Jackson v Scalabrini Village Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Jackson v Scalabrini Village Ltd [2022] NSWPIC 736
APPLICANT:	Patricia Jackson
RESPONDENT:	Scalabrini Village Ltd
Member:	Jane Peacock
DATE OF DECISION:	22 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Allegation of cervical spine injury in two incidents at work for which the applicant sought a determination in respect of proposed cervical spine surgery; undisputed that lumbar spine was injured in both injuries; no contemporaneous reporting of neck injury and absence of contemporaneous complaints of neck pain in medical records; Held – all of the evidence weighed in the balance and held that the applicant had not discharged the onus of proof; award for the respondent.
determinations made:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), Ms Patricia Jackson, seeks a determination in respect of surgery proposed to her cervical spine as a result of injury alleged to her cervical spine on 29 March 2018 and 22 April 2018 in the course of or arising out of her work as an Assistant in Nursing (AIN).
The respondent is Scalabrini Village Ltd (Scalabrini). Catholic Churches Insurance Limited is the relevant insurer for the purposes of workers compensation.
Scalabrini denied liability for the claim.

ISSUES IN DISPUTE

There is no dispute that Ms Jackson suffered two injuries at work on 29 March 2018 (the wheelchair incident) and again on 22 April 2018 (the pillow incident). There is no dispute that she hurt her lumbar spine in both incidents. There is no dispute that she has come to two lots of surgery on her lumbar spine as a result of both incidents.
Ms Jackson alleges she also injured her cervical spine in both incidents and seeks to have the surgery on her cervical spine as proposed by her treating neurosurgeon and spinal surgeon Dr Abrasko in the form of a discectomy and rhizolysis with laminectomy.
Scalabrini disputes the allegation of injury to the cervical spine.
In the event that liability for injury is determined in Ms Jackson’s favour, Scalabrini also disputes that the proposed surgery is reasonably necessary as a result of the injury on
29 March 2017 and 22 April 2017.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were admitted into evidence before the Commission by consent and considered in making this determination:
For Ms Jackson:
(a)    Application and attached documents;
(b)    late documents filed with an Application to Admit Late Documents on 7 Octiober 2022, and
(c)    statement dated 2 August 2019 tendered by consent at the arbitration and filed by Application to Admit Late Documents within three days of the arbitration.
For Scalabrini:
(a)    Reply and attached documents, and
(b)    it is noted that to avoid duplication of documents, Scalabrini did not press the admission of their late documents as they were the same clinical notes as admitted on behalf of Ms Jackson.

Oral evidence

Ms Jackson did not seek leave to adduce oral evidence and counsel for Scalabrinii did not seek leave to cross-examine Ms Jackson.

FINDINGS AND REASONS

Ms Jackson seeks a determination in respect of surgery proposed by Dr Abrakso as a result of injury alleged to her cervical spine on 29 March 2018 and 22 April 2018.
There is no dispute that the Ms Jackson suffered injury to her lumbar spine on 29 March 2018 and again on 22 April 2018.
The injury to Ms Jackson’s lumbar spine was a significant one and she came to two lots of surgery in respect of her lumbar spine as a result of her lumbar spine injury which was paid for by the insurer.
The dispute arises because Ms Jackson alleges that she also hurt her cervical spine in both incidents. This allegation of cervical spine injury is disputed by Scalabrini.
Ms Jackson seeks an order in respect of surgery to the cervical spine proposed by
Dr Abrasko in the form of a discectomy and rhizolysis with laminectomy.
Scalabrini disputes that the proposed surgery is reasonably necessary as a result of injury on 29 March 2018 and 22 April 2018.
The dispute must be determined on the evidence and in accordance with the law.
I must decide on the balance of probabilities whether Ms Jackson suffered injury to her cervical spine on 29 March 2018 and on 22 April 2018. In the event I decide that she did,
I would then have to determine, on the balance of probabilities, whether the proposed surgery sought by Ms Jackson is reasonably necessary as a result of the injury.
The applicable law is to be found in ss 4, section 9, 9A and s 60 of the Workers Compensation Act 1987 (the 1987 Act) Act as follows:
Section 4 of the 1987 provides the definition of injury as follows:
“4 Definition of ‘injury’
(cf former s 6 (1))
In this Act—
‘injury’ —
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a ‘disease injury’, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Sections 9 and 9A of the 1987 Act provide as follows:
“9 Liability of employers for injuries received by workers—general
(cf former s 7 (1) (a))
(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.
9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
[Note: In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.]
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 60 (1) of the 1987 Act provides as follows:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that -
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Counsel for Ms Jackson referred various authorities as follows: Davis v Wagga Wagga City Council [2012] CA 34, King v Collins [2007] CA 122, Mason v Demasi [2009] CA 227, Winter v NSW Police Force [2010] NSWWCCPD12, Owen v Motor Accidents Authority of NSW [2012] SC 650, Burgat v Fox [2014] NSWSC 88, and Department of Ageing v Finlay [2011] NSWWCCPD 65.
The above cases were referred to in support of the proposition that caution should be taken in regard to the weight placed on clinical notes when treating doctors by reason of inattention, busyness and mistake can fail to record reports of injury or complaints of pain made by patients. Furthermore independent corroboration from contemporaneous medical records is not necessary for the matter to be determined in the worker’s favour. This is well settled, however, each case will turn on its own facts. In each case, all of the evidence must be weighed carefully in the balance. In this case all of the evidence must be weighed in the balance and a determination made on the balance of probabilities as to whether Ms Jackson suffered injury to her cervical spine on 29 March 2018 and 22 April 2018 in the course of or arising out of her employment with Scalabrini.
