Jesionkowski v Illawarra Retirement Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jesionkowski v Illawarra Retirement Trust [2024] NSWPIC 638
APPLICANT:	Lisa Jesionkowski
RESPONDENT:	Illawarra Retirement Trust
MEMBER:	Jane Peacock
DATE OF DECISION:	13 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; undisputed injury to the lumbar spine in fall at work; surgery sought for cervical spine; injury to or consequential condition in the cervical spine disputed; evidence weighed in the balance and held not satisfied on the balance of probabilities that the applicant had suffered an injury to the cervical in the fall or that the applicant had suffered a consequential condition in her cervical spine as a result of the injury to the lumbar spine; Held – award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

BACKGROUND

By Application to Resolve a Dispute (the Application), as amended, Ms Lisa Jesionkowski (the applicant), seeks compensation under s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury alleged to her cervical spine at work on 14 July 1997 or a consequential condition suffered to her cervical spine as a result of the injury at work on 14 July 1997.
The respondent is the Illawarra Retirement Trust (the respondent). GIO is the relevant insurer for the purposes of workers compensation.
The respondent denied liability for the claim.

ISSUES IN DISPUTE

The dispute comes before the Personal Injury Commission (Commission) because the applicant seeks compensation for surgery proposed to her cervical spine in the form of anterior cervical discectomy and fusion as proposed by Dr Nair.
There is no dispute that on 14 July 1997 the applicant suffered an injury at work when she fell on a wet floor and landed heavily onto her buttocks.
There is no dispute that the applicant injured her back at work on 14 July 1997. She came to two surgeries on her lumbar spine and later her sacroiliac joints and shoulders, the expenses for which have been met by the insurer.
The applicant also alleges that she injured her cervical spine when she fell on 14 July 1997. The dispute before me concerns only the cervical spine.
At the arbitration the applicant was given leave to amend the Application to also rely on an allegation of a consequential condition suffered by her to the cervical spine as a result of the injury on 14 July 1997. The amendment to the application was consented to by the respondent.
Liability for injury to the cervical spine is disputed. The applicant consented to the respondent being able to properly dispute the allegation of injury to or consequential condition in the cervical spine.
The respondent seeks an award for the respondent on the allegation of injury to the cervical spine or consequential condition in the cervical spine as a result of injury on 14 July 1997.
If successful on the question of injury, the applicant seeks orders in respect of proposed surgery to the cervical spine. The respondent, if unsuccessful on the liability issues concerning injury (including consequential condition), concedes that an award for the applicant for the proposed surgery can follow.

EVIDENCE

Documentary evidence

The following documents filed on behalf of each party were admitted into evidence before the Commission by consent and taken into account in making this determination:

For the applicant:

(a) the Application, as amended, and all documents attached.

For the respondent:

(a) the Reply and all documents attached, and
(b) the late documents filed by the respondent with an Application to Admit Late Documents.

Oral evidence

The applicant did not seek leave to adduce further oral evidence.
The respondent did not seek leave to cross-examine the applicant.

