Hinde v Tarago Operations Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Hinde v Tarago Operations Pty Ltd [2022] NSWPIC 558
APPLICANT:	Barry Hinde
RESPONDENT:	Tarago Operations Pty Ltd
Member:	Catherine McDonald
DATE OF DECISION:	7 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for section 60 expenses for cervical spine surgery; whether worker injured his neck in the same incident; background of treatment for neck condition; Nguyen v Cosmopolitan Homes considered; credit findings in the absence of cross-examination; NSW Police Force v Winter discussed; material contribution per Murphy v Allity Management Services; Held – award for the respondent.
determinations made:	1. The applicant did not suffer an injury to his cervical spine on 12 November 2019. The Commission determines: 2. Award for the respondent on the claim for s 60 expenses in respect of the proposed C6/7 anterior discectomy and fusion proposed by Dr Suttor. 3. No order with respect to weekly compensation.

STATEMENT OF REASONS

BACKGROUND

Barry Hinde was employed by Tarago Operations Pty Limited (Tarago) as a process operator at its Woodlawn mine when he suffered an injury on 12 November 2019. There is no dispute that Mr Hinde injured his right shoulder. He was paid compensation in respect of that injury until 9 December 2021.
Mr Hinde claims that he also injured his neck on 12 November 2019 and claims the cost of an C6/7 anterior discectomy and fusion proposed by Dr Suttor. While conceding that the surgery is appropriate, Tarago denies that it is reasonably necessary medical treatment as a result of an injury to Mr Hinde’s neck.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

At a telephone conference on 15 July 2022 the pleadings were amended to name Tarago as the respondent. Leave was granted to issue directions for production of documents to
Dr Ow-Yang, Goulburn Hospital, A/Prof Arnold and Cowra Physiotherapy.
The claim was listed for conciliation conference and arbitration hearing on 4 September 2022 when of Mr Adhikary of counsel appeared for Mr Hinde and Mr Stockley of counsel appeared for Tarago.
No documents had been produced under direction but Mr Stockley told me that he was not instructed to make any application arising from the failure to produce documents.
Mr Adhikary said that Mr Hinde did not allege that he suffered a consequential condition in his cervical spine. His case is that he suffered a frank injury on 12 November 2019 which aggravated an underlying disease process.
Mr Stockley told me that Tarago accepted that the surgery was required. If I found that Mr Hinde suffered an injury to his cervical spine, Tarago conceded that Mr Hinde was entitled to an award of weekly compensation assessed on the basis that he had no current work capacity.
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 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

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply, and
(c)    Tarago’s Application to Admit Late Documents dated 6 September 2022.
Mr Hinde signed a statement on 24 May 2022. He said that he had previously suffered polymyalgia rheumatica and that he had undergone total hip replacement in August 2021. He said that he has suffered a bowel injury in the past and that he had “recovered from the effects of any previous injuries at the time of the subject injury.”
Mr Hinde said that on 12 November 2019 he was working when he tripped and fell forwards heavily, landing on his right side and injuring his neck and shoulder. He said that he felt immediate pain on the top of his right shoulder and it spread to the base of his neck. He reported the injury and received first aid before being taken to Goulburn Base Hospital.
Mr Hinde described his treatment and said that a few months after the injury, his general practitioner recommended he undergo MRI scans of his right shoulder and his neck. He said that he reported continuing pain in his neck and right shoulder and pain radiating down both arms which he reported to his general practitioner in around March 2020. His general practitioner noted that cortisone injections and physiotherapy were not helping and recommended an ultrasound. Mr Hinde was referred to Dr Ashton who provided treatment including a right shoulder arthroscopic surgery on 15 July 2020. Mr Hinde said he saw Dr Ashton on 3 August 2020 and that about that time he began to report increasing pain in his neck, arms and hands. Dr Ashton recommended an MRI scan of his neck.
Dr Ashton reviewed the MRI scan on 16 October 2020 and explained to Mr Hinde the he had degenerative changes in the C6/7 disc as well as a possible injury to the C7 nerve root. Dr Ashton referred him to Dr Suttor. On 20 to December 2020 Mr Hinde underwent a CT scan guided injection to his neck. He saw Dr Suttor for the first time on 28 January 2021. He said in his statement that Dr Suttor explained that he had exhausted all of his conservative treatment options and the next step would be a C6/7 anterior cervical discectomy and fusion.
Mr Hinde noted that the insurer declined liability for the surgery and set out in his statement the reasons why he believed that the surgery was necessary and how it was related to his injury. In particular he said that he had no issues before the fall at work had no symptoms in his neck before that injury.

Contemporaneous records

A patient report form dated 12 November 2019[1] appears to provide the first aid provided at the Mine and notes that Mr Hinde suffered pain in the right shoulder caused by a fall at work.
[1] ARD p 385.
A discharge summary from Goulburn Base Hospital[2] recorded that Mr Hinde had been brought in by a work colleague after he tripped and fell at work that morning, landing on his right shoulder. He complained of pain over the shoulder joint and that he was unable to move it. The doctor recorded that there were no other injuries, no “head strike” and no back pain. The doctor observed tenderness to palpation over the lateral clavicle and there was normal sensation and movement of the hand and wrist. The past medical history included chronic back pain after being run over by a car in 1982. An X-ray of the right shoulder only was undertaken.
[2] ARD p 387 and following.