Turning now to a careful examination of the evidence.
A careful analysis of the evidence given by Ms Jackson in her statement dated
4 August 2022 is necessary and this evidence needs to be weighed in the balance with the other evidence before me, including the clinical records and reports of the doctors treating Ms Jackson.
The applicant gave evidence in a statement dated 4 August 2022 which was attached to the Application. By consent the applicant tendered during the arbitration a statement dated
2 August 2019. It is not in dispute that it is in the same terms as the later statement.
Ms Jackson gave evidence in her statement dated 4 August 2022 about what occurred on
29 March 2018 and on 22 April 2018.
Ms Jackson gave evidence about the first incident on 29 March 2018 when pushing an elderly patient a wheelchair (combined weight of over 100kg) down a ramp when the wheelchair pulled forward and she was about to lose control and as it did not have brakes for the person pushing the chair to use, she had to use her body to control it, causing her injury.
She gave evidence:
“As I pulled the wheelchair back with force and my body, I felt a sharp pain in my lumbar spine and my neck, which became stiff, but my pain was so severe in my lower back.”
She called for help from a co-worker who could not help because she was also pushing another patient in a wheelchair.
Ms Jackson gave evidence:
“After I got to the bottom of the ramp, I was experiencing significant back pain. I continued with my shift until 3.00pm and then went home. I had difficulty entering and exiting my car, a small BMW hatchback with 2 doors, which was low to the ground and compact. I was still feeling pain whilst driving.
When I got home, I immediately took medication, Panamax. I also applied deep heat cream to my lumbar spine and neck and put a back brace on which I purchased from a general store. Nurses usually has a back brace to help us with our work as we are aware that our duties involved lifting patients and other heavy manual tasks.
The pain was radiating down my lumbar spine into my left and right legs and my neck was still stiff., I had to lie down on my bedroom floor to relieve the pain, I got up later with much difficulty and tried to make tea which I couldn’t. I felt my legs would collapse from underneath me. I also took notice that I kept dropping objects as I tried to pick them up.
I found it very difficult to sleep that night as I was experiencing extreme pain and discomfort to my lumbar spine and the pain going in to my left and right legs. I had lost strength in my back and was leaning over the kitchen sink for support.
The following day I woke up and noticed the radiating pain into my legs had subsided. However the pain to my lower back was still there and I reapplied deep heat cream and work my back brace and attended work. My neck was still stiff but I thought that would get better over time.”
Ms Jackson gave evidence that she reported the back injury to her supervisor. She did not report the neck injury. She says in this regard as follows:
“when I got to work, I completed an incident report of my injuries and provided it to Sue, the secretary of Scalabrini Village. I believe I only mentioned in the incident report that I had injured my back as that was severe. I did not mention my neck as the pain was not as bad and I thought it would go away.”
Ms Jackson gave evidence that between 29 March 2018 (the first incident) and 22 April 2018 (the second incident) she experienced pain in her lumbar spine on a daily basis which she self treated with Panamax, deep heat cream and wearing a back brace to work.
She gave evidence:
“I thought my back pain would get better after a short period of time but this did not happen, My neck was also sore and stiff at times and I thought this was all relating to my back injury.”
Ms Jackson then suffered another injury on 22 April 2018 when assisting an elderly patient. When attempting to tuck a pillow under the patients head and back, without warning he became flaccid and fell back onto the bed and the pillow which she was holding with both arms off the bed. Her left arm was across the patient when he fell backwards. She had her back brace on as she did not want to stop working after the first incident.
She gave evidence:
“the force of his landing on the pillow was sudden and the pillow fell back onto the bed, dragged me down and shocked my body, I immediately yelled in pain as I felt my entire body from head to toe exploded in pain. I felt pain in my lower back and pain going down the left leg. I also felt pain in my neck going down towards the back, but that was not as severe as the pain in the back, my co- worker Carmen Fletcher witnessed the incident.
Due to the immediate pain I was experiencing I began to vomit onto the floor, I managed to get to the toilet and immediately began vomiting into the toilet.
I reported the incident to the registered nurse Claire Ammedkin. Claire told me we were short staffed. I felt obligated to continue to work however I did tell Clare that I would not be able to complete any physical duties including assisting patients in and out of bed.
I was unable to continue my full shift and finished early at 2.000pm.”
Counsel for Ms Jackson submitted that Ms Jackson’s evidence that she reported the incident to her supervisor should be regarded as a contemporaneous report of injury to the neck to her supervisor. Ms Jackson does not give evidence that she specifically reported an injury to her neck. She had an opportunity to give that evidence in her statement noting that the knowledge that the dispute arose because of the alleged absence of contemporaneous reporting. She bears the onus of proof.
Ms Jackson gave evidence she struggles to drive home due to pain, when she got home she immediately took medication and laid on the floor. She could not get up again and yelled for her partner to assist. He took her to Campbeltown Hospital.
She says of her admission:
“I was assessed and admitted into Campbelltown public hospital. I was provided with pain killing medication and underwent a CT scan. I was discharged and was advised to undergo an MRI scan to my lumbar spine.”
The hospital records record only a report of lumbar spine pain and it is the lumbar spine which is investigated by CT scan. It is the lumbar spine that is recommended for further investigation by way of an MRI.
There is no record of a complaint of neck pain to Campbeltown Hospital.
