60 of the Workers Compensation Act 1987. 4. The respondent is to advise the Commission by close of business on 28 August 2024 why Employer’s Mutual Ltd’s conduct should not be referred to icare.

STATEMENT OF REASONS

BACKGROUND

Graham Hill (the applicant) is 57 years old and was employed by The A2 Milk Company (Australia) Pty Ltd (the respondent) as a machine operator.
There is no dispute that the applicant injured his shoulders on 5 March 2022. Liability was accepted by Employers Mutual Ltd (the insurer) and payments of compensation continue to be paid following a Work Capacity Decision issued on 1 May 2024.
On 23 November 2023, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing that the applicant had suffered an injury to or a consequential condition in his cervical spine as a result of the injury sustained to his shoulders on 5 March 2022.
The insurer disputed that the applicant’s employment was a substantial or the main contributing factor to his injury or an aggravation, acceleration, exacerbation or deterioration of a disease injury. It indicated that it was not satisfied that there was sufficient evidence to support the claim, and cited ss 4, 4(b), 9A, 33, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act).
On 15 March 2024, the insurer reviewed its decision pursuant to s 287A of the 1998 Act and confirmed it maintained its position, noting that the precise mechanism in respect of the injury to or consequential condition in the cervical spine was unclear.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (Commission) on 27 June 2024, and amended at the arbitration hearing, the applicant claims medical expenses in respect of his cervical spine due to the accepted injury sustained to his shoulders on 5 March 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Mr Ty Hickey of counsel appeared on behalf of the applicant, instructed by Ms Panju, solicitor. Mr Goodridge of counsel appeared on behalf of the respondent, instructed by
Ms Flanagan, solicitor. Mr Brunner-Evans of the insurer was in attendance.
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 developed a consequential condition in his cervical spine as a result of the injury sustained to his shoulders on 5 March 2022, and
(b) the respondent’s liability for medical expenses in respect of the applicant’s cervical spine – s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents, attaching a copy of the report of
Dr Bentivoglio dated 9 May 2024, filed by the applicant on 14 August 2024.

Oral evidence

Neither party sought leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Given that the current dispute does not include a claim for weekly compensation, I propose to focus my summary on the evidence that relates to the real issues in dispute.

Applicant’s statements

The applicant provided a statement on 6 February 2024. He described the nature of his duties, the circumstances of injury to his shoulders on 5 March 2022 and his subsequent treatment, but he did not explain how he injured his cervical spine. He complained of numbness in his fingers on his right side and pins and needles which caused his neck pain to become intense and distressing. He had throbbing pain and stiffness in his neck and these impacted on his day to day activities.
In a statement dated 27 June 2024, the applicant confirmed that he had stiffness, persistent soreness, and pain in his neck together with pins and needles in his right fingers. He was unsure whether his neck pain was due to his shoulder injuries or the nature and conditions of the repetitive and heavy work he performed at the respondent. He claimed that at times his neck pain was unbearable and he was taking Panadeine Forte. He wanted to see Dr Darwish for treatment.

Reports and certificates of Dr Elafifi

In a letter of referral to Associate Professor Raniga dated 28 March 2022, Dr Elafifi requested an opinion and management of the applicant’s shoulder tears. He included a history of the applicant’s health issues. There was no reference to any prior neck injury or current condition.
Dr Elafifi reported on 8 February 2024. He confirmed that he had been treating the applicant for his shoulder injury and after surgery, he began to experience paraesthesia in his right upper limb.
Dr Elafifi diagnosed full thickness tears of both rotator cuffs, bilateral subscapularis tears and a new right tear of the infraspinatus tendon. He confirmed that the applicant had multilevel degenerative changes in his cervical spine with severe narrowing, loss of disc height and osteophytic lipping at C4/5 and C5/6.
Dr Elafifi explained that the applicant’s neck disease and symptoms were referred to as “wear and tear injury”, and he agreed that the applicant’s employment could have contributed to the disease. He commented that due to his bilateral shoulder injuries, compensating movements by the neck would accelerate and worsen the neck degenerative disease.
Dr Elafifi stated that the applicant’s employment was the main contributing factor to the development or aggravation, acceleration, exacerbation and deterioration of the disease process in the applicant’s cervical spine.
Dr Elafifi’s certificates contain a history of consultations. They refer to a date of injury of
5 March 2022. It is noted at the consultation on 10 October 2023 that Associate Professor Raniga referred the applicant for an MRI scan of his cervical spine and left shoulder.

Reports and certificates of Dr Kako

Dr Kako reported on 13 May 2024. He first saw the applicant on 19 February 2024 and he noted a consistent history of the shoulder injuries and treatment but he did not record any injury or consequential condition in the neck. He noted that the applicant had considerable pain in the shoulders and neck.
Dr Kako diagnosed tears in both shoulders and moderate multilevel degenerative changes in the applicant’s cervical spine. He stated that the applicant’s employment was a substantial contributing factor to his injuries.
The certificates issued by Dr Kako refer full thickness bilateral tears of the supraspinatus and subscapularis tendons and moderate level degenerative changes in the cervical spine with severe C4/5 and C5/6 neural exit canal narrowing, loss of disc height and osteophytic lipping.

