Jordan v Endeavour Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jordan v Endeavour Group Ltd [2024] NSWPIC 473
APPLICANT:	Leisa Karen Jordan
RESPONDENT:	Endeavour Group Limited
MEMBER:	Diana Benk
DATE OF DECISION:	27 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim compensation for injuries to right shoulder, left wrist, cervical and thoracic spine; injuries to the cervical spine and upper extremities accepted by the respondent; respondent disputed that the applicant sustained an injury to her thoracic spine; no contemporaneous complaint or symptoms; Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Hancock v East Coast Timbers Products Pty Ltd and Davis v Council of the City of Wagga Wagga discussed and applied; Held – award for the respondent in respect of alleged thoracic spine injury; balance of accepted claims referred to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a workplace injury to the cervical spine, right shoulder and left wrist on 24 June 2020 (deemed). 2. The respondent to pay the applicant’s reasonably necessary medical expenses in relation to right shoulder plasma rich platelet injections as recommended by A/Prof Russo with reference to s 60 of the Workers Compensation Act1987. 3. Award for the respondent with respect to the thoracic spine. 4. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment arising from injury on 24 June 2020 (deemed) to the; (a) left upper limb (wrist); (b) right upper limb (shoulder), and (c) cervical spine. 5. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Application to Admit Late Documents dated 9 August 2024 filed by the applicant.

STATEMENT OF REASONS

BACKGROUND

On 13 October 2023, Ms Leisa Jordan, (the applicant), made a claim for lump sum compensation arising from impairments to the cervical spine, thoracic spine, right upper extremity (shoulder) and left upper extremity (wrist) claimed to relate to employment injury with Endeavour Group Limited (the respondent) on 24 June 2020 (deemed).[1] She also requested the insurer accept liability for plasma rich platelet (PRP) injections.
[1] Folio 99 of the ARD.
The workers compensation insurer assessed the matter in accordance with the Workers Compensation Act 1987 (the 1987 Act) and arranged for an independent medical assessment. On receipt of that assessment it responded[2] to the claim by;
(a)    accepting injuries to the cervical spine, right shoulder and left wrist but declining to make an offer of lump sum compensation as its qualified medical opinion did not reach the threshold with reference to s 66 of the 1987 Act;
(b)    disputing that the injury claimed to the thoracic spine arose out of employment on the basis that employment was not a substantial or main contributing factor to any thoracic spine injury or disease – ss 4, 4b and 4(b)(ii) and 9A of the 1987 Act, and
(c)    disputing liability with respect to the PRP injections due to insufficient information on the relationship of that treatment to any ‘active subacromial bursitis’.
[2] Folio 102 of the ARD.
Given the dispute, an Application to Resolve a Dispute (ARD) was filed in the Personal Injury Commission (Commission) claiming lump sum compensation benefits and treatment expenses relating to the PRP injections.
The matter underwent the usual case management pathway eventuating to conciliation/arbitration where the applicant was represented by Mr Stanton of counsel instructed by Mr Mantach. The respondent was represented by Mr Stiles of counsel instructed by Mr Dissanayake. Ms Jones was the insurer representative.
Following conciliation impasse, the parties asked me to determine the issue of ‘injury’ to the thoracic spine and whether the PRP injections were reasonably necessary. Both parties agreed that pending my findings, the matter was to be referred to a Medical Assessor.
As there is no dispute relating to injury to the cervical spine, right shoulder and left wrist, these reasons will predominantly focus on the evidence as it relates to the thoracic spine and treatment expenses.
In the course of decision making, I had regard to the submissions by counsel, the ARD and its annexures, the Reply and its annexures and the Application to Admit Late Documents filed by the applicant which consisted of clinical notes of Dr Suefong.