The history of injury is recorded as having been taken at a number of points during her presentation and then admission to the hospital. At no point is neck pain or injury to the neck mentioned at all. When she is discharged into the care of the general practitioner (GP), the hospital reported the history taken as follows:
“HOPI
Works in aged care
Was trying to place pillow for a resident who accidentally pushed back aggravating lumbar spine pain
Pain radiates down the left leg
No numbness weakness to the leg
Had a similar back pain 3/52 weeks ago while wheeling a resident downhill, pain improved with simple analgesia
Cannot ambulate due to pain.”
Ms Jackson says she was advised by her work colleague Magda Oris to seek Dr Hamad who was not her usual GP. Ms Jackson says:
“Dr Hamad was not my usual GP but I was advised that he was the doctor to see if I got injured at work. I believe he was the company doctor.”
It is not clear from Ms Jackson evidence that she got this advice from anyone in a supervisory capacity as Magda Oris is referred to simply as a “work colleague” and not a supervisor.
She says:
“Dr Hamad was not there when I first went and I saw a female doctor. I had two weeks off work were I was certified unfit from approximately 22 April 2018 to 6 May 2018. I feel I aggravated the injury to my lower back and neck on 22 April 2018.”
Ms Jackson then returned to work on 7 May 2018 on a return to work (RTW) program arranged by Dr Hamad and Sue from Scalabrini village. She also saw a rehabilitation officer.
Her RTW program was light duties five days a week, eight hours per day.
She experienced an increase in symptoms on her RTW:
“during this period I experienced an increase to my symptoms after working for approximately a week. My back was still in severe pain and there was stiffness in my neck after work.”
She had several days off work between May and mid July 2018.
She says her symptoms became so severe she was seeing Dr Hamad on a fortnight basis:
“My lumbar spine and neck symptoms became so overwhelming I would attend on
Dr Hamad’s office on a fortnightly basis, I would report that my symptoms had not resolved . I would be getting attacks of pain, stiffness in the neck and loss of strength and mobility. I was complaining to dr Hamad about swelling to my right leg and I was losing strength in my left leg. I also complained about increasing stiffness and pain to my neck. Dr Hamad was not very helpful and ignored most of my complaints about the pain in my neck and the pain travelling to my legs.”
It is common ground that there is no record in Dr Hamad’s notes of neck symptoms until an entry on 7 December 2018 (some 7-8 months after injury).
She began to experience incontinence as a result of her back injury.
She says:
“Eventually Dr Hamad referred me to a neurosurgeon, Dr Renata Abrasko for my lower back. My neck was ignored.”
The first appointment with Dr Abrasko took place on 12 July 2018. The evidence from
Dr Abrasko’s clinical records is set out below and there is no record of Ms Jackson reporting an injury to her neck at this first consultation with Dr Abrasko or indeed until April 2019.
Ms Jackson gave evidence:
“During our initial consultation in July 2018, Dr Abrasko examined me and referred me for an MRI scan for my lumbar spine, I recall during a conference with Dr Abrasko and the rehab officer, a new lady named Ashley that I was suffering from back pain and also pain and stiffness in my neck.”

The applicant does not detail in her statement of evidence the date on which she first disclosed neck pain to Dr Abrasko. It is, however, conceded that the first record of neck pain recorded by Dr Abrasko is on 4 April 2019 without any reference to a work injury and the first record of neck pain as a result of the work injury is on 11 April 2019. That is, the first record of the reporting of neck pain to Dr Abrasko is some 12 months after the dates of injury.
Ms Jackson gave evidence that Dr Hamad ignored her complaints of neck pain but so did the physiotherapist at Physio Fit. She says:
“I have been permanently off work since 21 July 2018, During this time I saw the physio at Physio fit at Carnes Hill who helped me with my back but ignored my neck, This physio aggravated my lower back badly by pushing down so hard on my back I was in severe pain and hunched dover. When I got home my partner Angelo gave me his old crutches for support I went and saw Dr Hamad soon after with the crutches but he didn’t take any interest.”
She saw Dr Asbrasko again in August 2018 with the MRI scan. By this time she had developed a left foot drop. She had swelling in the right leg.
Dr Abrasko advised surgery as soon as possible being a discectomy and rhizolysis with laminectomy.
On 6 August 2018, Ms Jackson underwent a discectomy and rhizolysis with laminectomy at the hands of Dr Abrasko. She was discharged on 8 August 2018.
After an initially good response, she developed difficulties in her recovery from her back surgery.
She was recommended physiotherapy and hydrotherapy as post operative treatment by
Dr Abrasko.
She tried to return to work one year after surgery but could not. She says:
“Approximately 1 year following the surgery I tried to return to work however I could not do the work due to the pain and flare up that was causing. The left foot drop began to correct itself following the surgery and was ok however I continued to have pain in my back and neck, the swelling in my right leg also went down.”
The surgery took place in August 2018 so the above evidence about neck pain is referring to August 2019, by which time the neck pain as a result of injury had been recorded as reported.
She goes onto give evidence about her neck and back pain at this time as follows:
“I continued to feel pain in my left fingers to my neck and from my lower back to my toes. I was experiencing the spasms, the neck pain would go my right side into my arm. I would get spasms and the right side of my neck would go stiff. I get pins and needles and my fingers go numb. I was experiencing tremors at night and this was affecting my sleep.”
It is conceded by counsel for Ms Jackson that the first recorded complaint of neck pain is the entry in Dr Hamad’s notes dated 7 December 2018 which is some seven to eight months after injury and I note this is despite regular appointments with Dr Hamad which Ms Jackson says were taking place about fortnightly. On 7 December 2018 Dr Hamad records the following history:
“History
Recurrent headaches, intermittent over pats 6 weeks
Neck pain down R side arm
Getting shaky and tremors”
Counsel for Ms Jackson submitted that the reference to six weeks (so dating it back to the end of October 2018 or some six months after injury) is only a reference to the onset of headaches starting six weeks ago and not neck pain which is submitted was consistently complained of by Ms Jackson to Dr Hamad (but not recorded).