FINDINGS AND REASONS

The applicant seeks an award in respect of s 60 expenses as a result of injury alleged to her cervical spine on 14 July 1997 or as a result of a consequential condition in the cervical spine as a result of injury on 14 July 1997.
There is no dispute that on 14 July 1997 the applicant, an assistant in nursing, fell at work on a wet and slippery floor when pushing a resident in a wheelchair. She landed heavily on her buttocks and there is no dispute she injured her lumbar spine in that fall. She came to two surgeries on her lumbar spine as a result of the injury and later had surgery to her sacroiliac joints and shoulders. The costs of these surgeries have been met by the respondent.
The dispute arises because the applicant alleges that she also injured her neck in the fall on 14 July 1997. This allegation of injury to the neck is disputed by the respondent. The applicant also alleges in the alternative or as well that she has suffered a consequential condition in her cervical spine as a result of the injury on 14 July 1997 and this allegation of a consequential condition in the cervical spine is disputed by the respondent.
The applicant seeks a determination under s 60 that the surgery proposed by Dr Nair in the form of an anterior cervical discectomy and fusion is reasonably necessary as a result of injury to her cervical spine and/or consequential condition in her cervical spine as a result of injury on 14 July 1997. The respondent conceded that in the event that the applicant was successful on the liability question in respect of the disputed cervical spine injury or consequential condition in the cervical spine, the respondent would consent to an order being made in the applicant’s favour for the proposed surgery being made under s 60.
The dispute must be determined on the evidence and in accordance with the law.
I must decide, on the balance of probabilities, whether the applicant suffered injury to her cervical spine on 14 July 1997 or whether as a result of her injury to her lumbar spine on
14 July 1997 she suffered a consequential condition in her cervical spine. In the event I decide that she suffered either an injury to or a consequential condition in her cervical spine as a result of the injury on 14 July 1997, the respondent concedes that an award for the applicant under s 60 can be entered in respect of the proposed surgery.
The applicable law is to be found in ss 4, 9, 9A and 60 of the 1987 Act as follows:
Section 4 of the 1987 Act 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).”
Turning now to an examination of the evidence.
The applicant gave evidence in two statements dated 26 February 2024 and 1 July 2024 respectively.
In her statement dated 26 February 2024, the applicant gave evidence under the heading “the injury” as follows:
“4.     On 14 July 1997 I slipped and fell on a wet floor at Culburra Nursing Home. At the time I was employed as a nursing assistant.
5.      I landed on my buttocks with some force. I immediately felt significant pain in my lower back and buttocks which has never resolved and left me significantly disabled.
6.      On 6 August 1997 I underwent a laminectomy with discectomy at L5/S1 performed by Dr Martin McGee-Collett at Royal Prince Alfred Hospital.
7.      On 12 April 2005 I had an anterior lumbar interbody disc replacement and fusion at L5/S1 level at the St George Hospital performed by Dr Diwan.
8.      I have had a loss of sensation in my left leg and foot since the injury and that affects my balance, causing me to have many falls over the years. I have fallen in the shower and hot my head and I fall on stairs and uneven ground. I also having burning pain in the buttock, leg and foot.
9.      Over the years I have taken a significant amount of opioid medication in an attempt to manage the pain in my lower back and legs. I have also had two spinal cords stimulators inserted.
10.    I require a carer to assist me to manage on a daily basis.
11.    Over the years I also underwent bilateral sacroiliac joint fusions and surgery to both shoulders as part of the accepted claim for this injury.”
The applicant goes onto give evidence under the heading “the neck” as follows:
“12. Around the time of the initial injury I also noticed pain in my neck and left sided arm and shoulder pain, left arm numbness and weakness, burning, and migraine headaches which affected the left side of my head and face.
13.    I reported the symptoms to my GP Rosita Rossman who ordered a CT scan of my neck.
14.    I had the CT scan of my neck on 24 November 1997.
15.    I underwent physiotherapy with Virginia Rowland including traction for about a year. I also wore a neck brace at the time.
16.    The pain in my neck improved after a few years but the left sided pain, weakness and numbness and burning never resolved.
17.    I have constantly complained about the symptoms to very doctor I have seen since but everyone dismisses me because the 1997 CT scan was reported as showing no abnormality.
18.    In April 2013 I was involved in a low impact car accident. I was stopped at a stop sign. The car behind me had also stopped but then the driver noticed a break in the oncoming traffic and stated moving before I moved. He collided with the back of my car. The collision caused minor damage to the vehicles and both cars were able to drive away. After this I had pain in my upper thoracic spine, shoulder and neck pain when moving around. I underwent six or seven physiotherapy treatments over about a year and took pain medication. I was advised it was a soft tissue injury and my symptoms resolved after about a year.
19.    I have had burning and stabbing pain and weakness in the whole left side of my body since the original injury. In recent years it has been getting worse and it feels like I am dragging the left side of my body and it is almost like I have had a stroke.
20.    One of my former GPs Dr Chea ordered brain scans, a heart stress test, lung scan and sent me to a neurologist in Bega. All the results came back clear.
21.    Dr Anil Nair performed the surgery on my sacroiliac joints which gave me some relief of the symptoms in my hips. I decided to ask him about my left sided symptoms and he then decided to investigate my neck again.
22.    Dr Nair sent me for an MRI and told me I have stiffness in my neck at C4/5and C5/6 which would be responsible for the left sides symptoms in my arm and neck.
23.    He told me this would have been caused by the strain in the original fall and I understood the scan he ordered were of significantly better quality than the one that was done in 1997.
24.    I was so relived to finally have someone listen to me and the prospect that I may get some relief of these symptoms that have bothered me for over 25 years.
25.    Dr Nair requested approval from the insurer for an injection into my cervical spine. This was not approved and I had it done anyway.
26     The injection did not provide any lasting relief so Dr Nair recommended I undergo surgery to relieve the pressure on my nerves and ease the left sided symptoms in my arms.
27     I want to go ahead with the surgery. I have very low quality of life and very bit of relief makes the world of difference to me.
28.    The insurer had denied liability for the surgery and I intend to proceed with it when Dr Nair returns from overseas.”
The respondent’s counsel submitted that the applicant does not give evidence that she actually injured her neck at the time of the fall at work on 14 July 1997. He submitted that the “highwater mark” of her evidence is that it was “around” the time of her injury but she does not specify when. He notes no report of injury to the cervical spine was made and no treatment requested until the request from Dr Nair for nerve blocks in 2023 and the request in 2023 from Dr Nair for approval for the anterior cervical discectomy and fusion.
The applicant gave further evidence in her statement dated 1 July 2024 under the heading “the injury” as follows:
“4.     I wish to expand on the details provided about my fall on 14 July 1997.
5.      On that day I was working as a Nursing Assistant at Culburra Nursing home.
6.      I was pushing a resident in a wheelchair down the hallway towards the dining room for lunch.
7.      The cleaner told me the floor was wet and advised me to be careful.
8.      I knew from past experience that when the linoleum floor was being cleaned it was extremely slippery and shiny like glass. The cleaners would usually clean one side of the hallway and then the other.
9.      The resident wanted to go to his room before going to the dining room. his room was on the wet side of the hallway.
10.    I was wheeling the wheelchair down the dry side of the hallway and I noticed another elderly resident walking towards me on the dry side.
11.    I then moved the wheelchair to the wet side and started carefully walking towards the resident’s room.
12.    After taking about 3 steps my feet suddenly skipped forward from under me and I landed heavily on my backside the force of the fall jarred my whole spine up to my head.
13.    It happened so quickly I had no time to break my fall.”
The extent of the applicant’s evidence in her second statement about injury to her neck on 14 July 1997 is that the force of the fall jarred her whole spine up to her head.
There was no report of injury to the cervical spine made with the report of injury on 14 July 1997.
There is otherwise no contemporaneous clinical record or contemporaneous records of complaint about the neck which supports a report of injury to the cervical spine in the fall on 14 July 1997.
I note that there is no evidence given in either of the applicant’s statements which would support a finding that the applicant has suffered a consequential condition in the cervical spine as a result of the injury on 14 July 1997.
The clinical records of the general practitioner (GP) Dr Rossman are in evidence but these are limited to August 1997 to December 1997. This is despite the fact that Dr Rossman treated the applicant prior to her injury and continued to treat the applicant up to at least 2010 which I had to glean from the letters from Dr Rossman in evidence in 2024 and 2010 which concern the back and shoulders respectively.
There are letters from Dr Rossman in evidence that support the requests for surgeries undertaken to the applicant’s back and shoulders.
There is a letter from Dr Rossman dated 15 October 2004 addressed “to whom it may concern” supporting a request for further surgery to the back. That letter refers to the applicant having suffered an injury to her lower back at work in July 1997 and Dr Rossman having a good understanding of the applicant’s situation because she has treated the applicant before and after the injury in 1997.
There is also a letter from Dr Rossman to the insurer undated except for a facsimile transmission date of 22 July 2010 at the top of the letter. This is a letter that supports arthroscopy of the shoulders in which Dr Rossman writes as follows:
“Lisa injured herself in a fall at work on 14/7/1997.
Her main injury was to her lumbar spine -causing her the most pain which was managed as you know.
On 16/9/1997 Lisa mentioned that she was getting aching in in her shoulders
On 24/101997 Lisa stated that since the fall she has had pain in her left shoulder and headaches. Again on 19/12/1994 she stated that her shoulder, neck and arm is aching with a dragging feeling in her arm.
Lisa has complained of shoulder symptoms from the injury in 1997 but her lower back was causing her the most pain so it did not feature greatly in her management, now the back has stabilised – not good but stable, and the shoulder symptoms are more of a problem.
I feel arthroscopy is indicated.”
There is no report from Dr Rossman in evidence supporting the surgery for the neck.
The only clinical records from Dr Rossman that are in evidence span from August 1997 to December 1997.
The clinical notes of Dr Rossman that are in evidence commence in August 1997. The fall was on 14 July 1997 but any notes prior to August 1997 have not been put in evidence.
On 12 August 1997 Dr Rossman notes the disc surgery to the back on 6 August 1997.