Evidence

Applicant’s statement

The applicant was not cross examined and so her statement is the primary evidence.
In her statement dated 30 March 2023 and 15 September 2023,[3] the applicant informs me of what I consider is an impressive work history, almost unbroken between 1986 and 2022, and where she worked for the respondent between 1990 and 2022, initially commencing as a shop assistant but ultimately promoted to the position of service manager, (clearly a testament of her capability and commitment to the role, one that I consider deserves acknowledgement especially in the difficult retail environment she was engaged).
[3] Folio 1 to 8 of the ARD.
The initial statement confirms the work was at times physically demanding with much heavy lifting, unloading of cartons, repeated manual handling both on the bottle shop floor and at the cash register which all played a role in the development of her left hand, right shoulder and neck complaints, where symptoms commenced in about 2010.
The applicant has been medically managed by her long term medical practitioner,
Dr Suefong, Dr Petrelis (orthopaedic surgeon) who ultimately undertook right shoulder surgery in 2021, Dr Meads (upper limb and hand surgeon) who undertook wrist surgery in March 2021, Dr Abson (spinal surgeon), who provided management for her neck, and
Dr Kadavil and A/Prof Russo, both pain management specialists. She has also been managed by physiotherapists and a pain management psychologist.
The statement then informs me that despite symptoms in the neck, shoulder and wrist she persisted with her work, albeit with fluctuating hours until the respondent terminated her employment due to her inability to return to pre injury duties on 14 July 2022, a decision which was “devastating” particularly after 32 years of continuous employment, a statement with which I am sympathetic.
Difficulties with management of her claim are then disclosed, particularly the reduction of weekly benefits. Continuing symptoms and disabilities are described as pain and aching and restriction of movement in the right shoulder, arm and neck worse with physical activity and specifically lifting, pulling and pushing. Pain has extended into the elbow and hands, back of the shoulder, both sides of the neck and upper back. Sleep and lifestyle are disturbed.
In her subsequent statement,[4] the applicant again repeats her symptoms describing severe pain in the right shoulder/arm, neck and left hand along with tingling in the right hand, when the right shoulder and arm pain is severe.
[4] Folio 8 of the ARD.
Notably, the applicant’s statement is silent on thoracic symptoms or injury.

Medical evidence

Dr Petrelis, orthopaedic surgeon

Serial reports between 31 August 2020 and 8 February 2022[5] document management for the right shoulder. I could find no record of injury to the thoracic spine in these reports. There are movements of the shoulder recorded up to the level of T8 but no symptoms or injury described. Expressing concern about symptoms in the cervical spine, a suggestion was made for referral to a spinal surgeon.
[5] Folio 36 to 49 of the ARD.

Dr Abson, spinal surgeon

Dr Abson in his report dated 21 February 2022[6] to Dr Petrelis recorded the work related injury in 2020 resulting in severe right sided referred pain of a burning nature down to the shoulder, not associated with weakness or tingling, unresponsive to conservative management with an MRI revealing C3/4 foraminal stenosis. The report is silent on any thoracic symptoms or injury. A subsequent attendance on 4 April 2022, confirmed a cortisone injection was undertaken but failed to provide relief. Surgical intervention was not recommended.[7]
[6] Folio 52 of the ARD.
[7] Folio 54 of the ARD.

Dr Meads, orthopaedic surgeon

Reports between 7 September 2020 to 28 July 2021[8] provide a history of injury but predominantly focus on the hand and wrist symptoms for which the referral was made. There is no mention of thoracic symptoms or injury.
[8] Folios 55 to 60 of the ARD.

Associate Professor Russo

At assessment on 16 November 2022[9] the diagnosis was (unedited):
“Leisa presents with persistent right shoulder pain that is a mixture of nociceptive and neuropathic pain. She appears to have some localised coracoid enthesopathy based on the type of pain and her coracoid tenderness as well as functional entrapement of the brachial plexus from her forward head posture and contribution of scalene muscle spasm”
[9] Folio 62 to 65.
As regard treatment, cognitive and behavioural management therapy was recommended, along with antidepressant therapy, PRP injections and interscalene nerve block with the possibility of further interventional pain therapy.
At a further review on 5 April 2023, [10] it was recorded that the nerve block had provided a one third reduction in symptoms, arm pain had resolved but there was mainly pain over the right trapezius area or over the right C4 nerve root area. A differential diagnosis of myofascial pain or C4 neuralgia was made given the C3/4 foraminal compression on the scan.
[10] Folio 68 of the ARD.
At review on 23 August 2023, A/Prof Russo noted increasing levels of right shoulder pain with ‘clear evidence of active subacromial bursitis’. A recommendation for PRP injections was made which he considered ‘will be far more effective and cost effective than a short term 3 month corticosteroid response’.[11] Costs of the PRP were estimated at $1,681 on
[11] Folio 72 of the ARD.
[12] Folio 74 of the ARD.
24 August 2023.[12]