General practitioner’s notes

Mr Hinde’s General practitioner is Dr Dubey of Grenfell and the earliest notes in his file date from 1999.
On 23 April 2019 Dr Dubey recorded that Mr Hinde attended for an annual check-up and asked for referral to a chiropractor because of his bad back.
On 1 May 2019 Mr Muir, chiropractor, reported to Dr Dubey noting that Mr Hinde was suffering from chronic lumbar spine, hip upper back and neck pain.
On 29 May 2019 Mr Hinde complained of chronic lower back pain and wanted to have a full scan and seek the advice of a neurosurgeon. Dr Dubey then recorded that he was taking painkillers as necessary. He noted:
“involved in MVA long time car rolled over him has history of tingling and numbness in both arms ? cervical radiculopathy…”
A full spine CT scan was undertaken on 30 May 2019 and reported by Dr Gutmann. The clinical history was “MVA 1982, constant pain, requiring medication, both arms go numb, now pain lower back/neck, both hips.” Dr Gutmann noted:
“the right C6/7 intervertebral for a man appears narrow and the nerve root may be compressed within it.
Conclusion:
There is degenerative change at several levels. Slight osteophytic encroachment of the spinal canal at C3/4, C4/5 and C5/6 is seen, with slight disc prominence related to the latter two levels. These may cause irritation or minor compression of the cord. The right C6/7 intervertebral foramen is narrow. There is change on the left side at C7 suggesting a healed fracture of the lamina. This may be symptomatic and if concern exists, and MRI scan or nuclear medicine scan would determine the activity at this site.”
Mr Hinde saw Dr Dubey again on 4 June 2019 and a referral to Dr Ow-Yang, neurosurgeon, was provided. The referral read:[3]
“Thank you for seeing Barry Hinde for an opinion and management for chronic back pain. He has a history of MVA as car rolled over him in 1992. He has c/o cervical radiculopathy and some time both and become numb when he was sleeping. He has on and off lower back pain that radiate to both hip.[sic]”
[3] ARD p 257.
Dr Ow-Yang saw Mr Hinde on 27 June 2019 and reported on the same day. He noted a long history of chronic low back pain that began after a motor vehicle accident in 1982 which resulted in significant trauma, including a laparotomy for a bowel injury. Since then, Dr Ow-Yang noted, Mr Hinde had suffered thoracic and low back pain symptoms and some clicking in his neck. He said that “the mid-thoracic and low back pain symptoms are the most significant symptoms for which he has been referred.” Dr Ow-Yang said:
“A CT and MRI of the thoracic and lumber spine have been performed. There is evidence of old wedge fractures at T6 and T10. Those fractures have healed. The structural changes are mild throughout thoracic and lumbar spine with minimal disc disease and facet disease and no spinal cord or nerve compression. There is some L5/S1 disc degeneration with mild facet arthropathy without evidence of nerve root compression at this segment.
CT of the cervical spine shows C6/7 degenerative disc disease with loss of disc height. There is no significant nerve compression. There are mild facet joint arthritic changes same. I reassured him that there is a minimal structural abnormality in the thoracic and lumber spine to explain his overall pain syndrome. The majority of pain is likely to be muscular or ligamentous in origin. …
I advised against any surgical option as it is unlikely to improve his pain syndrome. Surgery for axial spine symptoms typically involves segmental fusion and there is inadequate structural change to provide any target for surgery.”
Dr Ow-Yang suggested that a more rigorous series of steroid injections could be considered. He also recommended a more rigorous exercise program.
At the next consultation on 8 July 2019, Dr Dubey noted that the neurosurgeon did not advise surgery at that stage and that Mr Hinde needed painkillers referral to a pain clinic. Mr Hinde was referred to Mr Gillham for management of pain in his lower back, neck and both hips.[4] In the referral Dr Dubey set out the text of the CT scan report dated 30 May 2019. A referral form for allied health services under Medicare reveals that Mr Gillham is a physiotherapist.
[4] ARD p 261.
A report to Dr Dubey from Mr Gilham of Cowra physiotherapy dated 4 September 2019 noted that Mr Hinde had widespread musculoskeletal pain. By that time he had seen Mr Hinde on four occasions and noted that exercise and treatment had proved helpful but, given the widespread pain, he recommended referral to a rheumatologist and suggested Dr Arnold in Orange.
On 5 September 2019 Dr Dubey noted that Mr Hinde presented with respect to lower back pain and that he had seen the physiotherapist without improvement. He discussed the inflammatory changes. He referred Mr Hinde for blood tests and again wrote to Mr Gilham.
On 10 September Dr Dubey noted that the blood tests had been reviewed and discussed and there were no changes of inflammatory arthritis. Because of his history of morning stiffness and pain in the larger joints, Mr Hinde was referred to A/Prof Arnold. The referral dated 10 September 2019 sought an opinion of a possible inflammatory arthritis, noting that Mr Hinde had been complaining of stiffness in the morning and pain and tenderness in both shoulders, hips and lower back joints.
The next occasion on which Mr Hinde consulted Dr Dubey was 15 November 2019 when he described the work injury, saying he had tripped and fallen, landing on his right side.
On 18 November 2019 Dr Dubey noted that the X-ray of Mr Hinde’s right shoulder was normal and an ultrasound showed biceps tenosynovitis and subacromial bursitis. By 3 December 2019 Mr Hinde had recovered well and was happy to go back to pre-injury duties. On 10 March 2020 Mr Hinde saw Dr Dubey again when his right shoulder pain had increased.
Dr Dubey saw Mr Hinde on a number of occasions with respect to his right shoulder. The next reference to cervical radiculopathy in Dr Dubey’s notes is on 4 May 2021.
On 2 August 2021 he queried the relationship between the shoulder injury and neck condition, writing:
“has still pain in rt shoulder
has along with neck injury
complex issue that related to shoulder injury or not?”