On 19 August 1997 Dr Rossman notes ongoing back pain.
On 16 September 1997 (two months after injury) Dr Rossman records:
“Headache and vomiting
Mainly frontal at top of head, but pain moves with position of head
Osinus symptoms
Began at end of last week 6/7- mild than gradually worsening getting aching in shoulders and elbow
But mild headaches since surgery in hos in 6/52
84kg CT scan /sinusitis? panadeine forte”
The next relevant consultation is on 24 October 1997 she records that the applicant wants CT scan on neck “physio feels neck is causing headaches and left arm numbness”. She records since fall L shoulder aching and headache since fall.
There are no examination findings of the neck recorded by Dr Rossman though she ordered the CT scan.
There are consultations for workcover certificates recorded throughout November and December 1997.
On 19 December 1997 Dr Rossman notes shoulder and neck and arm aching gets “heat” and feels she is dragging arm. The doctor notes there was NAD (no abnormality detected) on the CT scan of the neck.
This is the entirety of the clinical records that are in evidence from the GP Dr Rossman or indeed any other GP who has treated the applicant in the 27 years since the injury.
The report of the CT scan dated 14 November 1997 from Dr Warwick Lee reports as follows:
“referred by Dr R Rossman
CT -cervical spine
The spine was examined with overlapping scans from c3/4 to L5?S1.
The spinal canal is of normal configuration. No disc bulge or focal herniation is detected.
The facet joints appear normal and the neural exit canals are clear.
Comment: normal examination”
There is no evidence from the physiotherapist who was treating the applicant following the surgery to the back on 6 August 1997.
A/Professor Oakshott saw the applicant at the request of the insurer and provided a report dated 22 April 1999.
A/Professor Oakshott took a history of the fall at work on 14 July 1997 as follows:
“She fell heavily at work on a wet floor. She experienced immediate pain in in her lower back and gradually increasing pain in her left leg. Left foot numbness developed several days later. She was unable to work from July 17 1997 because of her increasing symptoms.”
He notes that as a result of injury she came to surgery (L5/S1 discectomy) on 6 August 1997.
He records her other complaints as follows:
“She complains of ‘migraine headaches’. She did not have these before the operation.
These migraine headaches occur once a week and may last up to two days. They are located in the left side of her neck and the left side of her face. She has had a CT scan which she was told did not show any abnormality in her neck. She has been told that she possibly strained her neck when she fell.
She did not have a headache in today’s consultation.”
He had regard to the radiological investigation noting as follows:
“November 24 1997 – CT Scan Cervical Spine
No abnormality can be seen in these x rays”.
He conducted a physical examination which included the neck and there were no positive findings as follows:
“She was able to demonstrate a good range of painless movement of her neck.
She was able to demonstrate a good range of painless movement of both arms.
No neurological abnormality could be detected in either arm.
She demonstrated a good strong grip strength with both arms.”
He goes onto state his diagnosis in respect of the neck as follows:
“Left side neck and head pain of unknown cause. This pain is intermittent in character and she claims that it has only occurred since her surgery to her lower back. There was no evidence of any disc injury at today’s consultation”.
A/Professor Oakeshott saw the applicant in April 1999. He was given a history that she suffered migraine headaches coming from the left side of her neck and left side of her face since the operation. There were no positive findings on physical examination and he had regard to the CT scan which showed no abnormality. He did not support the applicant on causation in respect of the neck being injured either in terms of a frank injury when she fell or in respect of a consequential condition.
I also note that the applicant did not give any direct evidence in the proceedings to the Commission in either of her statements about the onset of migraine headaches and neck pain coming on after the operation on her back. Her statements do not give evidence with any specificity about the onset of symptoms in the neck or the onset of migraine headaches.
A/Prof Oakeshott who saw her 1999 (some two years after injury) and being given a history that migraine headaches only occurred since the surgery could not find any signs of injury in the neck either in respect of his physical examination of her which revealed no positive findings or in respect of the available radiology (CT scan in November 1997) which showed no abnormality.
He went on to attribute her ongoing back condition wholly to the fall at work on 14 July 1997 but he made no attribution of causation in respect of the neck to the injury on 14 July 1997 or its sequalae.
Counsel for the applicant asked me to have regard to a paragraph in the judgment of Dunford J in 2000 where the Judge refers to a report of Dr Burgess of July 1998, orthopaedic surgeon (who appears to have been an IME and not a treating doctor), which records that the applicant complained to him of migraine headaches and a painful loss of neck movement and neurological symptoms in the left arm. Dr Burgess considered that her cervical spine was jarred in the fall affecting the rate of cervical spondylosis.
The report of Dr Burgess is not in evidence before me. I am not assisted in being able to weigh that report in the balance with the other evidence before me by being able to have regard to the history taken, the radiological studies he had regard to, or the results of any physical examination he conducted.
I am not asked to find that there is any estopell that arises from Dunford J’s judgment.
A paragraph in a judgment that refers to a conclusion formed by a doctor whose report was in evidence before that Judge but is not before me simply has little to no weight in these proceedings. As I understand it a claim for injury to the neck was not before the Judge and no finding about injury to the neck was made. Moreover the judgment of Dunford J was overturned on appeal.
Dr Mills, consultant physician in occupational medicine, was qualified on behalf of the insurer CGU, and he provided a report to them dated 8 December 2023 (some six and half years after the injury).
He takes a history on the fall on 14 July 1997 and back and leg pain that followed.
There is no history of injury to the neck in the fall.
Under “current status”, Dr Mills records a history as follows:
“Currently Ms Jesionkowsli reports having constant posterior lower neck pain which has been waking up after the operation of 6/8/97.
She also reports that she has pain from the top of her head to her toes affecting the entire left hemi body with all parts being equally sore. Theis has been one week post 14/7/97.”
He did not review any investigation of the neck.
He conducted a physical examination and recorded in respect of the neck as follows:
“She had full and unrestricted range of movement of her neck with right side flexion producing neck pain. There was no palpable cervical muscle spasm.”
Dr Mills summarised as follows:
“Ms Jesionowski describes slipping at work on 14/7/97. She reports that both of her legs simultaneously gave way from under her, whilst she was walking in a straight line. The result as that she landed heavily on her buttocks. She proceeded to have a laminectomy and discectomy [performed on 6/8/97.
Ms Jesionowski reports having significant ongoing disability. I note she has had a functional assessment with results being unreliable (poor pulse rate response). At this assessment she presents with a non-organic pattern and distribution of symptoms with embellishment being noted on examination. …
Examination is consistent with her having previously sustained a left L5/S1 disc prolapse.”
He went onto assess a 15% whole person impairment in respect of the lumbar spine.
He did not make any assessment of the cervical spine or diagnose any injury to or consequential condition in the cervical spine as a result of the fall on 14 July 1997.
Counsel for the applicant submitted to me that the manner in which Dr Mills recorded the history is that “waking up” means the applicant waking up to the fact she had pain in her neck because he had been preoccupied with the pain in her back. The applicant has given no evidence to the Commission to clarify what she told Dr Mills and that it should be interpreted in the manner her counsel suggests. The commonsense interpretation of the missing words is that she woke up after the operation with neck pain.
However, I note that the applicant has not given evidence to me in her statement about this. There is no contemporaneous evidence before me that she woke up after the operation with neck pain. The evidence in Dr Rossman’s clinical records is limited to the entries set out above. She told Dr Rossman on 16 September 1997 (six weeks after injury) that for about a week before that consultation she has been getting headaches at the top of her head worse when she moves and also that she had mild headaches since the operation. There is nothing reported about neck pain in that consultation or that she had neck pain when she woke up from the operation. I note the headaches experienced since the operation are described as “mild”. I also note that in the applicant’s statement evidence in these proceedings she does not give any evidence about what she experienced when waking up from the operation.
In the next consultation on 24 October 1997 Dr Rossman records that the applicant is recorded as requesting a CT scan on the neck because “physio feels neck is causing headaches and left arm numbness”. She records since fall L shoulder aching and headache since fall. This is different from what she had previously told Dr Rossman. Moreover it is not contained in the statement evidence that is before me where she simply says “around the time of the injury” she noticed neck pain.