Reports and clinical notes of Associate Professor Raniga

Associate Professor Raniga reported on 8 April 2022. He noted that the applicant had injured his right shoulder on 4 March 2022. He did not record any left shoulder symptoms and the applicant denied having any neck pain or radiculopathy.
The Associate Professor diagnosed a probable traumatic massive rotator cuff tear and referred the applicant for an MRI scan and X-rays on 10 May 2022. These showed full thickness tears of the supraspinatus, subscapularis and infraspinatus tendons with retraction, together with osteoarthritis.
In reports dated 4 November 2022 and 17 March 2023, Associate Professor Raniga advised that the applicant had a right traumatic rotator cuff tear involving the supraspinatus, subscapularis and infraspinatus tendons. He considered that the applicant had achieved a good outcome from the operation.
The notes of Associate Professor Raniga are difficult to understand. There seems to be missing pages from reports dictated by him. The Associate Professor confirmed that the applicant had cervical spine disease but did not comment on causation.

Diagnostic tests

An ultrasound taken on 26 September 2023 showed a full thickness retracted tear in the right supraspinatus tendon and tears of the subscapularis and infraspinatus tendons, consistent with a retearing post-surgery. There were also tears of the left supraspinatus and subscapularis tendons.
X-rays of the applicant’s cervical spine on 17 October 2023 showed degenerative disease from C3 to C6 with disc space narrowing and mild osteophytic lipping, with encroachment on the exit nerve foramen at C4/5 and C5/6.
An MRI scan taken on 17 October 2023 showed multilevel degenerative changes with severe bilateral C4/5 and C5/6 neural exit canal narrowing with loss of disc height and osteophytic lipping. There was a rupture of the previous right rotator cuff repair involving the supraspinatus, subscapularis and infraspinatus, tears of the left supraspinatus and subscapularis tendons, and bilateral AC joint degenerative changes.

Reports of Dr Herald

Dr Herald reported on 6 September 2023. He obtained a consistent history of the injury to the applicant’s shoulders and subsequent treatment. He was referred to Associate Professor Raniga, who organised an MRI scan that confirmed a large tear of the rotator cuff. The doctor performed surgery on 9 August 2022, but the applicant continued to experience pain and weakness in the shoulder. There was no history of any neck symptoms.
Dr Herald diagnosed bilateral massive rotator cuff tears as a consequence of a frank injury on 5 March 2022 and he indicated that the applicant was likely to develop cuff tear arthropathy. A reverse total shoulder replacement would most likely be required in the future.
Dr Herald reported again on 14 February 2024. He obtained a similar history but noted that;
“Following the surgery on his shoulder, he started developing secondary neck pain. In addition to the neck pain, he was also starting to get numbness and tingling to his right hand, including down to his right index finger. He was also having bilateral shoulder pain. He went back to his GP complaining of bilateral shoulder pain and neck pain.”[1]
[1] Application, p 39.
Dr Herald recorded that the applicant had further ultrasounds of his shoulders that showed bilateral complete full-thickness rotator cuff tears, which suggested that the right shoulder surgery had been unsuccessful. X-rays and an MRI scan of the applicant’s cervical spine in October 2023 confirmed multilevel degenerative changes with mild spinal canal narrowing associated with flattening of the spinal cord, particularly at the C4/5 level. On examination, he observed tenderness and marked stiffness in the applicant’s cervical spine and a restricted range of movement.
Dr Herald diagnosed a failed repair of the right rotator cuff with developing secondary cuff tear arthropathy and a left shoulder massive rotator cuff tear. The applicant had suffered a soft tissue injury to the cervical spine with aggravation of the underlying cervical spondylosis and canal stenosis with right upper limb radiculopathic symptoms.
Dr Herald commented that the applicant had pre-existing cervical spondylosis and a secondary aggravation of the underlying spondylosis and right upper limb radiculopathy secondary to his bilateral rotator cuff tears. He advised that the applicant’s employment was a main contributing factor to the aggravation and his condition.
Dr Herald explained that with the massive rotator cuff tears, the applicant had “hitching which is causing extra pressure on his neck from both sides. This has aggravated his underlying cervical spondylosis and was particularly worse after his shoulder surgery”.[2]
[2] Application, p 41.
Finally, in a report dated 24 April 2024, Dr Herald stated that he did not have access to the imaging of the cervical spine but commented that;
“the records do reveal there to have been a cervical spine injury with degenerative changes particularly in the C4/5 level and flattening of the cord at that level. This gives an indication of there having been some pre-existing cervical spondylosis which has subsequently been aggravated by the shoulder surgery as his symptoms developed following his shoulder surgery on 9 August 2022. That would determine the cervical spine injury is secondary or consequential to the shoulder surgery and shoulder injuries.”[3]
[3] Application, p 42.
Dr Herald concluded by saying that the applicant’s neck symptoms developed as a result of the nature and conditions of the applicant’s employment as the symptoms had developed secondary to his shoulder surgery.