Specialist referrals

A/Prof Arnold saw Mr Hinde on 19 November 2019 and reported to Dr Dubey on 20 November 2019. He said that Mr Hinde:
“… reports that he has had the indolent onset of around 12 months of fairly widespread pain for which he consulted Mark Gillard [sic] in Cowra. Barry reported developing aches and pains in the shoulders, hips, upper arms and difficulties in sleeping with pain when rolling over in bed at night, as well as buttock and leg pain. He feels that he is no strength in his hands and arms, but has had no observable swelling particularly in the hands or elsewhere.”
A/Prof Arnold noted that Mr Hinde had fallen at work on the previous Tuesday, injuring his right shoulder and had been off work since. He noted that Mr Hinde was booked to have a steroid injection in his shoulder after an ultrasound. After describing his findings on examination, A/Prof Arnold noted that Mr Hinde’s symptoms had been ongoing for some time and said that, based on pathology tests, polymyalgia rheumatica (PMR) should be considered although he was young and his symptoms were atypical. A/Prof Arnold prescribed prednisolone and recommended hip X-rays. He planned to review Mr Hinde in the new year.
After initial improvement in Mr Hinde’s right shoulder condition, the pain deteriorated and Dr Dubey referred him to Dr Ashton in Orange on 10 March 2020. Dr Ashton reported on 26 March 2020. He obtained a history of a fall directly onto the right shoulder causing pain and that, after an initial improvement, the symptoms flared when Mr Hinde started using the shoulder again. Dr Ashton recommended local anaesthetic and still had injection to the subacromial bursar, and MRI scan in four weeks’ time and then a further injection into the acromioclavicular joint. He noted that Mr Hinde also required X-rays of the pelvis and left hip and a CT scan of the lumbar spine “given the other symptoms he has had which continue to be a major problem for him.”
On 2 May 2020 A/Prof Arnold saw Mr Hinde after an interval of six months. He noted that Mr Hinde’s hand and arm pain increased when he reduced his dose of prednisolone. The dose was increased again.
On 20 May 2020 Dr Ashton noted that the injections had not provided long lasting relief. He noted the treatment by A/Prof Arnold. He considered that Mr Hinde would be best managed with “right shoulder arthroscopic acromioplasty, bursectomy, excision distal clavicle.” He noted the possibility of left hip replacement surgery at some stage.
On 30 May 2020 A/Prof Arnold said it seemed less plausible that Mr Hinde had polymyalgia rheumatica and it was evident that he had evidence of myofascial trigger points. He recommended reducing and then ceasing prednisolone.
The right shoulder surgery was undertaken on 15 July 2020. On 3 August 2020 Dr Ashton wrote to Dr Dubey describing the surgery and the subsequent consultation. He noted osteoarthritic change affecting both of Mr Hinde his hips and said the left total hip replacement was required.
On 31 August 2020 Dr Ashton reviewed Mr Hinde and said that his right shoulder was settling reasonably. He said:
“He does get a lot of pain in the elbow, forearms and hand regions. He has previously been reviewed by Dr Mark Arnold who did not find any rheumatological inflammatory problem.
The range of motion of the cervical spine was good with no neck pain and I note he was neurologically normal to motor and light touch sensation. He does not get any particular symptoms suggestive of carpal or cubital tunnel syndrome. He also has bilateral osteoarthritic hips of which the left is worse than the right.”
Dr Ashton ordered an MRI scan of the cervical spine to further assess Mr Hinde’s arm symptoms.
The MRI scan was reported by Dr Kuan as showing “significant spondylytic narrowing of the C6/7 intervertebral foramina with potential neural compromise. No disc protrusion or canal stenosis.”
Mr Hinde saw Dr Ashton on 16 October 2020. Dr Ashton noted that he was on the public hospital waiting list for a left total hip replacement and said:
“He has also had an MRI of his cervical spine which showed significant degenerative changes at the C6/7 level with evidence for a possible sees [sic C6] C7 nerve root compromise at the intervertebral foramina. Clinically the upper limbs have normal light touch sensation so he was a little weak on the left side with which wrist flexion and extension. There were no other specific lateralising motor signs.”
Dr Ashton noted that Mr Hinde was currently taking prednisone for PMR diagnosed by A/Prof Arnold. He said:
“regarding his neck I have arranged for him to have image guided local anaesthetic and started injection to the bilateral C6/7 levels where the C7 nerve roots maybe compressed as a diagnostic and therapeutic assessment. I have also referred him to Dr Sean Suttor for opinion after the injections have been performed as to whether any further management of his neck is required.”
Dr Ashton wrote to Dr Suttor on 16 October 2020 and referred Mr Hinde with respect to his “cervical spine neck pain.” He set up the results of the MRI scan on his clinical findings, noting that Mr Hinde does get a lot of referred pain into both arms.
A CT guided bilateral C6/7 foraminal injection was undertaken on 23 December 2020.
Dr Dubey provided another referral to Dr Suttor on 13 January 2021.
Dr Suttor reported to Dr Dubey on 28 January 2021. He said that Mr Hinde presented with bilateral upper limb radicular symptoms, more than a year after workplace injury when he fell onto his right shoulder. He complained of upper limb pain radiating from the neck down to both hands, which woke him at night. CT guided injections gave good but transient relief and he described feelings of weakness. Dr Suttor’s notes include a pain diagram which had pain in both arms and a notation that the symptoms had been present since August/September 2020.
Dr Suttor noted that the MRI scan demonstrated significant disc degeneration at C6–C7 with bilateral foraminal stenosis which would be compressing the exiting C7 nerve roots. He recommended surgery on the basis of bilateral C7 radiculopathy of more than a year’s duration which was causing him daily issues. Dr Suttor concluded his report by saying that Mr Hinde was keen to proceed with the procedure “so we will request an approval from the insurance provider.” Dr Suttor provided a quote dated 11 February 2021.
A/Prof Arnold saw Mr Hinde again and reported on 10 February 2021. After noting that Mr Hinde required a left hip replacement, A/Prof Arnold said:
“He recently had some spinal imaging showing C5/6/7 spondylosis, with the most important effects on the left more so than right emerging C7 nerve root. Today on examination, I agree that he did have a little weakness of wrist and finger extension, arguably some impairment of grip strength, but preserved reflexes. Barry has been referred to Dr Suttor, who has discussed surgery with him and hopefully he’ll be able to be operated on at Westmead in the relatively near future.
I think any contention that Barry had PMR is now long gone. He has tapered and ceased corticosteroids. We spoke about the practicalities of his situation, his ability to re-train after his neck and shoulder problems have reached a conclusion, and also whether his hips – unrelated to his injury claim – would affect his ability to work.”