I note that there is no history in the consultation notes of 7 December 2018 recorded of the neck pain having resulted from either of the work injuries.
Ms Jackson gave evidence that she was referred by her GP to Dr Griffith to examine her brain for her tremors, she saw him on 25 February 2019. He did not find a problem with the brain but Ms Jackson says he could not explain the tremors. Dr Griffiths’ report is not in evidence.
She says she tried to continue with her rehabilitation but her condition did not improve.
On 7 May 2019 she saw Dr Smith at the request of the insurer. He attributed her condition to anxiety. She says she told him about the neck but he said not to worry about the neck and to concentrate on the incontinence. Dr Smith’s report is in evidence and does not mention the neck.
Ms Jackson goes onto give evidence:
“Due to the ongoing symptoms in my neck Dr Abrasko recommended I have surgery in the form of fusion, She wrote to the insurer and requested approval but the insurer denied liability for the injury to my neck. I believe the insurer issued section 78 notice on 14 May 2019 and then again on 26 May 2020 disputing the injury to my neck and the proposed surgery to the neck. I want to proceed with the surgery to my neck however the insurer had not approved it.”
I note that this recommendation for neck surgery and the request for surgery on the neck was made by Dr Abrasko on 15 April 2021.
Ms Jackson gave evidence that she was referred to Dr Manohar (a pain management specialist) in early 2019 who gave her an injection in her back as approved by the insurer but could not inject the neck as it was not approved by the insurer.
There are no reports from Dr Manohar in evidence.
Ms Jackson changed GPs to Dr Touma. She says:
“Dr Touma was more understanding and would listen to my complaints unlike
Dr Hamad”.
Dr Touma’s notes are in evidence. From those notes, it appears Ms Jackson first saw
Dr Touma on 30 April 2019. Dr Touma notes record complaints of neck pain resulting from the injury on 29 March 2018 and the injury on 22 April 2018. He records that the symptoms of pain in the neck are ongoing. After the first consultation on 30 April 2019, Ms Jackson continues to regularly consult with Dr Touma whose notes continue to record current symptoms of ongoing neck pain.
Ms Jackson was referred to Dr Diwan for a second opinion who agreed with Dr Abrasko that she needed neck surgery. Dr Diwan does not assist on causation.
The first complaint of neck pain that is recorded in clinical notes is that recorded by
Dr Hamad on 7 December 2018. There is no attribution to the work injury recorded.
The first complaint of neck pain that is said to result from the subject work injuries that is actually recorded in a health professional notes is that recorded by Dr Abrasko, neurosurgeon who was Ms Jackson’s treating specialist since July 2018 and who performed the back surgery in August 2018. There is no record in Dr Abrasko’s clinical records until
4 April 2019 when neck pain is recorded and on 11 April 2019 when the neck pain is attributed to the wheelchair incident (29 March 2018).
Dr Abrasko, neurosurgeon and spinal surgeon, first saw Ms Jackson on referral from
Dr Hamad. Dr Abrasko wrote a letter back to the GP dated 12 July 2018. She sets out the recorded history which does not mention the neck having been injured in either of the subject work incidents. Dr Abrasko wrote back to the GP as follows:
“Thankyou very much for referring Patricia, a pleasant 55 year old lady who works as an AIN. She works with elderly people, She had two incident; once two weeks before her initial pain, she was taking an elderly person down the ramp and had back pain that was radiating to both legs, The next days she woke up there was no pain, but on 22 April 2018 she was helping and bending over an elderly person with the pillow and had a sudden onset of severe back pain radiating to her left leg, Since that time she feels her leg is numb and has not improved. She is on Lyrica and pain and numbness became better, she is also on warfarin for the left leg stent Her CT scan revealed left sided L5-S1 disc protrusion compressing the left L5 and S1 nerve root.”
She reported her physical examination of the lumbar spine which had positive signs. There was no examination of the cervical spine to report because Ms Jackson did not report the neck complaints to Dr Abrasko. This is despite Ms Jackson giving evidence that after the injury she was regularly complaining of neck pain to Dr Hamad but he was ignoring her complaints. Ms Jackson does not complain in her evidence that Dr Abrasko ignored her complaints like Dr Hamad is alleged to have done. There is simply no record in Dr Abrasko notes until 4 April 2019 of a neck complaint which is approximately one year after injury.
Dr Abrasko at the first consultation on 12 July 2018 recommended an urgent MRI scan of the lumbar spine.
Dr Abrasko saw Ms Jackson again on 31 July 2018 with the benefit of the MRI scan. She writes that he saw her with a rehabilitation consultant. Based on the findings in the MRI scan and her clinical expertise, she recommended urgent surgery to the lumbar spine and that the insurer grant urgent approval.
On 1 August 2018 Dr Abrasko saw Ms Jackson again, noting surgery was approved by the insurer. The risks were explained to her and Ms Jackson accepted the risks and signed the relevant consent paperwork.
On 13 September 2018 Dr Abrasko reviewed Ms Jackson following surgery. She came with the rehabilitation consultant. Post operative recovery was noted to be unremarkable. Return to work was discussed. She was given another four weeks off work. Dr Abrasko provided this certificate and said she needed physiotherapy to assist her recovery.