Report of Dr Bentivoglio

Dr Bentivoglio reported on 9 May 2024. He recorded that the applicant had experienced gradual neck pain prior to his shoulder injury on 5 March 2022, and “the neck pain became more significant after the surgery on his shoulder on 10 August 2022 and this pain has been associated with numbness in his fingers in both hands”.[4] The doctor was provided with the imaging and noted the MRI scan findings.
[4] AALD, p 3
Dr Bentivoglio diagnosed significant pre-existing multilevel degenerative changes in the cervical spine predominantly from C4/5 to C5/6 with bilateral stenosis secondary to uncovertebral joint disease. He stated that the applicant’s presentation was consistent with multilevel degenerative disease secondary to many years of heavy manual labour. There was no evidence of neuropathic arm pain or radiculopathy.
Dr Bentivoglio stated that the applicant’s neck pain was not consequential to his bilateral shoulder injury and he was not satisfied that the injury on 5 March 2022 significantly exacerbated the cervical condition. He noted that the applicant had pre-existing multilevel disease that was slowly deteriorating and he had experienced neck pain for three years whilst he was working for the respondent.
Dr Bentivoglio agreed that the applicant injured his shoulders, but the degenerative disease was more related to the progression of the disease rather than the work injury on
5 March 2022. He did not believe that the cervical spine condition was consequential but indicated that the condition became more significant after the shoulder surgery, so there may have been some exacerbation of the pre-existing degenerative disease. This was the only way that the shoulder could have caused an exacerbation of the disease.

SUBMISSIONS

Respondent’s submissions

Mr Goodridge submits that in his first statement, the applicant referred to injuring his shoulders in the incident on 5 March 2022. The applicant described his neck symptoms and disabilities in his second statement, but that does not mean that there was a causal connection between his neck and the shoulder injury.
Mr Goodridge submits that the first reference to the applicant’s neck was in October 2023 to Associate Professor Raniga and in the certificate of Dr Elafifi in November 2023. The X-rays and MRI scan were taken on 17 October 2023, shortly before the first complaint of neck problems. Dr Elafifi referred to “wear and tear”, and there was no suggestion of a consequential condition.
Mr Goodridge submits that Dr Herald only reported a history of shoulder injuries in his initial report. In his second report, he noted a history that following the shoulder surgery, the applicant started to develop secondary neck pain, so he was seeking to relate the neck symptoms to the surgery. However, there is no evidence to support this. This suggests that there was very little time between the surgery and the onset of neck pain and the doctor understood that the symptoms came on shortly after the operation.
Mr Goodridge submits that Dr Herald’s response to question 5 shows that he links the operation with the onset of neck symptoms, but this can only be read as a temporal connection. He seems to be speaking in a generic sense that hitching can cause problems in the neck, but he does not seem to say in any logical way how there was an aggravation, what was the mechanism of the aggravation or what was the actual aggravation.
Mr Goodridge submits that in his final report, Dr Herald referred to records having revealed a cervical spine injury with degenerative changes, but there is no evidence that the applicant suffered a neck injury beforehand. His reference to symptoms developing following the shoulder surgery must mean shortly after the operation. He did not express a confident opinion regarding the need for neck surgery.
Mr Goodridge submits that Dr Elafifi referred to a “wear and tear injury” and his employment could have contributed to the disease. This opinion is consistent with a nature and conditions injury, but he also said that due to the shoulder injuries, compensatory neck movements would accelerate and worsen the degenerative disease.
Mr Goodridge submits that the MRI scan showed osteophytes which are developmental over time. It is difficult to say how the operation caused this pathology.
Mr Goodridge submits that in May 2024, Dr Kako reported the presence of degenerative changes in the applicant’s neck and clearly these changes were substantial by that stage, but symptoms were not reported before October 2023.
Mr Goodridge submits that Dr Bentivoglio reported the gradual onset of neck pain before the injury on 5 March 2022. There is no contemporaneous evidence to support this history and there was no mention of any symptoms in the applicant’s neck in any of the reports before October 2023.
Mr Goodridge submits that Dr Bentivoglio noted that the neck symptoms became more significant after the operation. He did not appear to be aware that the first report of neck pain was in October 2023, more than one year after the operation.

Mr Goodridge submits that Dr Bentivoglio diagnosed pre-existing degenerative changes in the applicant’s cervical spine and the applicant’s presentation was consistent with someone who has degenerative disease in his cervical spine secondary to many years of manual work. However, he was provided with an incorrect history.
Mr Goodridge submits that Dr Bentivoglio did not believe that the applicant’s neck injury was consequential to the shoulder injury sustained on 5 March 2022 or that the work injury significantly exacerbated the cervical condition. The doctor believed that the cervical spine condition became more significant after the surgery and in some way may have exacerbated the pre-existing disease. However Dr Bentivoglio accepted that there was a condition in the neck for years prior to the shoulder injury and he adopted the assumption that it became more significant after the surgery. These factual situations cannot be made out, so there is no consequential condition.
In reply, Mr Goodridge submits that the issue concerns a question of fact and the condition must result from the injury, consistent with the authorities. There needs to be a material contribution or a further injury.