Dr Ashton saw Mr Hinde again on 15 April 2021 and noted that he had seen Dr Suttor who recommended neck surgery. He said:
“Barry will consider his options regarding his neck. One option would be to go on the public hospital waiting list for the surgery. I believe he is able to have this reviewed through workers compensation which he may do as well.”
Mr Hinde underwent a left hip replacement in August 2021.

Medico-legal reports

Tarago’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 7 April 2021, declining liability for surgery on the basis of Dr Bosanquet’s report and his opinion that there was no evidence that the fall at work aggravated the changes in Mr Hinde’s cervical spine. It maintained that decision in a review notice dated 17 March 2022, noting that there was no mention of neck pain in the contemporaneous notes.

Dr Bosanquet

Tarago’s insurer arranged for Mr Hinde to see Dr Bosanquet, orthopaedic surgeon, who reported on 21 March 2021. He had a history that Mr Hinde landed on his right shoulder at the time of the incident and that he returned he commenced selected duties in December 2019 but the business closed in February 2020 and Mr Hinde had not worked since. He described the treatment by Dr Ashton. Dr Bosanquet said:
“However, he then developed pain in his cervical spine and reported this to Dr Ashton. Dr Ashton had an MRI performed that showed significant spondylotic narrowing of the C6/7 intervertebral foramen. Dr Ashton referred Barry Hinde to Dr Sean Suttor, a spine surgeon at Westmead Hospital. Dr Suttor has recommended an anterior cervical decompression and fusion.”
He set out his observation examination of Mr Hinde’s cervical spine. He said:
“There is reasonable movement though he notices some grating. He has pain in both sides of his neck equally. This radiates from the neck into his fingers. There are no paraesthesiae but there are numbness in his hands and forearms. On driving there is numbness from the elbow down to the hands. The pain is always present. He feels that there is decreased strength in his hands though he does not drop objects. The pain tends to be worse at night and wakes him up. He needs medication, Panadol Osteo x 2.”
The past history provided to Dr Bosanquet was three motor vehicle accidents including one with a car rolled in 1982 and Mr Hinde required laparotomy for a bowel tear. Dr Bosanquet summarised the MRI findings and said that Mr Hinde suffered a shoulder injury and concurrently developed pain in his neck and forearms. He said that they were pre-existing degenerative changes in Mr H’s cervical spine and also his lumbar spine and both hips. He said there was no evidence that he had aggravated underlying changes in his cervical spine at the time of the injury. He did not consider that the pre-existing cervical spondylosis had been aggravated or exacerbated by his employment. Dr Bosanquet did agree that the surgery was reasonably necessary but not work-related.

Dr Bodel

Mr Hinde’s solicitors qualified Dr Bodel who reported on 15 February 2022, having seen Mr Hinde on 20 December 2021. Dr Bodel obtained a history that Mr Hinde tripped and fell heavily on 12 November 2019 landing on his right side injuring his neck and right shoulder. Following the injury he was off work for about eight days but within a brief period the pain deteriorated and was located primarily in the region of the right shoulder and also over the top of the shoulder at the base of the neck. Mr Hinde began to develop generalised weakness in the right arm and he told Dr Bodel that he suffered numbness and tingling radiating down both arms, particularly to the ulnar side of each hand.
In respect of the past medical history Dr Bodel said:
“This gentleman has polymyalgia rheumatica. He has also had a total hip replacement done on the left knee, done by Dr David Bell, in August. This was done as a private matter and at this early stage he has made a very good recovery.
This gentleman reports that he was involved in a number of motor vehicle accidents in the past and I want occasionally had a rupture of the bowel which required surgery. This was many years ago and he has recovered from the effects of those injuries with no residual neck or right or left arm pain prior to the injury that occurred at work.”
After recording the range of motion in Mr Hinde’s shoulders, Dr Bodel said:
“Grip strength is slightly weak on the right side. There is no wasting in the small muscles of the hand. The triceps reflex on the right hand side is diminished compare to the left but it is present. There is sensory loss in the C7 distribution of the owner border of the left-hand. There is no localised tenderness over the owner nerve, behind the medial epicondyle, and no wasting in the small muscles of the ad. There are clinical signs of C7 radiculopathy in the right arm. There are no signs of radiculopathy in the left arm.”
Dr Bodel said that there were no X-rays or other scans to review. He considered Dr Bosanquet’s report and said:
“Dr Bosanquet however is of the opinion that the complaints of pain in the neck is due to degenerative change only. In my view the fall has caused the aggravation, acceleration, exacerbation and deterioration of that disease process which clearly pre-existed the fall but has been aggravated by the fall. I am satisfied therefore that there is a causal link between the episode of injury that occurred at work on 12 November 2019 and that episode is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration to the disease process in the cervical spine which is the degenerative disc disease.
…
… Dr Suttor has indicated that this gentleman has had about a 12 month history of C7 radiculopathy. He recommended surgery and indicated the pros and cons of that surgical approach.”
Dr Bodel was asked to summarise the history and said:
“His main complaint was the shoulder but he always indicated that the pain was over the top of the shoulder and the front of the shoulder and the back of the shoulder and in my view that is consistent with a concurrent injury to the neck as well. At the very least the neck component is a consequential injury by way of aggravation, acceleration, exacerbation and deterioration of the underlying previously asymptomatic degenerative neck condition while recovering from the various treatments undertaken for the shoulder including the surgery.”