Dr Kadavil, pain specialist

At assessment on 7 March 2022, Dr Kadavil reported long term right shoulder and trapezius pain and following examination considered “she has sensitised nervous system mostly affecting the lower cervical area. This is possibly because of her long standing shoulder pain and the operation which has led to nerve sensitisation”.[13] The report is silent on any thoracic complaints.
[13] Folio 50 of the ARD.

Liam Pattison, physiotherapist

In a report dated 26 April 2022, he recorded he had been treating the applicant weekly for strengthening therapy but her cervico brachial symptoms had not been improving which fell short of his expectations.
He noted worsening lethargy and bilateral arm shoulder symptoms including joint aches and heaviness and on examining the thoracic spine noted it to be hypo mobile and with an unusual fatty deposit. He asked Dr Suefong to arrange an MRI or a CT scan to assess the fatty deposit as he had concerns that this could indicate symptoms of a “non mechanical nature”.[14]
[14] Folio 92 of the ARD.
At assessment on 6 September 2022, he recorded the reporting of bilateral paraesthesia in her the arms and down both legs mainly at night, and considered it may be due to some kind of general inflammation.[15]
[15] Folio 94 of the ARD.

Dr Sherman Kueh, radiologist

In response to a request for an MRI of the thoracic spine the following investigation findings were reported on 6 June 2022 (unedited):[16]
“Within the T9 vertebral body posterior to a presume fat containing haemangioma, there is an area of interminate/low T1 and STIR high signal change situated right posteriorly, possibly extending to the adjacent pedicle. Characterisation is limited on an MRI study, and the exact nature of this bone changes is not certain?possible fracture? Further bone lesion? Other. This needs to be reviewed with a dedicated CT in the first instance.
Allowing for a presumed further small haemangioma at T10, no definite further vertebral body lesions are appreciated on the current study.
There is some minor degenerative changes within the thoracic spine without significant canal stenosis or convincing evidence of thoracic cord or nerve root pathology”
[16] Folio 89 of the ARD.
On 12 July 2022, a further MRI[17] it was reported:
“previous MRI documented area of signal change within the T9 vertebral body on the right posteriorly separate to a hemangioma extending into the pedicle is again noted… no obvious soft tissue component is seen on the current study…there is no evidence of a pathological fracture on CT… further review with a bone scan should be considered.”
[17] Folio 90 and 91 of the ARD.

Dr Gannon McWhirter

Dr McWhirter on assessment of the CT scan undertaken on 6 June 2022[18] concluded:
“There is a lucent lesion at the site of suspicious MRI signal in T9 extending into the right pedicle. There is no fracture on CT to account for the marrow oedema shown on MRI. This could be an atypical haemangioma. Suspicious pathology cannot be excluded with this examination, especially given the appearance on MRI.”
[18] Folio 89 of the ARD.