Applicant’s submissions

Mr Hickey submits that the respondent’s case requires me to draw a number of inferences. The applicant’s injury caused significant pathology in his shoulders and this was apparent in the radiology taken before and after the surgery. The surgery addressed significant tears in multiple areas of the applicant’s right shoulder. Subsequent scans show that there was another tear in the right shoulder as well as tears in the left shoulder.
Mr Hickey submits that Dr Herald provided a very clear opinion regarding the mechanism of the cervical symptoms and this had nothing to do with the shoulder surgery, but rather the tears. This is not challenged by the respondent.
Mr Hickey submits that in the dispute notice dated 23 November 2023, the insurer disputed that the applicant had injured his neck or developed a consequential condition, and it indicated that there was insufficient evidence that the neck injury was caused by the applicant’s employment.
Mr Hickey submits that in the review notice dated 15 March 2024, the insurer referred to the reports of Dr Elafifi and Dr Herald and indicated that the mechanism of injury was unclear, so it intended to arrange for its own examination by an independent medical examiner. It qualified Dr Bentivoglio and the applicant had to call for production of this report, which provided support for the applicant’s claim. The insurer did not have evidence to challenge the applicant’s claim.
Mr Hickey submits that the MRI scan dated 17 October 2023 showed degenerative changes and tears in both shoulders. There had been a retearing of the tendons in the right shoulder since the operation.
Mr Hickey submits that Dr Herald explained the cause of the applicant’s neck symptoms, namely hitching that caused extra pressure on the applicant’s neck, thereby aggravating the underlying cervical spondylosis. This was particularly worse after the operation and the repair failed. Although the respondent submits that the neck pain was contemporaneous to the operation, this is not what Dr Herald said.
Mr Hickey submits that the applicant does not allege a shoulder injury in terms of s 4 of the 1987 Act. He developed a secondary aggravation of the degenerative disease in his neck as a result of the bilateral rotator cuff tears. Dr Herald did not say that it was consequential to the surgery or contemporaneously relates to the surgery. Rather, the presence of the tears had caused an aggravation of the underlying neck condition and had resulted in symptoms. This is consistent with the authorities.
Mr Hickey submits that the applicant told Dr Herald that he consulted his doctor in September 2023 for neck and shoulder pain and was referred to scans. These showed multilevel degenerative changes and a torn rotator cuff. Dr Herald based his opinion on this history, and whilst he had not viewed the imaging, he had the referral and the imaging reports. The aggravation was not caused by the operation but was secondary to the shoulder surgery and was not due to the nature and conditions of employment. The use of these words was poor, but his opinion is clear. It is difficult to understand how the respondent maintained this dispute.
Mr Hickey submits that Dr Elafifi referred to a “wear and tear injury” and the applicant’s employment could have contributed to the disease, but the dispute concerns a consequential aggravation, not an injury. Dr Elafifi said that due to his shoulder injuries, compensation movements by his neck would accelerate and worsen the degenerative disease in the neck, so it results from the injury.
Mr Hickey submits that Dr Bentivoglio was retained by the respondent some months ago. The respondent submits that the history was incorrect, so the report was of no relevance. However, Dr Bentivoglio did not accept the history, and said there was no injury. He noted that the applicant’s neck condition became more significant after the operation and this may have given rise to an exacerbation of the disease. This is what the applicant claims to be the case. The doctor did not say that Dr Herald was wrong or what he said was impossible. There was a clear explanation of a consequential condition despite what was alleged in the dispute notice.
Mr Hickey submits that the applicant is not a doctor and cannot proffer an opinion regarding his condition. He did not know if his condition was caused by his work, and all that he knew was that his neck symptoms had worsened. The applicant seeks a finding as to causation and a general order with respect to medical expenses.