The applicant’s counsel would seek to explain this lack of reporting or inconsistent reporting with the fact that she was preoccupied with a significant injury to her back and subsequent surgery. However the applicant has not given evidence in either of her two statements upon which she relies in these proceedings that any failure of her part to report an injury to her neck or inconsistency in the reporting of when the symptoms commenced is attributable to the pain she was in because of her back and her preoccupation with treatment for her back. Submissions from counsel to explain away inconsistencies in the reporting of an injury or an absence of reporting of an injury are not evidence.
In 2014 the applicant saw Dr Bodel orthopaedic specialist as an independent medical examiner (IME) requested to provide a report on her behalf by her lawyers. There is a report from Dr Bodel dated 25 June 2014. Dr Bodel saw the applicant on behalf of her lawyers on 25 June 2014 and reported back to them the same day. Counsel for the applicant referred me to Dr Bodel’s report in her submissions.
Dr Bodel provides a summary of injuries as follows:
“•      injury to the lower part of the back
·        Bilateral sciatic radiation of the pain and
·        Consequential injury to the neck and shoulders”.
Dr Bodel records a history of injury to the back in the fall and subsequent surgeries. There is no history taken of an injury to the neck on 14 July 1997 when she described the injury to Dr Bodel.
Under “current complaints” Dr Bodel records that as well as ongoing pain in her back and legs she has “pain in the neck and both shoulders”.
Dr Bodel conducted an examination and recorded:
“She has tenderness on the trapezius muscles at the base of the neck on both sides but no guarding or spasm. There is no asymmetry of neck movement. She has restricted range of shoulder movement on both sides.
He went onto says he has no clinical sign of radiculopathy in either arm.”
He did not view any radiological investigations.
He refers to a statement of the applicant dated 25 March 2013, which I note is not in evidence before me, about which he says:
“A statement from Ms Jesionkowski dated 25 July 2013 is noted confirming that she has had the history of injury as recorded and that she has had these series of surgical procedures initially on the back and then later surgery on the shoulders for the consequential injuries in those regions.”
I note he does not refer to the statement specifically mentioning injury to the neck and in any event it is not In evidence before me.
I would have thought that a statement dated 2013 (some 16 years after injury) if it had a history of injury to the neck or evidence which supported a consequential condition in the neck would have been put before me. The applicant relies only on her statements made in 2024 given some 27 years after injury and set out above.
Dr Bodel is asked the somewhat wide question “your diagnosis of any injury sustained by my client” (emphasis added). He answers:
“The diagnosis here is disc rupture at the lumbosacral junction requiring two surgical procedures. The injury has been complicated by the development of neurogenic pain in both legs which is persisting.
She has also developed neck and shoulder girdle pain. She was aware of the shoulder pain when in the hospital for the back surgery three weeks after the injury.
I understand the insurer has accepted liability for the surgery on both shoulders that has been undertaken by Dr Cossetto.
She indicates to me today however that current insurer has now denied liability.
Clinically I am satisfied that the shoulder pathology has arisen as a consequence of the original fall or at the very least as a consequential injury following the admission to hospital for management of back pain.”
I note that Dr Bodel does not attribute any complaints about the neck to the fall or as a consequence of the fall. He specifically opines about the shoulders and does not mention the neck. He then goes onto assess whole person impairment of the lumbar spine and the shoulders and does not mention the neck or make any assessment of the neck.
The applicant pointed to Dr Bodel’s report in support of her present case of injury to the neck on the fall or as consequential condition of the fall. But Dr Bodel does not assist her in this regard. Moreover he records a history of the problems in the neck becoming more of a problem in the last year (he saw her in 2014) so from 2013 (some 16 years after injury). But in 2013 she had a motor vehicle accident in which she injured her neck and had a year of physiotherapy to the neck. This history is not given to Dr Bodel and any support in his report, if any can indeed be found, for the applicant about the neck cannot survive the fair climate test because he didn’t have the full history.
Dr Panjratan saw the applicant on behalf of the insurer and provided a report dated 1 July 2020 which is in evidence and to which the applicant’s counsel referred me.
In that report Dr Panjratan takes a history of the fall on 14 July 1997 and ongoing complaints of back and leg pain follow back surgery and various treatments that concerned the back.
He takes no history of injury to the neck in the fall or any history supporting a consequential condition in the neck.
The only possible reference to the neck contained in his report is that he records:
“Her current complaints are a burning and freezing on the left side of her body starting from the foot and going to the left hand.”
He conducted an examination of the lumbar spine and recorded his findings.
There was no examination of the neck.
He reviewed the radiology which was of the lumbar spine, the sacroiliac joints and a whole body scan.
He did not review radiology of the neck.
He stated:
“I gained the impression that she has been told that the pain is coming from the sacroiliac joint and when asked about her complaints instead of pointing to the body part involved she said ‘it’s the sacroiliac joint’.”
He went onto diagnose chronic low back pain and did not consider the sacroiliac joint to be the pain generator did not support the proposed sacroiliac joint fusion.
I cannot see how Dr Panjratan’s report assists the applicant in respect of any allegation of neck injury or consequential condition in the neck. She did not report to him an injury to the neck in the fall. She did not report to him any history of a consequential condition in the neck. He did not examine the neck. He did not review radiology of the neck. He did not diagnose a neck injury or consequential condition in the neck. The most he reports is that the applicant said she had pain in her left side of the body that started in her left foot and went to the left hand. When asked about her pain she told him it was coming from the sacroiliac joint. The report simply doesn’t assist a finding about the neck being injured on 14 July 1997 or a finding that there is a consequential condition in the neck as a result of the injury on 14 July 1997.
There are a series of reports from Dr Ferris, pain management specialist, in evidence before me and it appears from the reports that are in evidence from Dr Ferris that he treated the applicant from a pain management perspective from 2017 (some 20 years after injury) to 2021.
The first report is 13 March 2017 which Dr Ferris himself notes is 20 years after the injury. The report of to the GP Dr Lastisha Petterson. There are no clinical records from Dr Peterson in evidence before me and nor are there any reports from Dr Petterson in support of the applicant’s case.
Dr Ferris opens with a summary as follows:
“Lisa is a 54 year old former assistant nurse with chronic mechanical low back pain and radicular pain in both legs following a work related injury 20 years ago persisting post spinal surgery and associated with sacroiliac joint arthropathy. This is on a background of high does opioid usage, anxiety , depression sedentary lifestyle and social isolation.”
I note there is no mention in Dr Ferris’ summary of the neck being injured in the fall or as a consequential condition resulting from the fall at work.
He goes onto detail the treatment which has followed, continuing symptomology and medication use. Again there is no mention of the neck.
He conducted a physical examination of the applicant but did not examine the neck.
He recommended a facet joint injection in respect of the back.
In a report dated 9 April 2018 he records a history “her pain is over the whole left side of her body”. There is no attribution of causation of the pain over the whole left side of the body by Dr Ferris to any neck injury on 14 July 1897 or any consequential condition in the neck as a result of the injury on 14 July 1997. I cannot discern from the evidence before me that he recommended any treatment that specifically targeted symptoms coming from the neck.
There is series of reports from Dr Ferris to different GPs and to the various insurers up to August 2021. They record consultations and reviews, they seek approval for various procedures: platelet-rich plasma injections (PRP); steroid injections, botox injections, and for medicinal cannabis. Not one of these pain management reports spanning a treatment history of some four years (2017 to 2021) records any history of complaints about the neck or treatment for neck pain.
I note that within this time frame Dr Ferris’ treatment (from 2017 to 2021) he has reported to three different GPs, Dr Petterson, Dr Starkey and Dr Pelpeo. Dr Peterson and Dr Starkey are both in Werrigee but in different practices and Dr Pelpeo is in Merimbula. I note that none of the clinical records from these three GPS are in evidence before me in support of the applicant’s case as to any continuity of symptoms in her neck from the fall on 14 July 1997 or as a consequence of the fall.
I also note that the applicant’s statement refers to her seeing a GP Dr Chea, who ordered various investigation of the brain and stress tests of the heart. There is no evidence before me from Dr Chea by way of clinical records or reports.