Associate Professor Kleinman, orthopaedic surgeon

Qualified on behalf of the applicant, on 19 July 2023, A/Prof Kleinman reported to the applicant’s solicitors.[19] I observed that he took an extensive history of injury relating to the right shoulder, left hand and wrist, and neck but does not take a similar history in relation to the thoracic spine.
[19] Folio 9 to 31.
Under the heading of ‘present complaints’ a history of interference in activities of daily living is taken with regards to the upper limbs/scapula and cervical spine, but again is silent on the thoracic spine.
Examination findings are extensive in relation to the neck, right and left upper extremities but as regards the thoracic spine it limited and was recorded (unedited):
“rotation of her thoracic spine is limited, more to the right than the left”
The report then summarises investigation findings but it is unclear if the films were inspected or if the reliance was on radiological reports only. Nothing turns on this, however
A/Prof Kleinman did document ‘a small disc prolapse in the mid thoracic region which appears to be at the level of 8/9’, however such a finding is not documented by the radiologists who interpreted and reported on the investigations.
A/Prof Kleinman opined (unedited):
“As a result of the nature and conditions of her work, she aggravated underlying, degenerative change in her cervical spine, aggravated underlying degenerative change in her thoracic spine and sustained a prolapse of a degenerative disc at T8……”
As regards the thoracic spine, he assessed a DRE Category II and offered a 5% impairment.
Regarding treatment, A/Prof Kleinman supported ongoing general practitioner and pain management treatment.

Clinical notes of Dr Suefong

Admitted as a late document, the complete clinical file (330 folios) records presentations from 2007 to 2024. The notes provide a comprehensive history of both work related complaints to the neck, lower back (in 2015), upper limb and contains the management of the workers compensation injury particularly with regards the cervical spine and upper limbs.
The first entry with respect to the thoracic spine appears to be 2022 and from that point a hemangioma was investigated. Careful review of the notes do not disclose any injury or complaint relating to the thoracic spine arising out of workplace circumstances over the 17 year attendance history. There are however many other presentations unrelated to work injury not requiring disclosure for this assessment.
Specifically consultation on 13 October 2022 records:
“Sb dr Ferch and re haemangioma in T9 and feels NAD.”
I was not able to locate any reports from Dr Ferch. I understand NAD means no abnormality detected.

Respondent’s evidence

Dr Bosanquet has been qualified by the respondent and examined the applicant on
6 November 2020 and 3 November 2023.
In his report dated 17 November 2020[20] he diagnosed rotator cuff tear with AC joint degenerative changes in the right shoulder, left wrist carpal tunnel syndrome, dorsal ganglion and compartment tenosynovitis and right carpal tunnel syndrome. He considered these conditions were related to employment activities and so were compensable and was entirely supportive of medical intervention. No complaints to the thoracic spine are recorded in this report both under history of the injury, current symptoms, past history or general health.
[20] Folio 1 to 8 of the Reply.
In his report dated 13 November 2023,[21] he again takes a similar history. No complaint of injury was made to the thoracic spine but the examination of the cervical spine does revealed the applicant was tender over the right trapezius and interscapular region, radiating down to the T8 level. In regards to the thoracic spine he reported there was no injury, no treatment and no impairment. He noted ongoing pain in the right shoulder and cervical spine, recommended restricted employment and suggested a need for ongoing pain medication.
[21] Folio 9 to 19 of the Reply.

SUBMISSIONS

On behalf of the applicant, a summary of key submissions were;
(a)    the applicant has a long history of manual labour which involved heavy lifting of a repetitive nature;
(b)    whilst it is accepted that the treating specialists have not specifically referred to any thoracic spine symptoms in their contemporaneous notes, carefully reading reveals that each of them had some concern as to the true source of symptoms resulting in multiple investigations;
(c)    Dr Bosanquet did not have the benefit of reviewing thoracic spine investigations and so his opinion is incomplete;
(d)    the report of A/Prof Kleinman is extensive and well-reasoned and clearly establishes a nexus between the workplace duties and aggravation to the previously asymptomatic symptoms in the thoracic spine, and
(e)    the PRP injections are reasonably necessary and have been demonstrated to be part and parcel of the overall pain management with measurable results to the right shoulder for which liability has been accepted.
On behalf of the respondent, a summary of the key submissions were;