REASONS

There is no dispute that the applicant injured his shoulders on 5 March 2022. He had surgery to repair massive tears in his right supraspinatus, subscapularis and infraspinatus tendons, but unfortunately this surgery was unsuccessful. When the applicant had an MRI scan in October 2023, the scan revealed that the applicant had retorn the tendons.
The applicant does not allege that he sustained an injury to his cervical spine in the incident on 5 March 2022, and this seems consistent with contemporaneous evidence from Associate Professor Ragina, who reported that the applicant denied having any neck pain or radiculopathy.
The applicant alleges that he developed a consequential condition as a result from the accepted injuries on 5 March 2022. I do not need to find that the applicant sustained a further injury or developed pathology. This is a question of causation and the commonsense evaluation of the causal chain discussed in Kooragang Cement Pty Ltd v Bates.[5]
[5] (1994) 35 NSWLR 452, [463] (Kooragang).
The principles to be applied in cases involving consequential conditions are well established in the authorities. All that needs to be determined is whether a condition results from an injury.[6] For example, in Kumar, the finding of Roche DP was based on the existence of symptoms in Mr Kumar’s right shoulder that resulted from his accepted back injury.
[6] Moon v Conmah Pty Ltd [2009] NSWCCPD 134, [44] – [46] (Moon);; [2012] NSWWCCPD 8, [35] (Kumar); Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23, [169] (Brennan), and Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4, [87] (Bouchmouni).
According to the applicant, he had symptoms in his neck, but he did not know whether this was related to his shoulders or his employment. This evidence does not concern me as the applicant is not a doctor.
When the applicant was referred to Associate Professor Raniga in March 2022, the only injury identified concerned the applicant’s right shoulder and the applicant denied any neck symptoms, so this suggests that the applicant did not injure his neck on 5 March 2022.
When one considers the report of Dr Elafifi, it becomes readily apparent that the doctor is hedging his bets. On the one hand, he opines that the applicant’s employment caused “wear and tear” and could have contributed to the development or aggravation, acceleration, exacerbation and deterioration of his cervical spine disease, consistent with an injury in terms of s 4(b)(i) and/or 4(b)(ii) of the 1987 Act. Given that the applicant was involved in strenuous work at the respondent, there is merit in such an opinion.
However, the doctor also indicated that as a result of his bilateral shoulder injuries, compensating neck movements would accelerate and worsen the neck degenerative disease. This is consistent with a consequential condition.
It is true that the first recorded complaint of neck pain was in October 2023, when the applicant was referred for X-rays and a scan. The tests confirmed the presence of multilevel degenerative changes in the applicant’s cervical spine as well as the rupture of the previous right rotator cuff repair.
Whilst it is true that the lack of complaints might raise questions about the existence of an injury, the applicant’s claim concerns a consequential condition and this might take some time to manifest itself in symptoms. Of course I do not have the benefit of complete copies of the clinical notes of the applicant’s treating doctors.
In any event, the Court of Appeal has cautioned against placing too much weight on the clinical notes of treating doctors, given their primary concern was treatment and they rarely, if ever, represent a complete record of the exchange between a busy doctor and the patient.[7]
[7] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; Nominal Defendant v Clancy [2007] NSWCA 349; King v Collins [2007] NSWCA 122 and Mastronardi v State of New South Wales [2009] NSWCA 270.
No assistance is provided by the evidence of Associate Professor Raniga and Dr Kako. Associate Professor Raniga merely confirmed that the applicant’s cervical spine disease and he did not comment on causation. Dr Kako seems to support an injury to the applicant’s neck and he has not addressed a consequential condition.
Dr Herald examined the applicant on 31 August 2023 and provided his report a week later on 6 September 2023. There was no history of any neck symptoms, but this is not surprising as there was no history of any neck symptoms when the applicant presented for an ultrasound on 26 September 2023. Further, the evidence shows that he first complained about neck pain in early October 2023.
There is no dispute that the applicant’s right shoulder surgery failed and he was left with significant shoulder symptoms. This was confirmed in the diagnostic tests undertaken in October 2023. Only Dr Elafifi considered that the applicant’s employment might have caused the degenerative pathology in the neck, but we are not concerned with an injury per se. Further, there is no evidence that suggests that the surgery caused the neck pathology.
When Dr Herald examined the applicant on 14 February 2024, he was provided with the additional history regarding the applicant’s neck pain and the fact that he had returned to see Dr Elafifi. He was subsequently referred for further tests.
Although Mr Goodridge submits that there is no evidence to support this history and its relationship to the shoulder injuries, that does not mean that the applicant’s claim should fail.
The applicant told Dr Herald about his neck pain and this was the subject of investigations in October 2023. There is nothing inconsistent in this and there is no reason why I should doubt the reliability of the history recorded by Dr Herald. I have already commented on the significance of the absence of a record of complaints above.
Dr Herald reported that “following the surgery on his shoulder”, the applicant began to experience secondary neck pain as well as numbness and tingling in his right hand. This history is more in keeping with a consequential condition rather than any injury. Although he had not actually viewed the scans, he was aware of the findings.