Dr Suttor

Dr Suttor provided a report to Mr Hinde’s solicitors dated 7 June 2022. The letter of instructions has not been provided and the questions he answered are not set out in his report.
Dr Suttor recorded that at the time of the injury Mr Hinde landed heavily on his right side, injuring his right shoulder primarily and also his neck. He said that the neck symptoms became more prominent want his once his shoulder symptoms improved from the surgery and he gave a history of axial neck pain that radiates into both arms reaching down to the hands. Dr Suttor said that he considered that is C6/C7 anterior cervical discectomy infusion was appropriate to alleviate Mr Hinde’s pain symptoms and was reasonably necessary because Mr Hinde had exhausted conservative management. He said that it had been over two years since the injury. In respect of Dr Bosanquet’s report he said:
“in terms of his claim that there is no evidence of aggravation of the underlying changes in his neck, I disagree with his opinion. It can be contested however, at the time the right shoulder complaint would most likely have been clouding the issue as it relates to his neck. Once the shoulder symptomatology had been improved the underlying neck issues became more apparent than they were initially.”
Dr Suttor said:
“Mr Hinde does have underlying features of degenerative disc changes and stenosis in his neck. The injury has most likely aggravated this and initiated the onset of radiculopathy. Given the injury occurred with work employment within be considered as the main contributing factor here.
The imaging findings of degenerative in and Mr Hinde’s cervical spine are age related. The fall and injury he sustained in 2019 has aggravated this and unfortunately aggravation has failed to resolve which occurs in 10%-20% of radiculopathy cases.
…
Certainly, if Mr Hinde suffered a mechanism of injury at work sufficient to injure his right shoulder it would certainly be sufficient enough to aggravate his underlying cervical degenerative changes and cause his ongoing pain issues as they presently stand.”

SUBMISSIONS

Mr Hinde

Mr Adhikary said that the injury to Mr Hinde’s neck was a frank incident on 12 November 2019, referring to Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[5], and was not a disease injury. He took me through Mr Hinde’s statement, noting what was said at paragraphs 15 to 17 regarding previous conditions. He said that the diagnosis of polymyalgia rheumatica was irrelevant.
[5] [2014] NSWCA 264 at [25].
Mr Adhikary said that the initial focus of treatment was to Mr Hinde’s right shoulder and he told Dr Ashton that he had pain in his neck arms and hands in July 2020
Mr Adhikary took me to Dr Suttor’s report dated 7 June 2022, noting that Dr Suttor disagreed with Dr Bosanquet and that his opinion was that there was an aggravation of degenerative change at the time of the injury. He summarised the reports of Dr Ashton and A/Prof Arnold.
With respect to Dr Dubey’s records, Mr Adhikary noted the history of tingling and numbness in May 2019 and the referral to Dr Ow-Yang. Dr Ow-Yang considered that there was no significant nerve compression in Mr Hinde’s neck and surgery was not necessary. Mr Adhikary said that the clinical entries in Dr Dubey’s notes after the date of Dr Ow-Yang’s report were consistent with Mr Hinde’s evidence – before the injury any issues in Mr Hinde’s cervical spine were not significant and he did not need surgery. Mr Adhikary stressed that there was no mention to Dr Dubey of neck problems between the date of Dr Ow-Yang’s report and the injury.
Turning to Dr Bodel’s report, Mr Adhikary said that the history he recorded was consistent with Mr Hinde’s evidence – that he suffered pain in the top of the right shoulder and the base of the right side of his neck. He said Dr Bodel accepted that the fall aggravated the changes in Mr Hinde’s neck and that the reference to the local doctor’s consultation notes indicated that Dr Bodel had considered the material in Dr Dubey’s notes.
Mr Adhikary said that I would be satisfied on the balance of probabilities that Mr Hinde had suffered a frank injury to his neck in that the fall had aggravated underlying pathology. He said that there was a consensus of opinion among the doctors that the predominant issue was Mr Hinde’s right shoulder which explained the time at which the neck injury was reported.
Mr Adhikary said that I would not accept Dr Bosanquet’s opinion because he did not have regard to Mr Hinde’s initial report of pain and because his report was based on the incorrect history.
With respect to incapacity, Mr Adhikary said that there were medical certificates in the file which certified Mr Hinde as having no current work capacity for the period of the claim.