(a)    as regards treatment, Dr Bosanquet supported medication but no other treatment; did not refer specifically to the need for PRP injections but admittedly the question/issue was not put to him;
(b)    since the report of injury in June 2020 the applicant has undergone much medical management including by her general practitioner, Dr Suefong, orthopaedic surgeons, Drs Petrelis and Meads, a review by a spinal surgeon, Dr Abson and pain management intervention by Dr Kadavil and A/Prof Russo each of whom are silent on any ‘injury’ or workplace symptoms to the thoracic spine;
(c)    the first complaint of thoracic symptoms was in 2022 and related to a possible haemangioma for which the applicant was extensively investigated;
(d)    A/Prof Kleinman has not provided a complete examination of the thoracic spine and it is unclear how he concluded that she suffered a disc protrusion at the T8/9 when the radiological investigations do not disclose this.   It is accepted that he may have interpreted the films but the presence of a disc protrusion does not of itself mean that there is a work related injury;
(e)    there is no contemporaneous correlation of symptoms or injury in the thoracic spine and there has been no explanation for the two year delay in reporting of symptoms, (diagnosed as a possible hemangioma) which has not been medically verified as having an employment connection either by way of injury or aggravation, and
(f)    given the above, there should be an award for the respondent in relation to any ‘injury’ to the thoracic spine.

In reply the applicant submitted;
(a) Dr Bosanquet has recorded pain and tenderness radiating down to the T8 level, and
(b) the opinion of A/Prof Kleinman is well considered and should be preferred.

APPLICATION OF THE LAW

Liability

The applicant bears the onus of proof, to establish the case of injury on the balance of probabilities with reference to ss 4 and 4(b)(ii) of the 1987 Act.[22] As indicated above, I must determine whether the applicant suffered ‘injury’ (s 4) or aggravation of a disease under s 4(b)(ii) of the 1987 Act to the thoracic spine.
[22] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
It is uncontested the applicant had pre-existing pathology in the thoracic spine (as evidenced on investigations) but was asymptomatic. It is on this basis that the applicant asserts that her employment aggravated the underlying disease process.
Section 4(a) of the 1987 Act defines “injury” as a personal injury arising out of or in the course of employment. There is no compensation payable under s 4(a) of the 1987 Act unless employment is a “substantial contributing factor” to the injury, within the meaning of that phrase under s 9A of the 1987 Act. It is well established that the phrase “substantial contributing factor” involves a causal connection between the employment concerned and the injury.[23] The causal connection must be “real and of substance”.[24]
[23] Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited NSWCA 324, [80]-[83] (per Allsop P, Beazley and McColl JA; [112]-[117] per Basten JA; [143] per Handley AJA).
[24] Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited NSWCA 324.
In Rail Services Australia v Dimovski,[25] Handley JA stated that where a frank incident aggravated an underlying degenerative condition, it could properly be regarded as injury simpliciter within s 4(a) of the 1987 Act. To establish a personal injury (or “injury simpliciter”) there must be evidence of an identifiable pathological change.[26] That the change is connected to an underlying disease process does not prevent the event from being a personal injury.[27]
[25] [2004] NSWCA 267.
[26] Castro v State Transit Authority (NSW) [2000] NSWCC 12; 19 NSWCCR 496; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; Military Rehabilitation and Compensation Commission v May [2016] HCA 19; Ky v Blue Leaf Food Group Pty Ltd [2016] NSWWCCPD 55.
[27] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; Rail Services Australia v Dimovski [2004] NSWCA 267.
Section 4(b) of the 1987 Act provides that “injury” includes a “disease injury”. Section 4(b)(ii) of the 1987 Act provides that a “disease injury” means the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease. Section 4(b) of the 1987 Act requires that employment be the “main contributing factor” to the aggravation of a disease. It is well accepted that the test of “main contributing factor” is one of causation which involves consideration of the evidence overall.[28] In Av v Aw,[29] Deputy President Snell said “in a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[30]
[28] AV v AW [2020] NSWWCCPD 9, [77]-[78].
[29] [2020] NSWWCCPD 9, [77]-[78].
[30] AV v AW [2020] NSWWCCPD 9, [77]-[78].
It is well accepted that an aggravation of a disease under s 4(b)(ii) of the 1987 Act “occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms”.[31] As Justice Windeyer said in Semlitch:
“…[t]he question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[32]

FINDINGS AND REASONS

[31]Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71, ([66] per Roche A/President); Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34, [7] (per Windeyer J).

[32] Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34, [9] (per Windeyer J).