Dr Nair, spinal surgeon, asked for approval for the subject surgery in 2023 (some 26 years after the original injury on 14 July 1997).
In a report dated 5 September 2023 to Dr Dilini Pelpeo, the applicant’s GP at Merimbula, Dr Nair writes as follows:
“I reviewed Ms Jesionkowski clinically and radiologically. She remains troubled by cervical spine symptoms and worsening upper extremity radicular symptoms. On examination there is significant stiffness. There is a positive sperling sign. She has weak hoffman reflexes. We await approval for surgery. Unfortunately there has been multiple IME cancellations I trust a timely appointment can be provided.
I thank you again and look forward to be of service in the future.”
I note that there are no clinical records from the GP Dr Pelpeo that have been put in evidence so I have no evidence before me about the referral from the GP to Dr Nair or any evidence from the GP suggesting continuity of compliant about the neck resulting from the injury on 14 July 1997 or consequential thereto.
There are no clinical notes in evidence apart from the of Dr Rossman in 1997 which I have set out above.
That is, the applicant brings a claim for s 60 expenses in respect of surgery proposed to the neck in 2023 (some 26 years after injury) and does not put before me any treating evidence or record of complaints and/or treatment to the neck for the 26 years following the injury and up to the surgery request. The last clinical record about the neck is in December 1997 which is the clinical note of Dr Rossman set out above.
Dr Nair, spinal surgeon, wrote a report to the applicant’s solicitors dated 15 February 2024 at their request in a letter dated 14 January 2024.
He answers a series of questions as follows:
“1.     The diagnosis
Mrs Jesionkowski has clinical and radiological evidence of cervical degenerative disc disease.
2.     Are Lisa symptoms likely related to her neck condition and if so how?
The symptoms specifically pain in the sub axial cervical spine radiating into the occiput and upper extremities are related to cervical spine pathoanatomy, as she has stenosis evident on medical imaging which explains the aforementioned imaging. Furthermore local anaesthetic and cervical blocks in her sub axial cervical spine performed in Wollongong hospital in mid 2023 helped assuage her symptoms for a few hours corroborating clinical hypothesis that the C4/C5 and C5/6 levels are the pain generators.
3.     Given the history provided did the fall on 14 July 1997 cause or materially contribute to Lisa’s current neck condition. Please explain the reason for you opinion.
Based on the evidence at hand the condition is due to the index injury on the 14^th July 1997 . scrutiny of the medical records does reveal that she had symptoms in the sub axial cervical spine shortly after the time of the injury. She was treated with psychical therapy as well as neck bracing. The fact that she injured her lumbar spine is undisputed and non contentious. There is an increasing body of evidence in the scientific literature demonstrating the incontrovertible link between various segments of the axial skeleton the lumbar spine and the cervical spine).”
He then goes onto refer to two studies (one which examined 55 individual and one which examined the radiology of 152 patients) which are not attached to his report and which are not put into evidence before me. The respondent also pointed out that there is no evidence that these studies have been peer reviewed.
Dr Nair then goes onto state:
“In summary the cause of the current cervical pathoanatomic is multifactorial with a significant contribution from the index injury on the 14^th July 1997. Scrutiny of the medical records reveal Ms Jesionkowski has had symptoms dating back two decades that were likely relatable to cervical spine pathoanatomic secondary to the index injury. There is also a consequential component secondary to her lumbar sone condition as is recognised in the spinal surgical literature.”
Actually the clinical records are limited to 1997. There is not 20 years of treating medical records in evidence before me. There are reports from various IMEs (A/Prof Oakeshott, Dr Mills, Dr Bodel and Dr Panjratan) as I have set out above and none of which could be considered to support the applicant in respect of the allegation of injury to or consequential condition in the neck as I have detailed in the reasons above.
Moreover Dr Nair makes no mention, when attributing 20 years of symptoms stemming from the index injury, about the motor vehicle accident in 2013 when, according to the applicant’s own statement evidence, she was actually treated for 12 months for an injury to the neck.
I also note that he refers to the applicant being treated with a neck brace following the injury on 14 July 2017. The applicant says in her statement she wore a neck brace but does not detail who prescribed the brace or when she was prescribed the brace or how long she had to wear it for. There is no treatment record or report before me that recommends a neck brace. Dr Rossman’s clinical notes do not refer to a neck brace or the applicant wearing or needing one. Not one of the IME reports that are in evidence before me records the applicant as presenting with a neck brace.
Dr Nair also opines a consequential condition in the cervical spine as a result of the injury to her lumbar spine. I note this is not put on the basis that she woke up with headaches or neck symptoms after the first operation. Rather he states it is well accepted that the cervical spine condition is consequential upon the lumbar spine injury and refers to two non-peer reviewed studies that deal with 55 and 152 patients respectively. These studies are not put into evidence. These studies assist Dr Nair to the view that because her lumbar spine has been injured, that leads to compensatory degeneration in the cervical spine, then a consequential condition in the cervical spine can be readily accepted.
He proposes an anterior cervical discectomy and fusion. He says she has only been offered surgery after undergoing extensive conservative care. However this begs the question of where is the evidence that she has undergone extensive conservative care for the neck symptoms. He refers to pain management being undertaken. As set out above Dr Ferris has not been treating her for her neck pain. Moreover there is not one scintilla of treating medical evidence put before me in relation to the neck apart from the limited entries in Dr Rossman’s notes in 1997 (some 27 years ago) and apart from ordering the CT scan on the neck at the applicant’s request, Dr Rossman notes do not evidence any treatment plan that she prescribed for the neck.