On 21 September 2018 Dr Abrasko reviewed Ms Jackson again noting she attended with her niece. She noted that she felt quite well. She noted she didn’t like to go to hydrotherapy and also that she hadn’t started the physiotherapy that Dr Abrasko recommended at the last visit. Dr Abrasko again recommended physiotherapy. She wanted her to start RTW 3 – 4 weeks after physiotherapy.
On 11 October 2018 Dr Abrasko saw Ms Jackson for further review. She reported that
Ms Jackson had started to experience leg pain and also that she just started physiotherapy. Dr Abrasko issued a certificate for another eight weeks off work and that Ms Jackson was to continue with physiotherapy. She wanted to review her in two weeks time because of the leg pain.
Dr Abrasko saw Ms Jackson again on 24 October 2018. She came with the rehabilitation provider. She noted she complained of pain on the left side of the ribcage, in the lower back radiating pain to both legs pus incontinence. There is no record of any complaints about the neck.
In view of the leg pain and incontinence that had developed, Dr Abrasko ordered an MRI with contrast. Ms Jackson was certified unfit for work.
Dr Abrasko saw Ms Jackson again on 23 November 2018 with the benefit of the MRI scan with contrast. She noted Ms Jackson was still complaining of back pain which happened a couple of weeks after the operation. There was no recurrent disc protrusion but scar tissue is contributing to the problem, and intensive physiotherapy was recommended. She is certified unfit for work.
Dr Abrasko next saw Ms Jackson on 24 January 2019. There is still no record of complaints to Dr Abrasko about neck pain either as a result of injury or otherwise. She writes back to
Dr Hamad of the consultation as follows:
“I reviewed Patricia today in the office, she complained of back pain and weakness in legs, incontinence and tremor. She is due to see Dr Griffith, neurologist in mid February, I gave ger referral for MRI brain.
I explained to her that most of her symptoms are not related to her back injury and she needs to be investigated for a possible demyelinating disease or other neurological problems and I will leave it in the hands of Dr Griffith. I did give her a referral for MRI brain so that the diagnosis might be done quicker.
I recommended her to see Dr Griffith. She is currently not fit for work to mid March and fitness for work will be assessed after she sees the neurologist.”
I note the referral from Dr Hamad to Dr Griffith was not put on the basis of a work related neck injury. Nor did Dr Abrasko make any mention of neck complaints when she is talking about Ms Jackson seeing Dr Griffith and doing what she can to assist that referral and diagnosis by giving the referral for MRI on the brain.
Dr Abrasko saw Ms Jackson again on 4 April 2019. For the first time she records that
Ms Jackson complains of neck pain. She writes back to the GP as follows:
“I reviewed Patricia today in the office, Patricia is not working, Patricia saw Dr Griffith after she had an MRI of the brain.
MRI of the brain was normal, Dr Griffith neurologist stared her on tetrazepam. However she had to stop because she did not tolerate that.
She complains of back pain, leg pain, neck pain and “pins and needs”. She had a screening for DVT and her IVC vein is patent.
She is not fit for work till the end of May. She is due to see the pain specialist
Dr Manohar I will review her after she sees Dr Manohar.”
The first reference to neck pain as a result of the subject injury is a reference to it being as a result of the wheelchair incident (29 March 2018) and appears to have been reported to
Dr Abrasko that neck pain resulted from this injury at the consultation on 11 April 2019. She wrote back to the GP:
“I reviewed Patricia today in the office. Last time I saw her on 4^th April 2019 when she was recommended to see pain specialist Dr Manohar.
Patricia presented today. Her back pain is still there. She saw Dr David Manohor who recommended an MRI of her cervical spine. MRI of the cervical spine shows C5-6 and C6-7 disc bulges specifically on the foramen and foraminal stenosis on the left side at C6-7 level and C7-T1 left arachnoid cyst which is of no clinical significance.
She does complain of some numbness on the face. An MRI the brain which was done in February this year was normal.
She does complain of back pain radiating to the left side with still persistent weakness in the left foot.
I recommended her further physiotherapy. I also recommended her physiotherapy for her neck. When she was pushing a wheelchair and was using both hands, that is when the injury to her neck happened.
She will clarify it with her insurance.”
Dr Abrasko saw Ms Jackson again on 18 July 2019. Ms Jackson had started light duties and was not coping well. The report back to the GP refers only to complaints of back and leg pain and Dr Abrasko only reports on an examination of the back and leg. She recommended a seated MRI scan.
On 22 August 2019 Dr Abrasko reviewed Ms Jackson with the benefit of the seated MRI scan of the lumbar spine. The report back to the GP concerns only the findings regarding the back and a referral to Dr Di Mascio, in respect of the vascular aspects of the fusion surgery now under consideration.
At further review on 19 September 2019 Dr Abrasko notes Dr Di Mascio has not supported the fusion surgery because of risk. She also records;
“she also complains of neck pain., there are some mild disc bugles which are due to her work related injury, I recommended her exercises for that she and will bring me an MRI of the cervical spine on a later date.
Her MRI of the cervical spine was done in April and that showed some spondylitic changes at C5-6 and C6-7 level but no cord compression, possible impingement of the left C6 nerve root.”
Dr Abrasko reviewed Ms Jackson again on 31 October 2019. She noted worsening back pain. She reported in respect of the neck:
“She also complains of severe neck pain, her neck pain happened during injury and she reported it straightaway somehow it is being neglected by her insurer. We reviewed the MRU if the cervical spine which revealed C5/6 and C6-7 disc bulge, there is also an annular tear at C4-5 level.
I recommended her physiotherapy and we are asking the insurer for approval.”