Did the applicant suffer an injury or an aggravation of a disease to her thoracic spine?

Paragraph 49 of these reasons describes the test to establish an ‘injury’ and paragraph 51 describes the tests to establish a disease injury. In regards to the ‘disease’, as discussed above, the applicant need only establish symptoms in her thoracic spine have been made worse by employment with the respondent and those symptoms impacted her. [33] In other words, if the employment contributed to a worsening or intensifying of symptoms (including pain) in the thoracic spine, that worsening or intensification constitutes an aggravation or exacerbation of the disease, but it must be shown that employment was the main contributing factor.
[33] Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34; Cant v Catholic Schools Office (2000) 20 NSWCCR 88.
This matter is complicated by the proximity of the thoracic spine to the cervical spine, which has undoubtedly been significantly injured in the relevant sense, and the fact that the back as a whole is a single, interconnected and complicated structure.
It is fair to say, however, that the respondent relies heavily on what is not in the evidence, namely the absence of any complaints relating to the thoracic spine made to multiple treating doctors and indeed multi-disciplinary pain specialists who previously examined the applicant, save to the extent to which I referred to above relating to the hemangioma.
The respondent further relies on the fact that no treating doctor has ever made any clinical findings suggestive of injury to the thoracic spine (apart from A/Prof Kleinman) and the fact that none of those doctors have ever considered it necessary to undertake radiological investigation of the thoracic spine until the concern was raised by the physiotherapist in relation to the collection of fatty deposit over the thoracic spine.
The evidence establishes and, suffice it to say that I accept that the applicant has consistently made complaints in relation to her cervical and upper limb symptoms and many other non work related medical complaints to numerous doctors on multiple occasions over a long period of time but has not made complaints in relation to the thoracic spine other than those referred to above, in spite of having had multiple opportunities to do so.
Overall, I am not satisfied that the applicant has suffered an injury (s 4 of the 1987 Act) or identifiable pathological change in her thoracic spine as a result of any employment (s 4b(ii) of the 1987 Act). I am further not convinced that her symptoms in the thoracic spine became worse as a result of employment activities for the following reasons.
Firstly, despite being treated by a number of specialists between 2020 and 2022, the applicant was silent on any symptoms in the thoracic spine. There are multiple complaints in relation to the neck, right shoulder and wrists but no complaint of injury or symptoms in the thoracic area. While pain may be indicative of physiological change, it is not itself a “personal injury”. Without intending to be exhaustive, this is because pain can radiate from another part of the body which has received a personal injury, can be referred pain or can be somatic pain.
Authorities indicate care should be taken when considering such evidence, not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga;[34] and applied in Mastronardi v State of New South Wales.[35] I have exercised caution in this regard in relation to the treating medical records and reports in evidence and considered all the evidence. I find it improbable that the specialists, and specifically the pain specialists, would exclude the reporting of any thoracic symptoms, (assuming they had been disclosed) when they have thoroughly documented other complaints.
[34] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
[35] Mastronardi v State of New South Wales [2009] NSWCA 270.
I also acknowledge the absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence: Owen v Motor Accidents Authority of NSW[36] and Bugat v Fox.[37] While independent corroboration of complaints of pain will often be helpful and relevant in assessing the probative value of the evidence overall, such evidence is not a “requirement” that must be satisfied before I can feel actual persuasion about the existence of a fact in issue. However, overall, I find that there is a paucity/dearth of evidence in this regard.
[36] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [52].
[37] Bugat v Fox [2014] NSWSC 888 at [31], [32] and [34].
Secondly, and flowing from the above, is that the applicant’s statement does not record any injury to the thoracic area whether simpliciter or an aggravation. There is no specific reference but there is an inference of pain radiating into the area.