Whilst considerations of the extent of conservative management undertaken primarily go to the issue of whether the surgery is reasonably necessary (a determination about which I am not required to make), Dr Nair’s declaration that extensive conservative care has been provided for the neck is completely at odds with the evidence that has been put before me. It suggests that Dr Nair has misconstrued what has actually happened treatment wise in respect of the neck in the same vein as him referring to the treatment records showing 20 years of symptoms in the neck since the original injury when there is simply no such treatment evidence before me to that effect.
Dr Nair provided a further report to the applicant’s lawyers at their request again answering a series of questions as follows:
“1. On the balance of probabilities when Lisa slipped and fell on 14 July 1997 landing heavily on her buttocks did she sustain a jarring injury to her neck?
There is certainly a possibility that the slip and fall would have caused an injury to her cervical spine. Indeed Mrs Jesionowski underwent medical imaging of her cervical spine due to the fact that she was symptomatic in the region. A full landing on the buttocks is an axial loading injury which would have imparted moments of force throughout the length of the axial skeleton or spinal column. Thus the moments of force would have been transmitted into the cervical spine region.”
I note there is no attempt by the doctor in referring to the CT scan being ordered to address the history recorded in the clinical notes that led to the scan being ordered.
Dr Nair went onto answer the next question as follows:
“2. What, if any, pathology would you expect to see from such an injury on a CT scan taken shortly after the injury?
A CT scan is a direct assessment of bony anatomy. It is a crude surrogate assessment of the intervertebral discs as well as new row elements. A CT scan would often be reported as normal as the reporting radiologist would typically only focus on the bony anatomy. It is important to note that MRI scans were not readily available in 1997. Thus clinicians most of the time were often reliant on inferior imaging modalities.
3. Is there any pathology in the 1997 scans, which on the balance of probabilities, is attributed to the accident on 14 July 1997.
The CT scan was reported as normal however this does not rule out an injury to the ligaments, motion segments, or neural elements.
It is important to note that the standard of care in 2024 as recognised the Royal Australian College of Surgeons is to obtain either an MRI scan or at the very least flexion extension X-rays of the cervical spine to assess for damage to cervical motion segments.”
Dr Nair’s opinion that the CT scan in 1997 being reported as normal is suggestive of a deficiency in the radiology ignores completely the fact that every past IME report that is before me in evidence (A/P Oakeshott, Dr Mills Dr Bodel, Dr Panjratan) records no positive findings in the neck on clinical examination. Moreover, there is no treating specialist report or GP report before me that show otherwise because there are no treating reports before me with the exception of Dr Ferris who does not examine or treat the neck.
Dr Nair goes onto answer a further question about the cervical spine being consequent on the lumbar spine injury as follows:
“6. On the balance of probabilities, did the loss of lumbar lordosis due to the lumbar spine injury and subsequent surgery, cause or materially contribute to the development or progression of the degenerative changes and stenosis in Ms Jesionkowski’s cervical spine.
There is certainly a possibility that loss of lordosis was contributory. There is an increasing body of evidence in the scientific literature demonstrating the incontrovertible link between various segments of the axial skeleton (the lumbar spine and cervical spine).
The investigators in Endo Et al Journal of orthopaedic surgery 2016, a cross sectional stud of 55 individuals; revealing that decreasing lumbar lordosis results in increasing of thoracic kyphosis as well as compensatory cervical lordosis which results in increasing rates of degenerative wear in the cervical spine. Simply speaking the authors identified that the compensatory mechanisms employed by the cervical spine (compensation for lumbar injury and deformity) results in increased rates of cervical deformity. The investigators in Morishita et al Asian Spine 2018; a retrospective radiological review on 152 patients with symptoms related to cervical and lumbar spondylosis found a positive correlation between degeneration in the cervical and lumbar spine. Thus simply speaking the authors demonstrated increased risk of the development of cervical degermation following a lumbar spine degeneration.”
There is no attempt by Dr Nair to relate the two studies’ findings to the applicant’s presentation over the years, either clinically or radiologically. All he can say is that two studies have found a connection between lumbar injury and increased rates of cervical degeneration of a compensatory nature. There is no attempt by him to correlate it to the specific circumstances of the applicant’s case or to relate it to the medical and other evidence in the applicant’s case.
Dr Nair is asked and answers a final question as follows:
“7. In your opinion, on the balance of probabilities, in the absence of the fall on 14 July 1997, would Ms Jesionkowski require the C4/5 and C5/6 anterior cervical discectomy fusion and bone grafting at this stage her life due to other factors such as age related changes or the low impact motor vehicle accident she has described?
In the absence of the fall, it is highly unlikely that Ms Jesionkowski would require C4/5 and C5/6 anterior cervical discectomy fusion bone grafting at this stage of her life.”
I note Dr Nair does not explain why he comes to this view.
The respondent relies on the opinion of Dr Sheehy neurologist who was qualified to provide an opinion of their behalf. Three reports from Dr Sheehy are in evidence dated 20 November 2023, 28 November 2023 and 18 September 2024 respectively.
In his first report dated 20 November 2023 Dr Sheehy records under “history of injury” the fall as follows:
“An injury occurred on 14 July 1997 after wheelieing a resident in a chair she turned backwards and slipped on a wet floor and fell heavily on her buttocks causing the development of back and leg pain.”
He then details a consistent history regarding treatment of the back pain including surgery.
Under “history of injury” there is no recording of the reporting to him of neck symptoms in the context of the fall or subsequent to the surgery.