I note Dr Abraskoo was given a history that she reported the neck injury straightaway. This history of reporting the neck injury “straightaway” appears to have been first referred to in the report of 31 October 2019. Dr Abrasko’s previous report of 11 April 2019 was the first time the neck injury was referred to and it is referred to as resulting from the first incident (the wheelchair incident of 29 March 2018). In fact Ms Jackson gave evidence in her statement that she did not report any in jury to her neck as a result of that first incident. She says through her counsel that when she reported the second incident that this should be read as including a report of injury to her neck.
Dr Abrasko saw Ms Jackson again on 5 December 2019 and noted she was still complaining of back and neck pain.
There is then a series of reports from Dr Abrasko dated 23 January 202, 26 March 2020,
14 May 2020, 10 June 2020, 25 June 2020, 23 July 2020, 22 August 2022 and
17 September 2020 all of which only mention the back. This is understandable because the reports are concerned with a progressively deteriorating situation and expressed to be awaiting approval for further back surgery from the insurer which was not forthcoming until the review on 1 October 2020 where Dr Abrasko notes the further back surgery has been approved.
On 29 October 2020 Dr Abrasko saw Ms Jackson again. Dr Abrasko notes Ms Jackson has neck pain and recommends an MRI of the neck due to theb need to know how big the cervical disc protrusions are because she will be under anaesthesia for the back surgery.
Ms Jackson underwent further surgery to her back in November 2019. She was reviewed by Dr Abrasko on 28 January 2019 who wrote back to the GP;
“she complains of neck pain and this was not recognised as a work related injury even though it happened at the same time. She had this C4-5, C5-6. C6-7 disc bugle the worst one at C5-6 level on the MRI. Recommended her C5/6 diagnostic injection with Dr Glen Schlaphoff at Spectrum radiology. I will review her with the results.”
Dr Abrasko reviewed her on 25 February 2021 after the injection but there was not much improvement after the injection.
Dr Abrasko reviewed her again on 25 March 2021. She noted the back surgery had taken place after another vascular surgeon gave the go ahead and it was approved by the insurer. In respect of the neck, she reported:
“She had an MRI of the cervical spine which showed moderate disc bulge at C5-6 and C6-7 levels. She is trying to include this disease in her workers compensation claim,
The neck pain did happen after she pushed the wheelchair, but she was overwhelmed with the back pain at the time and didn’t pay too much attention.
I recommended her X-ray flexion and extension views of the cervical spine and I will review her with the results, I also gave her pamphlet about the cervical decompression and we may offer her some form of decompression or anterior interbody fusion in the public system.”
Dr Abrasko reviewed her again on 15 April 2021. He noted progression of the cervical spine pain. She reported to the GP:

“I reviewed Patricia today in the office. She came with Xray flexion and extension view of the cervical spine. There is slight instability at c5-6 level. There is antero lesion neutral position, which looks slightly worse about 1mm on flexion, there is C2-3 more instability of about 2mm on flexion and extension. Her neck pain is getting worse. As you know she has c5-6 and c6-07 disc protrusion,. The neck pain happened after she had injury at work, initially she didn’t report her neck pain because she was really concentrating on her back, now the back pain has improved significantly and pain is starting to give her trouble.”
So now Dr Abrasko has a history that the neck pain was not reported and that this was because she was concentrating on her back which was the main problem at the time
Dr Abrasko recommended discectomy and fusion and approval was requested from the insurer.
Dr Abrasko saw Ms Jackson again on 17 June 2021 and he reports back to the GP. This time Dr Abrasko records a history of the neck having been injured in both incidents. She writes as follows:
“Her main problem is her neck. We haven’t heard from the insurance company about approval of requested surgery, As you know, she had two incidents at work which contributed to her neck pain. She never had a neck injury before, First one was in 22 March 2018 when she was dealing with a person in a wheelchair when she injured her back and at the same time her neck got stiff. She reported that, but the next day she still went to work. She felt the neck stiffness. She then had to look after patent who was lying in bed. She leaned over the patient, got her hands on the pillow. Tried to fix the pillow when the patient suddenly fell backwards and her upper body together with her neck was dragged significantly backwards.
Her upper body and the neck took the weight of this patient, which caused immediate sharp pain in her neck, the pain was so sharp she almost felt like jelly and almost collapsed. Then later on she vomited due to the pain and went to see her manager where she reported her pain,. Therefore her work was a significant contributing factor to her work injury. At that time her back pain was actually worse therefore she didn’t initially focus on that. Now once the back pain has significantly improved, she is focusing on her neck which is becoming very painful we are asking insurance company for approval of her surgery.”

This is the first report of Dr Abrasko (some three years after the injury) which mention both injuries and appears to correspond with the evidence given in the applicant’s statement, except in so far as it appears to suggest that the neck pain was reported after the first injury (Ms Jackson herself says in her statement that it was not). To the extent the report of
Dr Abrasko seems to suggest neck pain was reported after the second injury, there is no direct evidence from Ms Jackson that she specifically reported neck pain or neck injury on
22 April 2022. Counsel for Ms Jackson submitted that her evidence should be interpreted as including a report of injury to the neck on 22 April 2022 which he said Scalabrini has not traversed. I have dealt with this evidence earlier in my reasons. I find when all of the evidence is weighed in the balance there is no contemporaneous evidence of reporting of neck pain to Scalabrini as a result of either incidents.
In a report dated 19 August 2021 Dr Abrasko clarifies that the wrong date of injury was entered into the date base as 22 March 2018 and that in fact there were two dates of injury being 29 March 2018 and 22 April 2022.
A further report of Dr Abrasko dated 27 January 2022 essentially repeats the history outlines in the report of 17 June 2021.