Tarago

Mr Stockley said that the case Mr Hinde would like to present is one which is commonly encountered in the Commission; that is, where there is an asymptomatic pre-existing condition and a change in pathology leads to symptoms and treatment. Mr Stockley said that Mr Hinde did not complain of contemporaneous symptoms and only said that he did suffer them in his statement signed in May 2022.
Mr Stockley noted that Mr Hinde said that he fell forward suffering an injury to his right shoulder and pain that spread to the right side of his neck. Mr Stockley said that submission was implausible in light of the other contemporaneous treatment Mr Hinde underwent which was not disclosed in his statement. Mr Hinde’s disclosure of his medical history was either unreliable because he has forgotten the details, misleading or careless.
If Mr Hinde had given evidence about his consultation with Dr Ow-Yang and the advice that he was given, it might be easier to accept that he was asymptomatic in the weeks before the fall. Mr Stockley said that, given the unreliable nature of Mr Hinde’s evidence, it is difficult to accept the proposition. He said that Mr Adhikary was at pains to urge that there was an absence of symptoms between the consultation with Dr Ow-Yang and the date of injury. Mr Stockley noted that there was no complaint of symptoms in Mr Hinde’s neck until late 2020.
In summarising the medical evidence about treatment of Mr Hinde’s neck in early 2019, Mr Stockley highlighted the CT scan dated 30 May 2019, noting that the pathology at the right C6/7 intervertebral foramen, the level at which Dr Suttor proposes surgery. He noted that Dr Dubey’s notes following the right shoulder injury are devoid of reference to Mr Hinde’s neck until 2020 and that the lack of complaint was entirely inconsistent with the assumptions made by Dr Bodel.
Mr Stockley pointed out that the letter of instructions to Dr Bodel was not provided but Dr Bodel appeared to believe that Mr Hinde injured his neck. There is no consideration in his report of the time scale over which treatment took place and Mr Stockley said that his opinion was difficult to accept in light of the contemporaneous material. Dr Bodel’s summary of the past medical history was incorrect. While that may not be his fault, it diminished the utility of his opinion. Dr Bodel’s report was based on the assumption that the underlying changes had been painful only since the injury. Mr Stockley noted that Dr Bodel’s report was internally contradictory and appeared to seek to “cover all bases” and said that his superficial conclusion could not stand.
Mr Stockley said that I would afford no weight to the paragraphs of Mr Hinde’s statement in which he sought to point out that there was no other explanation for the condition in his neck.
While Dr Suttor said that a fall may have been a sufficient mechanism to aggravate degenerative changes, Mr Hinde had failed to demonstrate that was the case and the letter of instructions is not provided.
Mr Stockley said that Dr Ow-Yang has advised against surgery, in a consultation where he was considering multiple problems. While he did not record radiculopathy on the day of the examination, Dr Dubey alerted him to the recent history in the referral. Mr Stockley said there were developments after that date and before the injury but Mr Hinde had failed to provide any insight into his treatment so that we are left to rely on the doctors’ notes as best we can.
While Dr Bosanquet was criticised by Mr Adhikary for taking the wrong history, Mr Stockley said that the history recorded was presumably that given to him by Mr Hinde. On the basis of the history he was given, he did not consider that Mr Hinde had suffered an injury.
However, Mr Stockley said that the real argument was the sufficiency of Mr Hinde’s own case. He made no submissions on the question of capacity.

Reply

Mr Adhikary said that the report of Dr Suttor dated 7 June 2022 and the report of Dr Bodel made clear that the injury made a material contribution to the need for surgery. He said there was no evidence that there was another competing cause of the need for surgery. He said that there was nothing to suggest that the underlying condition had not been aggravated.
With respect to the absence of contemporaneous complaints, Mr Adhikary said that Mr Stockley had not addressed the evidence which explains why that was so. He said it was not possible to challenge the evidence that Mr H has suffered a right shoulder injury which required treatment and the medical evidence which explained why the neck injury was not treated cannot be ignored.
Responding to these submissions about the nondisclosure of previous symptoms, Mr Adhikary said that Mr Hinde had not said that he did not have those issues in about May or June 2019. What he did say was that at the time of the full he had no other symptoms in his neck and that was corroborated from the general practitioners notes. Mr Adhikary said that was something that Mr Hinde could not be mistaken about – either he had those symptoms or he did not.
In that context, Mr Adhikary referred briefly to the decision of the Court of Appeal in Bradley v Matloob[6] (Bradley) and the remarks of Beech-Jones J[7]. He did not take me to the decision in detail but said that the relevance of it was that Mr Hinde had not been cross-examined to the effect that he had lied so that a finding that he is dishonest cannot be made.
[6] [2015] NSWCA 239.
[7] At [79]-[82].
Mr Adhikary said that Mr Hinde’s evidence was consistent with the general practitioner’s records and the report of Dr Bodel. He said that Dr Suttor noted that Mr Hinde did not complain of significant neck pathology before the work related injury and the forces of the injury were sufficient to aggravate the underlying degenerative changes and initiate radiculopathy. He said Dr Ow-Yang did not accept that there was radiculopathy and no evidence of radicular complaints after the examination by Dr Ow-Yang. He said there was evidence of a clear aggravation to the underlying pathology such that injury had been established.

FINDINGS AND REASONS

Mr Adhikary stressed in his submissions in reply that there was no evidence of any other cause for the need for the proposed surgery besides the subject incident. That submission misstates the onus. It was necessary for Mr Hinde to prove on the balance of probabilities that he suffered a neck injury. Tarago did not carry an onus to prove that he did not.
The standard of proof on the balance of probabilities was described by the Court of Appeal in Nguyen v Cosmopolitan Homes.[8] McDougall J, with whom the other members of the Court agreed, said[9]:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[8] [2008] NSWCA 246.
[9] At [55].

Credit

It is not necessary that a witness be cross-examined before the Commission can make an adverse finding about his or her credit.
In New South Wales Police Force v Winter, an appeal from a decision of a Presidential member of the Workers Compensation Commission[10], Campbell JA (with whom the other members of the Court agreed) quoted from a decision in which he summarised cases in which the rule in Browne v Dunn was affected by the exchange of documents before a hearing. His Honour said:
“…The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.
Even when there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case. ...
In the present case the exchange of documents between the parties prior to the oral hearing would be sufficient to have notified the Respondent that there was a live dispute about whether he suffered from a mental condition of sufficient seriousness to warrant classification as a ‘psychological injury’ . It would have been sufficient to notify him that there was a live issue about whether the reason for his absence from work since 8 September 2008 was a psychological injury, rather than that he had undergone difficulties at work that he found disagreeable, even intolerable, but that had not precipitated a psychological injury. It would also have been sufficient to notify him that there was a live dispute about whether he was suffering any ongoing incapacity."[11]
[10] [2011] NSWCA 330.
[11] At [81]-[82].