Under “history of the present complaints” Dr Sheehy records:
“She complains of ongoing low back pain and of pain radiating into both legs. She complains also of neck pain and her arms feeling heavy and hard to move. She feels as a consequence it is difficult if she has to eat her food with a spoon rather than using a knife and fork. She complains of stiffness in the neck especially waking in the morning, stiffness in the back is worse with sitting and walking.
She complains of a numbness affecting the left side of her face, her left upper limb left body and left lower limb.
There are no true radular upper limb symptoms.”
Dr Sheehy conducted a physical examination and recorded his findings as follows:
“She holds her head and neck titled to the right. She has a scanning dysarthria and at times an air gasping. Cervical flexion was painful and of normal range, extension was of normal range. She was impaired in the lateral titrate and lateral rotation of the neck bilaterally in the terminal 20%. Tone bulk and power in the upper limbs were normal as were the reflexes.”
He had regard to the radiological report as follows:
“I have seen an undated report of an MRI of the cervical spine undertaken at SouthEast radiology which demonstrated multilevel degenerative changes with associated multilevel neural exit foraminal narrowing secondary to osteophytes most marked at C4/5 on the left. The study also reported mild bilateral neural exit foraminal narrowing at C5/6 and right sided neural exit foraminal was patent at c6/7 and advanced left facet joint osteoarthritis was noted at that level with moderate left neural exit foraminal narrowing at C6/7.”
I note the MRI report is in evidence and is dated 11 April 2023.
He notes the report of Dr Candice Delacourt neurologist dated 13 March 2023 which is not in evidence before me.
He is asked “what is the diagnosis of injury?” and he answers that it is the “disc disruption of the L5/S1 on the right on 14 July 1997”.
He is asked “Has work been a substantial contributing factor to the diagnosis and if so how? In particular is the cervical spine diagnosis causally related to the injury of 14 July 1997? Please outline the reasons for your opinion.” Dr Sheehy answers:
“Lumbar symptoms occurred after the fall.
I have seen the report of Dr Bodel 25.6.2014 and he noted that neck and shoulder girdle symptoms did not become a particular problem until some years later and I have been unable to find any reference to cervical symptoms following the injury and as such I am unable to substantiate that the cervical spine diagnosis was causally related to the fall.”
He did not consider the proposed nerve blocks would benefit the applicant noting:
“She does not suffer ant radicular upper limb and peri radicular nerve blocks and peri radicular nerve blocks despite the description of foraminal narrowing on the MRI scan will not be of assistance as a consequence.”
I note the applicant did go onto have the nerve blocks and they provided only a few hours relief.
Dr Sheehy provided a further report to the insurer at their request dated 28 November 2023 which did not involve an examination of the applicant and which is not relevant to this dispute because it was about the sacroiliac joints.
Dr Sheehy was then asked to re-examine the applicant in respect of the neck claim and he provided a further report dated 18 September 2024. He indicated he reviewed his previous reports and “the ARD filed in these proceedings with attachments”.
Under “history of injury”, he recites the history of the fall causing a back injury and subsequent surgeries.
Under “history of the present complaints” he records:
“She sleeps poorly and complains of her neck not feeling strong enough to hold her head up. She complains of her head and neck starting to turn spontaneously and spasms occurring approximately three years ago.
The painful neck saps he energy and makes neck movement worse. She complains there is a lot of sharp pain in the elbows and at times pain in the left arm and forearm radiating to the fingers.”
Dr Sheehy conducted a physical examination of which he recorded as follows:
“On examination she has a full range of cervical flexion and extension. Lateral tilt and rotation to the right was impaired in the terminal 10* and almost impossible to undertake turning to the left in either rotation or lateral tilting. I felt no abnormality of tone or power in the upper limbs with symmetrically and normally elicitable tendon reflexes.”
He referred to the imaging as follows:
“I have seen the report of the MRI of the cervical spine on 11 April 2023. On the right at the C3-4 levels there is a moderate to severe neural foraminal stenosis
At C4-5 there is severe left foraminal stenosis
At c506 there is mild exit foraminal stenosis and at C6-7 a moderate left foraminal stenosis.”
Under “reports” he notes as follows:
“I have seen the report of Dr Bodel 25 June 2014 who noted that while she was in hospital after the surgery of the lumbosacral junction undertaken by Dr McGee-Collett that she developed severe migraine headaches with pain in the neck radiating to the shoulders, clear to the neck and shoulder girdle are. Neck pain did not become a particular problem until some year later.
I have seen the report of Dr O’Neill (sic- Dr Nair)15 February 2024. He noted symptoms of subaxial cervical pain radiating to the occiput of the upper extremities which he opined were related to the cervical spine pathology as she has stenosis present on medical imaging. Further the local anaesthetic of the subaxial cervical spine performed in Wollongong Hospital in mid 2023 helped improve her symptoms for a few hours corroborating the clinical hypothesis that the C4/5 and C5-6 levels are the pain generators. He opines that in summary of the current cervical pathoanatomy is multifactorial with a significant contribution from the initial injury of 14 July 1997 and that there is a consequential component secondary to her lumbar spine condition. He recommended an anterior cervical discectomy and fusion.”
Dr Sheehy is then asked a series of specific questions.
He is asked “whether or not the worker injured her neck on 14 July 1997” and he answers:
“There was no historical evidence in the history that she gave me on 20 November 2023 of an injury to the neck sustained at the time of the fall and there is no history of significant neck symptoms developing until some years after the fall in the report of Dr Bodel (25 June 20014) I do not have evidence that the neck symptoms are causally related to the incident of 14 July 1997 and for that reason cannot support the neck surgery proposed by Dr Nair being reasonably necessary as a result of the incident on 14 July 1997.”