I have set out in detail the reports of Dr Abrasko since the first consultation on 12 July 2018 because of what they reveal about the contemporaneous reports to her or lack thereof of the neck complaints.
Dr Abrasko is then asked to respond to specific questions from Ms Jackson’s lawyers and the opinion contained therein about causation must be weighed in the balance with the reports back to the GP after each consultation which have been set out is some detail above.
Dr Abrasko is asked and answered as follows in her report dated 18 July 2022:
“1. Your opinion as to the causal connection between the injury to the cervical spine and the injury at work on 29 March 2018 and/or 22 April 2028. In this respect, we note in your quotation for surgery of 14 February 2021 you refer to the date of injury as 22 march 2018. Please clarify whether that is a typographical error and whether you meant to say 29 march 2018 and/or 22 April 2018.
The date of injury as 22 March 2018 was inserted by my secretary and unfortunately it is a typographical error. Whole letter appears to have been sent without my review and corrections with multiple typo mistakes, for which I apologise, I changed secretaries in April 2022 and the new one did not follow the office manual.
The day of injury, which is confirmed by Ms Jackson the patient and my other notes, is 29 March 2018.
Ms Jackson told me that on 29 March 2018 Ms Jackson was taking the lady in the wheelchair down the ramp. The ramp surface changed from carpet to tiles, which caused the wheelchair to spontaneously accelerate and Ms Jackson had difficulties to control it since the patient was over 100kg. Ms Jackson at the same time could not let the wheelchair go so she strained significantly her back and neck trying to hold onto the wheelchair whilst it was wheeling down and at the bottom of the ramp where the wheelchair finally stopped Ms Jackson developpes severe back pain and stabbing pain in the neck.
When she got home that day her legs were collapsing and she could not lift her arms due to neck pain, she went to work the next day but she was struggling with pushing wheelchairs,
She was wearing the back brace to protect herself.
On 22 April 2018 Ms Jackson came to the room, where the man was slipping out of bed. She was trying to fix his pillow. The patient was significantly overweight, she explained to the patient that she was going to fix his pillow patients seemed to understand it. He lifted his head and shoulder and she inserted the pillow underneath him. However he suddenly slammed down collapsing on her whilst he was bent forward, this caused her severe back and neck pain. Ms Jackson reported it to the registered nurse in charge but die to shortage of staff, she was sked to stay at work. She left home around 2pm that day.
Ms Jackson had two weeks off and returned to work but kept going to the doctor.
Therefore the aggravation of her original lnjury happened on 22 April 2018.
1. Your detailed reasoning as to the causal link between the injury to the cervical spine and the work injury on 29 March 2018 and/or aggravation on 22 April 2018.
As you know she had two incident at work which contributed to her neck pain, she never had a neck injury before. First time she experienced neck pain was on 22 march, when she was dealing with a person in a wheelchair and she injured her lower back. At the same time, her neck got stiff. She reported that, but the next day still she went to work. She felt the neck stiffness, she was still wrong and on 22 April 2018 she had to look after a patient who was lying in bed. She leaned over the patient, got her hands on the pillow, tried to fix the pillow when the patient suddenly fell backwards and her upper body together with her neck was dragged significantly causing her significant pain,
Her upper body and the neck took the weight of this patient, which caused immediate sharp pain in her neck The pain was so sharp she almost felt like jelly and almost collapse, then later on she vomited due to the pain and went and saw he manager where she reported her pain.
Therefore her work was a significant contributing factor to her neck injury, her initial injury to her neck happened on 29 march 2018 and then aggravation of this injury took place during the incident on 22 April 2018, At that time her back pain was getting worse therefore she didn’t initially focus on her neck pain.
Now once the back has significantly improved, she is focusing on her neck which is becoming very painful.
2. Your comments on the insurer’s section 78 notices dated 14 may 2019 and 26 may 2019 disputing the injury to the cervical spine.
Her MRI of the cervical spine which showed moderate disc bulge at C5-6 and c6-7 levels. She never experienced cervical spine before the above mentioned incident, there are no significant degenerative changes visible on the radiological images. Therefore on the basis of probability the injury to her cervical spine happened during the incidents described by Ms Jackson.”
Dr Bodel, orthopaedic specialist, was the IME qualified on behalf of Ms Jackson. He provided a report dated 28 April 2022. He supports injury to the neck and the proposal for surgery. He diagnosed a soft tissue injury to the neck with mechanical symptoms for which he considers the proposed surgery is reasonably necessary.
Dr Bodel’s opinion is based on a history that the neck was injured in both incidents. He says the first injury was reported. He does not comment on the absence of a contemporaneous report of injury to the neck despite saying he has had regard to Ms Jackson’s statement which clearly says she did not report the neck. He also says she was referred to Dr Abrasko because of both back and neck pain. The evidence shows the referral was clearly made on the basis of the back only and there is no record in Dr Abrasko’s notes about the neck until April 2019 (some 12 months after the injury). Dr Bodel did not review any radiological investigations.
Scapabrini relies on the opinion of Professor Harris, orthopaedic surgeon, who was the IME qualified on their behalf.
Professor Harris saw Ms Jackson on 25 August 2022 and provided a report dated
26 August 2022.
Professor Harris took a history of the two incidents and the neck was injured in both. He recorded her current symptoms relating to the neck.