Thirdly and finally, the report of A/Prof Kleinman does not explain how he concluded that there was an injury or aggravation to the thoracic spine apart from a blanket statement that it was due to the nature and conditions of employment. His report does not take a history of symptoms in the thoracic spine and examination was limited to a finding of ‘rotation of her thoracic spine is limited, more to the right than the left’. He then assessed a 5% whole person impairment (WPI) but it is unclear how he came to that conclusion given his limited examination findings. Whilst I am very careful not to trespass into the domain of a Medical Assessor, to be assessed as having a 5% WPI in the thoracic spine, there would need to be demonstrated findings which may include, significant muscle guarding or spasm, asymmetric loss of range of motion, non verifiable radicular complaints, herniated disc or fracture of less than 25% compression of one vertebral body.[38] None of these findings were recorded at examination. I am not attempting to assess impairment, rather am emphasising that the ultimate assessment does not accord with the scant clinical finding.
[38] Table 15-4 Criteria for rating impairment due to thoracic spine injury – AMA V page 389.
A/Prof Kleinman observes a disc protrusion (which I note is not recorded in the official radiological reports) and determined it was the result of the nature and conditions of employment but does not provide any reasoning for this opinion particularly given the absence of contemporaneous complaints made by the applicant. He acknowledges the hemangioma but does not link it to any workplace activity. His report does not provide any reasoning to support the proposition that the applicant suffered a disease process of gradual onset in the thoracic spine contracted in the course of employment and to which the employment was a contributing or main factor; or any reasoning to support the proposition that she suffered an aggravation, acceleration, exacerbation or deterioration of a disease process to the thoracic spine where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration during the period claimed. The relationship of any disc protrusion to workplace injury or nature and conditions is at best speculative and I find the opinion to be at best “ipse dixit”. It is well established in the authorities such as Paric v John Holland (Constructions) Pty Ltd[39] (Paric); Makita (Australia) Pty Ltd v Sprowles[40] (Makita); South Western Sydney Area Health Service v Edmonds[41] (Edmonds); and Hancock v East Coast Timbers Products Pty Ltd[42] (Hancock); that there must be a “fair climate” upon which a doctor can base an opinion. Whilst it is accepted that a doctor does not need to provide elaborate or detailed explanations for his conclusion, more than a mere “ipse dixit” (an assertion without proof) is required and the latter seems to be precisely what A/Prof Kleinman has done in this matter in relation to the thoracic spine.
[39] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505, 509-510.
[40] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.
[41] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421.
[42] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
In reaching these conclusions I have weighed the evidence of the applicant together with other objective evidence and/or the absence of it: Department of Education and Training v Ireland.[43] Having done so, and for the reasons stated above, I acknowledge that there were sporadic complaints of pain extending into the thoracic spine and indeed the hemangioma which was extensively investigated in 2022, but these at no stage were related to employment activity but rather appear to be observations by the general practitioners amongst other complaints and commenced only two years after the deemed date of injury.
[43] Department of Education and Training v Ireland [2008] NSWCCPD 134.
Further, submissions inferred in a roundabout way, that the alleged injury to the thoracic spine was overlooked or underestimated by the applicant and all of the doctors who have examined her other than A/Prof Kleinman because their focus was on the undoubtedly more significant injuries to the shoulder and neck or their areas of speciality. An equally plausible explanation for the lack of attention to the thoracic spine, however, is that there was in fact no injury to that region and that any symptoms that may have radiated to the thoracic spine were in fact the result of the cervical spine, shoulder and trapezius trauma. This is particularly so given that the applicant never gave any history of having suffered pain at the thoracic spine at the time of the injury or shortly thereafter and her statement is silent on symptoms.
I accept the applicant has experienced tenseness or tenderness in her thoracic region. That however, of itself, as discussed above, is not enough to support a finding that there was a separate and discrete injury to the thoracic spine within the definition of the 1987 Act.
Accordingly, there will be an award for the respondent in respect of the allegation of “injury” to the thoracic spine.
The claim for s 66 compensation in respect of permanent impairment for the accepted injuries of the cervical spine, right shoulder and left wrist, will now be referred to a Medical Assessor, there being no “liability issue” in relation to those injuries.