Dealing with the procedures of, His Honour said:
“The obligation to accord procedural fairness requires that a party be given notice of the case that is put against him or her, and a reasonable opportunity to put evidence and submissions before a tribunal concerning that case: Aluminium Louvres at [18]; State Transit Authority of New South Wales v Chemler at [65]; Parkerv Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619 at [85] per French CJ, [137] per Gummow, Hayne and Kiefel JJ; Fletcher International Exports Pty Ltd v Lott at [42], [63].” [12]
[12] At [84].
In Donovan v Secretary, Department of Education and Communities[13] Roche DP said:
“... As the Commission has attempted to explain in dozens of cases, lack of cross-examination does not mean that the relevant evidence is uncontested. Moreover, a court or tribunal is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence (Ali v Nationwide News Pty Ltd[2008] NSWCA 183 [110]–[112]; M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 [21]; Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 848–849; and Gaunt v Hooft [2009] WASC 36 [41]–[42]). (See also the general discussion about cross-examination in the Commission in New South Wales Police Force v Winter [2011] NSWCA 330 from [81].)”
[13] [2015] NSWWCCPD 27.
Bradley does not stand for the proposition that Mr Adhikary sought to draw from it and turns on its own facts. The appeal was from a decision given after an oral hearing. A plaintiff suffered a brain injury in a motor accident when she swerved to avoid a collision with a car that turned across her path, causing her to collide with a stationary truck. An independent witness identified Mr Bradley’s vehicle as the vehicle at fault. The plaintiff sued Mr Bradley and the Nominal Defendant.
The trial was conducted on the basis that the driver of the at-fault vehicle could not have failed to notice the near-miss with the plaintiff’s car. The trial judge found that Mr Bradley was liable but that conclusion necessarily meant that Mr Bradley had lied to the police on the day of the accident and lied at the trial. However, that contention was not put to him in cross-examination nor were submissions made to that effect so that there was no scope for a finding against him. The only conclusion available on the evidence was that Mr Bradley was not the driver.
The fact that Mr Hinde was not cross-examined does not preclude an adverse credit finding. He was aware from the decision notices that Tarago did not accept that he had suffered an injury to his neck.
Mr Hinde’s statement was prepared in May 2022, after the decision notices were issued. No doubt he was assisted in its preparation. He disclosed only three “prior” conditions – polymyalgia rheumatica, hip replacement in August 2021 and bowel injury he said that he had recovered from the effects of any previous injuries at the time of the injury which is the subject of these proceedings. Given the significant history disclosed in Dr Dubey’s notes, that was an inadequate description of past medical history. It also implied that polymyalgia rheumatica was in the past where is the treatment for that condition began after the injury and ceased when A/Prof Arnold determined that it was not an appropriate diagnosis.
The statement that he had recovered from any previous conditions is inconsistent with the medical evidence. It is a matter on which he is not qualified to give an opinion.
The description of the injury itself is very brief – Mr Hinde merely said that he fell forwards heavily landing on his right side injuring his neck and right shoulder, feeling severe pain on top of the shoulder and spreading to the base of the right side of his neck. Mr Hinde describe his treatment and said that in mid to late 2020 he began to report the increasing pain he was soft in his neck arms and hands. One full page of the statement is taken up by Mr Hinde’s expression of his opinion as to the benefits he believes he will experience if the surgery is undertaken and explaining that he disagreed with Dr Bosanquet because there were no other causes beside the workplace full for the condition. Much of that evidence was unnecessary because there is no dispute that the surgery is reasonably necessary, but rather the dispute is whether it is reasonably necessary as a result of an injury.
Mr Hinde’s expression of opinion is unhelpful and contravenes rule 73 of the Personal Injury Commission Rules 2020 which provides that unqualified opinions are unacceptable. There are numerous inconsistencies between his evidence and the contemporaneous medical evidence and to be extent of the inconsistency, I do not accept his evidence on the issue of whether or not he suffered a neck injury.