Mr Goodridge’s submission that I should infer that Dr Herald was under the impression that the onset of neck pain was shortly after the operation is without merit. According to the history that Dr Herald recorded, the onset of the neck pain was “following” the operation in August 2022.
The first record of pain was in October 2023, so the timeframe for the onset of neck pain could have been any time from August 2022 to October 2023.
What we do know is that by October 2023, the applicant had reached a stage where he had to go back to see Dr Elafifi and was sent for diagnostic tests. If there was a short time frame between the operation and the onset of or increase in neck symptoms, I would have expected that the applicant would have told Dr Herald and Dr Bentivoglio that the neck pain commenced “shortly” after or “shortly” following the operation.
Dr Herald explained the mechanism that gave rise to the applicant’s neck symptoms, namely hitching that caused extra pressure on his neck from both sides that aggravated his underlying cervical spondylosis.
Whilst Mr Goodridge submits that Dr Herald seemed to be speaking in a generic sense, did not provide a logical explanation how there was an aggravation and what was the mechanism of same, he ignores the context of Dr Herald’s comments.
Dr Herald was asked by the applicant’s solicitor whether there was a causative link between the applicant’s accepted shoulder injuries and the cervical spine “injury”. He was requested to provide a full explanation, so it is apparent he was not providing a generic or speculative response. The doctor indicated that the hitching caused added pressure on the applicant’s neck on both sides and this aggravate the degenerative changes. Such an explanation describes the mechanism, is logical and unchallenged.
Whilst Dr Herald diagnosed a soft tissue injury to the cervical spine and an aggravation of the underlying cervical spondylosis, more importantly he indicated that the applicant had suffered a secondary aggravation of the underlying spondylosis and right upper limb radiculopathy secondary to his bilateral rotator cuff tears.
In his last report, he advised that the cervical spine symptoms were secondary or consequential to the shoulder surgery and shoulder injuries. His comments regarding the existence of a cervical spine injury with degenerative changes and the effect of the nature and conditions of employment is confusing, but this answer was in response to a question regarding cervical spine surgery and he seemed to focus on the pathology in the applicant’s neck and the potential for future surgery. I do not believe that this detracts from his opinion.
The respondent withheld the report of Dr Bentivoglio. I will comment further about this later. Curiously, he was not provided with the report of Dr Herald dated 14 February 2024, so he did not engage with Dr Herald’s explanation for the applicant’s secondary neck pain.
Dr Bentivoglio recorded that the applicant had neck pain prior to his injury on 5 March 2022. This history is not recorded elsewhere and does not accord with applicant’s statements. However, an inaccurate or unconfirmed history does not mean that the doctor’s entire opinion should be rejected.
Dr Bentivoglio reported that the applicant’s neck pain became more significant after the shoulder surgery. So, even if the applicant had neck symptoms before the operation, this history would be consistent with an increase in his neck pain after the operation as reported by Dr Herald. One cannot infer that Dr Bentivoglio thought that the neck symptoms came on shortly after the operation for the reasons discussed above.
Dr Bentivoglio diagnosed significant pre-existing degenerative changes in the cervical spine secondary to years of heavy manual labour. He felt that the applicant’s neck pain was not consequential to his bilateral shoulder injury. Unfortunately, the doctor did not explain why that was the case other than commenting that the cervical disease was slowly progressing and deteriorating.
Dr Bentivoglio was not satisfied that the injury on 5 March 2022 significantly exacerbated the cervical condition. Of course the applicant is not relying on any injury to his neck on that date.
Having initially denied any causal connection, Dr Bentivoglio conceded that the neck condition became “more significant” after the shoulder surgery. Such a comment is consistent with an exacerbation of the pre-existing degenerative disease. Therefore, I am in agreement with Mr Hickey that the doctor supports the applicant’s case.
Even if I was to accept that the applicant had prior neck symptoms, all that needs to be established is that a condition results from a work injury. This was confirmed in Kumar, Brennan and the other authorities.
The applicant bears the onus of proof to show that his neck symptoms have resulted from the accepted shoulder injuries. He relies primarily on the views of Drs Herald and Elafifi. Even Dr Bentivoglio accepts that there may have been an exacerbation of the disease process in the applicant’s cervical spine disease. The respondent has no persuasive medical opinion to challenge this evidence.
When one reviews the evidence as a whole, the applicant has support for a consequential condition in his cervical spine. I am satisfied that the shoulder injuries materially contributed to the applicant’s neck symptoms, consistent with the principles discussed in Murphy v Allity Management Services Pty Ltd[8] and Secretary, Department of Family and Community Services v Colleen Jones by Executor of her Estate Carol Hewston.[9]
[8] [2015] NSWWCCPD 49 (Murphy).
[9] [2016] NSWWCCPD 63.
Therefore, applying the commonsense causal chain in accordance with Kooragang, and in the absence of any persuasive evidence to the contrary, I am satisfied on the balance of probabilities that the applicant has discharged the onus of establishing that he developed a consequential condition in his cervical spine as a result of the accepted injury to his shoulders.