Treatment

Section 60 of the 1987 Act states that if, as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the workers employer is liable to pay for the cost of that treatment or service.
The authorities on the interpretation of this section are overwhelming although I have identified three key principles relating to the assessment of such claims summarised as follows (but again these are not exhaustive);
(a)    firstly, the applicant must establish on the balance of probabilities the treatment claimed, more probably than not is ‘reasonably necessary’ (Nguyen);[44]
[44] Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246 and Yucel v AAES Pty Ltd t/as Roadtrack [2015] NSWWCCPD 51.
(b)    secondly, whether treatment is ‘reasonably necessary’[45] (Rose) is a question of fact depending upon the circumstances and evidence in each case and will often require the weighing up of competing considerations such as:
(i)is it better that the worker have the treatment or not?” (in the sense that there are reasonable prospects that the worker’s situation will be improved or ameliorated by the treatment (Diab);[46]
(ii)the appropriateness of the particular treatment, its actual or potential effectiveness, the availability of alternative treatments and their potential effectiveness, the costs of the treatment (in particular relative to the cost of alternative treatments) and the acceptance by medical experts of the treatment as being appropriate and likely to be effective;
(c)    thirdly, the need for treatment must be ‘the result of an injury’. The authorities establish assessment requires:
(i)a common sense evaluation of the causal chain the treatment is reasonably necessary ‘as a result of the injury’ (Kooragang);[47]
(ii)the expression “results of”, is a question of fact, and it is unnecessary to establish the work injury was the only, or even a substantial, contributing factor to the need for medical treatment and it is sufficient to establish only that the injury “materially contributed” to that need (Murphy), [48] and
(iii)the worker establish “the injury was a material cause of the need for the proposed treatment . . . , even if other factors were also present that may have contributed to that need (the fundamental principle that employers must take their workers as they find them” and that “a condition can have multiple causes”, these concepts making clear that the presence of a pre-existing condition, but for which treatment might otherwise not have been necessary, will not preclude a finding that the need for treatment results from the injury in question.) (Schokman).[49]
[45] Rose v Health Commission (NSW) [1986] 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233 39.
[46] Roche DP in Diab v NRMA Ltd [2014] NSWWCCPD 72.
[47] see Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452.
[48] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
[49] per Roche DP in Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [54] (Schokman).
Whilst liability has been accepted for the right shoulder injury, the insurer denied liability for PRP injections on the basis that there was no radiological evidence to show that the applicant continued to suffer from active subacromial bursitis.
Dr Bosanquet recommended medication but did not specifically refer to PRP injections, but admittedly the question was not posed to him. A/Prof Kleinman recommended ongoing pain intervention. The PRP injections have been recommended by A/Prof Russo, the pain management specialist who has identified in his clinical experience that this treatment is the most cost effective curative treatment available, when contrasted to corticosteroid injections and furthermore reported that there has been measurable benefit in the past from such treatment.
I find that the reasons for disputing this treatment are not cogent. Radiological evidence is not the only diagnostic tool for the assessment of treatment. A/Prof Russo, the long term pain management specialist has on the basis of his history, examination and clinical expertise determined there to be an active subacromial bursitis. This assessment cannot be discounted merely because there is no current radiological evidence. I find such a proposition to be illogical, as it is open for a medical expert to make such a finding on the basis of the history and his clinical examination at the time. It is a trite statement, but necessary, that a practitioner does not treat pathology or radiological findings but rather symptoms. Radiological findings may confirm a diagnosis, but a diagnosis can be made in their absence.
Overall, given the history of this matter, I find that the proposed PRP injections are likely to be symptomatically and cost effective as past history has revealed this to be the case.
I therefore find the injury did materially contribute to the need for the provision of PRP injections and further it is the material cause for the treatment and so am satisfied that the need for treatment is the result of the injury. I further find that in the absence of any alternative treatment or evidence by the respondent to dispute the treatment on medical grounds, that it meets the definition of ‘reasonably necessary’ summarised above.

For the reasons above, I find the applicant has established on the balance of probabilities, (Nguyen) that the injury materially contributed to the need for the treatment with reference to the common sense test of causation (Kooragang) and such PRP injections are reasonably necessary (Rose) and (Diab) as a result of the injury.

SUMMARY

Accordingly I make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 473

27 August 2024