Medical evidence

Mr Adhikary said that it was only necessary that the injury make a material contribution to the need for treatment. Those words were considered by Roche DP in Murphy v Allity Management Services Pty Ltd[14],.
[14] [2015] NSWWCCPD 49.
The worker suffered a work injury and a later incident when she fell in a supermarket. Surgery was recommended after the later fall and an arbitrator in the former Workers Compensation Commission found that it was needed as a result of that fall. Roche DP said:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
A consideration of the medical evidence shows that Mr Hinde has not proved on the balance of probabilities that he suffered a neck injury in November 2019 which made a material contribution to the need for surgery.
There is no reference to an injury to Mr Hinde’s neck in the notes of Goulburn Base Hospital. The doctor recorded that there was pain around the shoulder joint and no other injuries. If Mr Hinde had said he suffered neck pain, it is likely that an X-ray of his neck would have been ordered with the shoulder X-ray.
Dr Bodel’s report and Dr Suttor’s report of 7 June 2022 were prepared after surgery was proposed and after liability for it was disputed. The assumption underlying both reports is that Mr Hinde suffered a neck injury on 12 November 2019. The letters of instructions were not provided. Where the dispute is about injury, the omission of those letters is relevant. It is not necessary that the history recorded by a medical expert correspond exactly to the facts for the opinion to be persuasive. However, the assumptions relied on by the expert must represent a fair climate for the opinion expressed.
In Paric v John Holland (Constructions) Pty Ltd Samuels JA said[15]:
“I have myself looked at the evidence and looked at the hypothetical facts and while I would agree that in some respects the material put does differ in terms from what was proved, all in all I would regard it as open to the tribunal of fact to consider that it was a fair foundation and remains a reasonable support for the opinions which were sought and given…
It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”
[15] [1984] 2 NSWLR 509, 510.
An examination of the medical evidence shows that Drs Bodel and Suttor were not afforded a fair climate in which to express their opinions. They both based their opinion on Mr Hinde’s statement that he had recovered from all previous conditions as the date. What Dr Bodel and Dr Suttor would have said if they were aware that there was a real dispute about the occurrence of the injury and aware that there was a history of, and treatment for, radicular complaints before it, is unknown.
Dr Suttor’s statement that the need for treatment of the shoulder injury clouded the neck condition is based on a history of that Mr Hinde suffered a neck injury. It is also based on the history that Mr Hinde did not complain of neck pain before the injury. His statement that the fall was sufficient to aggravate the underlying degenerative changes and initiate radiculopathy shows that he was not provided with the full history.
I do not agree that Dr Bodel’s reference to having been provided with Mr Hinde’s local doctor’s notes necessarily means that he read and considered all of them. If he had, it would have been appropriate to consider the impact of radicular complaints before the injury and the delay in the onset of those symptoms after the injury.
Dr Bodel’s report is also unsatisfactory in that he expresses a number of inconsistent explanations for Mr Hinde’s condition. Without explaining his reasoning, Dr Bodel said that the fall clearly aggravated a disease process.
In South Western Sydney Area Health Service v Edmonds[16] McColl JA described the requirements for expert evidence in the former Workers Compensation Commission. The rules Her Honour was considering are relevantly the same as rule 73 referred to above. Her Honour said:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
[16] [2007] NSWCA 16 at [130]-[132].
That statement is apposite in respect of Dr Bodel’s opinion that the injury was the aggravation of a disease. However, he expressed other opinions in the report which are not consistent with it. He said that there was a neck injury or “at the very least” a consequential condition being an aggravation of a previously asymptomatic condition while recovering from the shoulder treatment. That is a different concept. While Mr Adhikary eschewed the characterisation of Mr Hinde’s neck condition as a consequential condition, the inclusion of that opinion in Dr Bodel’s report and the multiplicity of explanations means that his report provides no assistance in determining the claim.
Neither Dr Ashton not A/Prof Arnold who were treating Mr Hinde at the time that he began to complain of neck pain made any detailed comments about causation – their focus being treatment. Even Dr Suttor’s report of January 2021 did not mention a neck injury nor explain the reason why he recommended that Tarago’s insurer should pay for the surgery.

Pre-injury treatment

Dr Dubey’s notes show that in April 2019 Mr Hinde sought referral to a chiropractor and the chiropractor, Mr Muir, noted a complaint of neck pain, among other things. In May, Mr Hinde sought referral to a neurosurgeon. Dr Dubey ordered a CT scan and in the referral noted a history of tingling and numbness in both arms, querying cervical radiculopathy.
The CT scan dated 30 May 2019 showed that the right C6/7 intervertebral foramen was narrowed and queried whether the nerve root was compressed. There is no evidence to show if that scan was considered by Dr Bodel and Dr Suttor. The findings are at the same level as those highlighted in the MRI scan dated 15 September 2020.
Dr Dubey referred Mr Hinde to Dr Ow-Yang. At the consultation on 4 June 2019 and in the referral Dr Dubey noted the symptoms consistent with cervical radiculopathy. Dr Ow-Yang saw Mr Hinde on 27 June 2019. He referred to a CT and MRI scan but there is no MRI scan report in the file dated 2019 and Dr Dubey’s notes suggest he only ordered a CT scan.
Dr Ow-Yang did not say that Mr Hinde did not have radicular symptoms - he did not comment on that aspect of the referral. He commented that there was no significant nerve compression when considering the CT scan and advised against surgery. The tenor of his report is that he was considering Mr Hinde’s spine as a whole. He said that it was safe for Mr Hinde to take intermittent analgesia.
Dr Dubey referred Mr Hinde for physiotherapy and then to A/Prof Arnold. A/Prof Arnold saw Mr Hinde one week after the injury and recorded that he felt that he had lost strength in his hands. He recorded that Mr Hinde had a shoulder injury. Because of the complaints about Mr Hinde’s hands, it would be expected that A/Prof Arnold would record any history of a neck injury.
Dr Dubey’s notes are brief, like those of many general practitioners. He saw Mr Hinde quite regularly in mid to late 2019 and would be unlikely to record all of his symptoms on every occasion. In Nominal Defendant v Clancy[17], Santow JA said:
“While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive … clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor [or a medico-legal report] is likely to have been written with more deliberate consideration than rough notes.”
[17] [2007] NSWCA 349.
While Dr Dubey’s notes do not make specific mention of cervical radicular pain between the date of Dr Ow-Yang’s report and the injury, Mr Hinde was under active investigation and treatment as at the date of the injury. In those circumstances, it is disingenuous to suggest that Mr Hinde was not suffering neck and arm pain at the date of the injury.

Conclusion

For those reasons, I am not satisfied on the balance of probabilities that Mr Hinde suffered an injury to his neck on 12 November 2019.
Counsel’s arguments with respect to weekly compensation were brief and did not address the order I would make if I found that Mr Hinde did not suffer a neck injury. Payments ceased in December 2021 on the basis that there was no incapacity resulting from the condition of his right shoulder. In the absence of a claim for weekly compensation based on Mr Hinde’s right shoulder condition, it is appropriate that I do not make any order.
For the reasons set out above, I find that Mr Hinde did not suffer an injury to his cervical spine on 12 November 2019.
I make an award for the respondent on the claim for s 60 expenses in respect of the proposed C6/7 anterior discectomy and fusion proposed by Dr Suttor.
I make no order with respect to weekly compensation.

[2022] NSWPIC 558

7 October 2022