Medical expenses

The current claim only relates to the consultation fees of $371 for a proposed appointment with Dr Darwish. The need for this consultation was identified by Dr Herald. I accept that given the known pathology in the applicant’s cervical spine, the consultation and any reasonably necessary treatment that might be required would satisfy the tests in in Rose v Health Commission (NSW)[10], Bartolo v Western Sydney Area Health Service[11], and Diab v NRMA Ltd[12].
[10] (1986) 2 NSWCCR 32 (Rose).
[11](1997) 14 NSWCCR 233 (Bartolo).
[12] [2014] NSWWCCPD 72 (Diab).
The applicant seeks a general order in respect of medical expenses relating to his neck. Given that I have determined that the applicant developed a consequential condition in his cervical spine as a result of his accepted shoulder injuries and the medical evidence supports the need for treatment, I am satisfied that the insurer should pay for the applicant’s reasonably necessary treatment expenses. Accordingly, I will make such an order.

Insurer’s conduct

Finally, I consider that I should make some comments about the insurer’s management of this claim and its conduct in these proceedings.
The insurer issued notices pursuant to s 78 of the 1998 Act on 23 November 2023 and
15 March 2024. In each of those notices, it advised that it was not satisfied that there was sufficient evidence to support the claim. This is not the first time that I have seen this reason and it seems to be a practice regularly adopted by this particular insurer.
In the notice dated 23 November 2023, the insurer advised:
“EML will proceed with organising an independent medical examination with a spinal surgeon to request an opinion on work-relatedness of your neck injury/condition. Upon receipt of the independent consultant’s report, EML will pro-actively [sic] review its decision.”
In the notice dated 15 March 2024, the insurer indicated that the mechanism of injury was unclear, even though it had been provided with report of Dr Herald dated 14 February 2024. The insurer advised:
“We understand that the insurer has arranged an independent medical examination and may reassess their decision in relation to liability upon receipt of further evidence, if necessary.”