He is asked “whether or not the workers neck issues are in any way connected the incident on 14 July 1997” and he answers:
“There is no historical evidence in the report I took or subsequent report by Dr Bodel on 25 June 2014 of the neck injury occurring at the time of the lumbar injury. There is no radicular pain affecting either upper limb but there is evidence of foraminal compromises in the MRI scan.”
He is asked “is the neck surgery proposed by Dr Nair in some way connected to the incident on 14 July 1997” and he answers:
“I have been unable to connect the surgery with the incident on 14 July 1997 for the reasons outlined in my report”.
I have to have regard to the totality of the evidence and weigh the evidence in the balance to come to a decision whether it is more likely than not the applicant injured her neck in the fall on 14 July 1997 or as a consequential condition resulting from the injury to the lumbar spine on 14 July 1997. When I weigh the competing opinions of Dr Nair and Dr Sheehy in the balance with the other evidence, I prefer for the reasons given throughout the opinion of Dr Sheehy. When I weigh the totality of the evidence in the balance I am not satisfied on the balance of probabilities, for the reasons given throughout this determination, that the applicant suffered an injury to the cervical spine in the fall at work on 14 July 2017 or that she has suffered a consequential condition in the cervical spine as a result of the injury to the lumbar spine on 14 July 2017. When I weigh the totality of the evidence in the balance I am not satisfied on the balance of probabilities, for the reasons given throughout this determination, that the applicant has discharged the onus of proving that she injured her cervical spine in the fall on 14 July 1997 or that she suffered a consequential condition in her cervical spine as a result of the injury to the lumbar spine on 14 July 1997. Accordingly, there will be an award for the respondent.

[2024] NSWPIC 638

13 November 2024