He reviewed the radiological investigation and noted of the MRI dated 26 November 2021;
“the report of an MRI of the cervical spine dated 26 November 2021 notes chronic degenerative changes in the lower levels and associated foraminal narrowing at two levels”
He conducted a physical examination the result of which he recoded as:
“Examination of the cervical spine revealed range of motion to be limited to about 50% in all directions by pain. There was generalised tenderness in the muscles around the neck, Examination of the upper limbs revealed all reflexes are normal. Power is normal in all muscle groups and there was no muscle wasting. She described altered sensation to light touch in the left thumb.”
He noted that there “was no history of any pre-existing or non work related factors but evidence of pre-existing age related degenerative changes exist on the scans”.
Professor Harris diagnosed the following:
“Ms Jackson has non specific neck pain, she does not have signs of neurological involvement in the cervical spine. Reflexes and power were normal in the upper limbs. She did describe altered sensation in the left thumb but this was not in a dermatomal pattern, the other symptoms of intermittent complete numbness and weakness and shaking in the upper limbs are not consistent with cervical pathology and not consistent with the scans, there is no evidence of pervious trauma to the cervical spine. Furthermore the history of managing a heavy patient in wheelchair using her arms and legs is not consistent with injury to the cervical spine. Similarly the injury in April 2018 is not consistent with trauma to the cervical spine. The changes on the MRI scan in 2021 are consistent with age related degenerative changes that would have been present over many years and include several levels. These changes are not consistent with the specific traumatic episodes described.”
He is asked to comment on Dr Abrasko’s and Dr Bodel’s opinion. In respect of the neck, he says:
“regarding her neck complaints dr Abrasko has diagnosed her as having disc bulges and an annular tear in the lower cervical spine, while these diagnoses are likely, as they are present in most people Ms Jackson’s age, they are not associated with previous trauma, not consistent with her workplace incident and unlikely to be related to her generalised and unusual symptoms, including her upper limb symptoms, therefore I can see no role for surgery in the cervical spine.
Regarding Dr Bodel’s report….Dr Bodel describes a “soft tissue injury involving the neck with mechanical symptoms.” I can find no evidence of significant injury to the neck either from her history or from the examination and scan findings. There are long standing degenerative changes in the cervical spine which are consistent with her age. I disagree with Dr Bodel’s opinion.”
When asked for his opinion on causation, he opines:
“There is no evidence of traumatic injury to the cervical spine. The history of events is not consent with significant injury, contemporary medical notes at the time did not report any neck pain.”
He goes onto says that there has not been any aggravation of a pre-existing condition.
I have to weigh all of the evidence in the balance when coming to a determination on the balance of probabilities whether Ms Jackson suffered an injury to her cervical spine on
29 March 2018 and 22 April 2018.
Ms Jackson bears the onus of proof.
When weighing all of the evidence in the balance I am not satisfied on balance that
Ms Jackson has discharged her onus of proof and I cannot be satisfied on the balance of probabilities that she suffered an injury to her cervical spine on 29 March 2018 and
22 April 2018.
I have weighed all of the evidence in the balance and I have taken into account all of the evidence including the following:
(a)     neck pain was not reported following the first injury on 29 March 2018 although back pain was reported:
(b)     the incident of 22 April 2018 was reported but did not include a specific reporting of injury to the neck:
(c)     Dr Abrasko bases her opinion on causation partly on the basis of severe pain in the neck following the incident on 22 April 2018 but this was not reported to the Campbelltown Hospital which Ms Jackson later attended that day;
(d)     Ms Jackson regularly consulted Dr Hamad. She says she kept reporting her neck but this was ignored by Dr Hamad. But I note that even when she was referred by
Dr Hamad to Dr Abrasko in July 2018 there is no complaint about the neck. In fact there is no complaint about the neck recorded by Dr Abrasko until April 2019, approximately one year after the injury;
(e)     Dr Hamad does record a complaint of neck pain and headaches on
7 December 2018 and his notes dates the complaints running from six weeks prior (about the end of October or six months after injury). There is no attribution made in those notes of 7 December 2018 to the work injury and in fact
Ms Jackson is referred to a neurologist to investigate the brain. There is no evidence before me of any mention of any work related neck injury in respect of the referral to Dr Griffith;
(f)      Ms Jackson saw Dr Griffith in early 2019 but there is no evidence before me about any mention of any work related neck injury to Dr Griffith notwithstanding the nature of the investigations he was undertaking;
(g)     the first record of a work related neck injury is in the report of Dr Abrasko on
11 April 2019. The first complaints of neck pain were recorded by Dr Abrasko on 4 April 2019. On 11 April 2019 the neck complaints were attributed to the wheelchair t incident on 29 March 2018; and
(h) subsequent reports of Dr Abrasko in 2021 and 2022 (some three to four years after injury) seek to correct the history and explain the absence of any contemporaneous reporting on the basis that Ms Jackson was concentrating on her back problem.
When weighing all of the evidence in the balance I note that Professor Harris has taken into account the absence of any contemporaneous reporting of neck pain at the time of injury.
Dr Bodel has not taken this into any account when reaching his opinion and Dr Abarsko’s opinion, when weighed in the balance with her contemporaneous reports, does not take into adequate account the lack of any contemporaneous reporting of the neck injury and complaints of neck pain. When weighing the opinions of the experts in the balance with all of the other evidence, I prefer the opinion of Professor Harris.
When I weigh all of the evidence in the balance I am not satisfied on the balance of probabilities that Ms Jackson has discharged her onus of proof and I cannot be satisfied on the balance of probabilities that she injured her neck on 29 March 2018 and/or on
22 April 2018 at work. The question whether the proposed surgery is reasonably necessary does not therefore need to be determined by me as there will be an award for the respondent on the question of injury.

[2022] NSWPIC 736

22 December 2022