It would seem that this notice might have been drafted by the respondent’s solicitor given the reference to “we understand the insurer”. If it had been drafted by the insurer, the notice would have said “We have arranged”.
Dr Bentivoglio provided a report on 9 May 2024. It is not clear when the insurer received this. The doctor was provided with the reports of the diagnostic tests and a report from Associate Professor Raniga dated 4 October 2023. This report is not in evidence.
Curiously, Dr Bentivoglio was not provided with the reports of Dr Herald dated
14 February 2024 or Dr Elafifi dated 8 February 2024 that were served on the insurer on
1 March 2024. One would have thought that these two reports would have been of major interest and warranted comment.
When Principal Member Bamber asked about the respondent’s medical evidence at the preliminary conference on 26 July 2024, the respondent’s solicitor advised that the respondent had qualified Dr Bentivoglio, but it did not intend to rely on his evidence. So it was made clear that the report had been withheld and it only surfaced when I enquired about it at the hearing and Mr Hickey called for its production pursuant to reg 41 of the Workers Compensation Regulation 2016. Not surprisingly, Mr Hickey tendered it in support of the applicant’s claim.
In my view, the insurer’s conduct in this management of this claim and in these proceedings has been unsatisfactory.
SIRA issues guidance documents regarding the management of claims by insurers. These are readily accessible on the SIRA website.
The general or overarching principles regarding disputes are described in Insurer Guidance GN 1.5. It provides:
“Procedural fairness
An insurer is to consider the principles of procedural fairness when making decisions under the legislation that impact a worker’s rights, interests or entitlements.
Principles of procedural fairness are not concerned with reviewing the merits of a decision but with the procedure to be observed in reaching a decision. This includes, but is not limited to:
1.     giving the worker notice of the issues in detail
2.     giving the worker the opportunity to respond to any adverse material and provide new information for the insurer to consider
3.     ensuring the decision-maker is not, or is not reasonably perceived to be, biased to an outcome
4.     providing the worker with all the information the insurer has considered in making its decision, regardless of whether that information supports the decision or not.”
Insurer Guidance GN 8.1 relevantly provides an overview regarding insurer decisions as follows:
“Claims Management Principles
When making decisions, an insurer is to have regard to the overarching claims management principles in SIRA’s Standards of practice. Principle 1 of the overarching claims principles require insurers to undertake the management of claims in an empathetic manner intended to maximise fairness for workers by:
·         ensuring that workers understand their rights, entitlements and responsibilities, and making clear what workers and employers can expect from insurers and other scheme participants, and
·         ensuring workers are afforded procedural fairness, and that decisions are made on the best available evidence, focused on advancing the worker’s recovery and return to work.
‘Note: The Commission has raised the adequacy of dispute notices in a number of matters, highlighting the importance of providing a full and proper explanation of the issues in dispute, in plain language.
See for example: Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137; Hobden v South East Illawarra Area Health Service [2010] NSWWCCPD 13’….
Considerations
In summary, insurers should have in place current policies, procedures and protocols which ensure and maintain that:
·         all decisions are soundly based and supported by evidence
·         all decisions have been peer-reviewed and/or authorised by staff with the relevant skills and experience before the decision is communicated with the worker
·         all decision notices are easy to understand and compliant with legislative and regulatory requirements
·         the worker continues to be supported during and after the decision notice has been issued
·         the principles of procedural fairness have been considered
·         potential disputes are prevented and minimised, where possible.”
Decision notices
A quality decision notice should:
· contain all information as required by section 79 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and clause 38 of the Workers Compensation Regulation 2016 (2016 Regulation) (see ‘decision notice requirements’ outlined below)
·         be specific to the claim
·         raise all issues relevant to the dispute (this includes not raising irrelevant issues)
·         be in plain language and readily understood
·         include the date when the decision comes into effect, allowing for any postal processing where required
The date specified in the decision notice is to be the date the insurer makes the decision.”
According to the SIRA Claims Management Guide,
“The Standards of Practice: Expectations for insurer claims administration and conduct (Standards) together with the Workers compensation guidelines (Guidelines) set clear, consistent, accessible and enforceable expectations that will guide insurer conduct and claims management.”
The purpose of the SIRA Standards of Practice Guidelines (April 2022) are to “support and encourage insurers to have effective claims management practices to help deliver positive experiences and outcomes for workers, employers and the people of NSW”. They focus on fairness and empathy, transparency and participation and timeliness and efficiency.
In its initial dispute notice, the insurer indicated that the evidence was not sufficient. It advised that it would organise an appointment with an independent medical examiner and upon receipt of the report, it would pro-actively review its decision. Regrettably, the insurer did not organise an appointment until six months later and then it did not pro-actively review its decision, when it had ample time to do so.
The applicant sought a review and provided two reports in support of his claim in
March 2024.
The insurer issued a further dispute notice, suggesting that the mechanism of the injury was unclear. This was on the background of the detailed explanation provided by Dr Herald. At least on this occasion, it arranged for a medical examination with Dr Bentivoglio.
The insurer received Dr Bentivoglio’s report on or about 9 May 2024. This was before the applicant filed proceedings in the Commission. Despite having the benefit of a report that supported the applicant’s claim, the insurer sought to withhold the report and it did not proactively review its decision as it indicated in the initial dispute notice.
The insurer declined to resolve the matter at the preliminary conference before Principal Member Bamber and during the conciliation conference before me. It did not take into account my preliminary view regarding the likely outcome of the dispute.
There are some relevant principles and standards that seem to have been ignored by the insurer in the management of this matter. They are:
(a)     the insurer is to ensure that workers are afforded procedural fairness and decisions made on the best available evidence, focused on advancing the worker’s recovery (Principle 1) – the best available evidence was that of
Dr Herald as supported by Dr Bentivoglio;
(b)     the insurer is to ensure transparent and timely communication of the reasons and information relied upon for decisions, and facilitating right of reply, and prompt, independent review of decisions (Principle 2) – the explanation the evidence was insufficient or unclear was inadequate at all times, and the insurer failed to review its decision;
(c)     the insurer is to progress claims without unnecessary investigation, dispute or litigation (Principle 3) – the insurer insisted on an unnecessary and costly determination of the dispute;
(d)     when determining initial liability for an injury, or in this case a consequential condition, insurers are to gather the relevant evidence, consult with key stakeholders (including the employer and worker) and ensure that the decision is made in a timely manner and communicated appropriately (Standard 3) – the insurer did not adequately consult with the applicant and his doctors and seemed to gather no relevant evidence. When it did so, it ignored it, and
(e)     the insurer is required to genuinely participate in Commission’s preliminary conferences, conciliations/arbitrations and mediations in good faith and with a view to achieving the timely and effective resolution of disputes (Standard 22) – a representative of the insurer was in attendance at the preliminary and conciliation conferences but did not genuinely participate with a view to achieving an expeditious and effective resolution.
The Commission has a statutory obligation to give effect to the guiding principle that is to be applied to practice and procedure and the parties are under an obligation to participate in the processes and to comply with directions and orders. Further, the procedure should be implemented to ensure that the cost to the parties and to the Commission is proportionate to the importance and complexity of the dispute.
Section 42 of the Personal Injury Act 2020 relevantly provides:
“42 Guiding principle to be applied to practice and procedure
(2)    The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2)     The Commission must seek to give effect to the guiding principle when it—
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.
(3)     Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission—
(a) a party to proceedings in the Commission,
(b)an Australian legal practitioner or other person who is representing a party in proceedings in the Commission.
(4)     In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings….”
The insurer obtained evidence in an attempt to challenge the applicant’s claim and despite obtaining a report that supported the claim, it insisted on an unnecessary and costly determination. Such actions are inconsistent with the objects of the Commission to provide a timely and cost effective resolution of disputes.
It was apparent during the running of the case that the applicant was in pain and was distressed by the proceedings and the insurer’s conduct, so I am not the only person who is dissatisfied with insurer. In hindsight, the applicant should not have been put through the trauma of this litigation.
Finally the insurer is a scheme agent of icare and is obliged to comply with the Model Litigant Policy. This requires the insurer to deal with claims promptly and not cause unnecessary delay in the handling of claims and litigation, pay legitimate claims without litigation, act consistently in the handling of claims and litigation, endeavour to avoid litigation wherever possible and facilitate the just, quick and cheap resolution of the real issues.
The insurer is obliged to keep the costs of litigation to a minimum by not requiring the other party to prove a matter which it knows to be true, not take advantage of a claimant who lacks the resources to litigate a legitimate claim and not rely on technical defences unless the interests of the State or an agency would be prejudiced.
When one considers the insurer’s conduct in this matter, it would be difficult to say that the insurer has complied with any of its obligations under the Model Litigant Policy.
According to the Model Litigant Policy, issues regarding compliance or non-compliance should be resolved between the partes and then are to be referred to the head of the agency concerned, in this case, icare.
The matter has been contested, so it is no longer possible to resolve the issues between the parties. It was left to me to do so.
In those circumstances, I will direct the respondent to advise why the insurer’s conduct should not be referred to icare.

[2024] NSWPIC 444

16 August 2024