Kinslow v Hippo Espresso (in liquidation)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kinslow v Hippo Espresso (in liquidation) [2023] NSWPIC 432
APPLICANT:	Matthew Kinslow
RESPONDENT:	Hippo Express (In liquidation)
MEMBER:	Jane Peacock
DATE OF DECISION:	30 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Lumbar spine injury (undisputed) and allegation of thoracic spine injury (disputed) and consequential conditions in thoracic spine and cervical spine (disputed); evidence weighed in the balance and on the evidence; awards for the respondent on allegation of thoracic spine injury and consequential condition in cervical spine; Held – award for the applicant on allegation of consequential condition in thoracic spine; lump sum claim and accordingly matter remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor (MA) pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows: (a) Date of Injury: 23 September 2012; (b) Body systems/parts: lumbar spine and thoracic spine (consequential), and (c) Method of assessment: whole person impairment. 2. The documents to be forwarded to the MA are as follows: (a) The Application to Resolve a Dispute and all documents attached. (b) Application to Admit Late Documents filed by the applicant being Discharge Summary dated 9 April 2016 tendered at the arbitration and to be filed within three days as a late document. (c) The Reply and all documents attached.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), as amended, the applicant, Mr Matthew Kinslow (Mr Kinslow) seeks lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injury to his lumbar spine on 23 September 2012. He also seeks lump sum compensation as a result of injury alleged to his thoracic spine on and as a result of alleged consequential condition in his thoracic spine and cervical spine as a result of injury to his lumbar spine on 23 September 2012.
The respondent is Hippo express (In liquidation) ((Hippo). Hippo was insured at the relevant time for the purposes of workers compensation by (the insurer).
Hippo denied liability for the claim resulting from the alleged consequential condition in the cervical spine. Liability for injury to the lumbar spine on 23 September 2021 is accepted.

ISSUES FOR DETERMINATION

Firstly, in respect of the pleadings, the applicant has filed an amended application. The amended application is consented to and the respondent also consents to a further amendment to the amended application to add the words “and thoracic spine” after the words “lumbar spine” in the first sentence of the description of injury.
As per the amendments to the application, Mr Kinslow brings a claim for lump sum compensation as a result of injury to his lumbar spine on 23 September 2012, injury to his thoracic spine on 23 September 2012 and consequential conditions in the thoracic spine and cervical spine as a result of injury on 23 September 2012.
Injury to the lumbar spine is not disputed.
Injury to the thoracic spine is disputed.
Consequential conditions alleged in the thoracic and cervical spine are disputed.
The dispute before me therefore is whether Mr Kinslow suffered an injury on 23 September 2021 to his thoracic spine and whether he suffered consequential conditions in the thoracic spine and cervical spine as a result of the injury to the lumbar spine on 23 September 2012.
Hippo seeks an award for the respondent in respect of the allegation of injury to the thoracic spine and consequential conditions alleged in the thoracic spine and cervical spine.
In the event there is an award for the respondent in respect of the thoracic spine and cervical spine, it is agreed that the matter will be remitted for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, of the lumbar spine, as a result of injury on 23 September 2012.
In the event there is a finding in favour of Mr Kinslow in respect of the thoracic spine and cervical spine, it is agreed that the remittal for referral to a MA will include the thoracic spine and/or cervical spine.
The documents to be forwarded to the MA are agreed to be the documents admitted into evidence in these proceedings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

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

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission by consent and considered in making this determination:
For Mr Kinslow:
(a)    the Application and all attached documents;
(b)    amended application as further amended, and
(c)    Discharge Summary of 9 April 2016 tendered at the hearing by email and to be filed within three days as a late document (already served).
For Hippo
(a)    Reply and all attached documents admitted by consent bar part of the report of Dr Rimmer to which the applicant took objection and the report was admitted as a whole subject to submissions on weight. As this objection was recorded and dealt with orally, the matter is not further reasoned here.

Oral evidence

Mr Kinslow did not seek leave to adduce oral evidence and counsel for did not seek to cross-examine Mr Kinslow.

FINDINGS AND REASONS

It is not disputed that Mr Kinslow suffered an injury at work to his lumber spine on 23 September 2012 when carrying a heavy rack of plates.
Mr Kinslow alleges that he also injured his thoracic spine on 23 September 2012 and that he suffers from consequential conditions in the thoracic spine and cervical spine as a result of the undisputed lumbar spine injury on 23 September 2012.
Hippo disputes that Mr Kinslow injured his thoracic spine on 23 September 2012 and disputes that he suffered from consequential conditions in the thoracic spine and cervical spine as a result of the undisputed lumbar spine injury.
The consequential conditions are alleged to result from an alteration in posture as a result of the undisputed lumbar spine injury.
The law dealing with consequential conditions is clear. It is not necessary for Mr Kinslow to establish that the consequential condition in his cervical spine is an “injury” (including “injury” based on the disease provisions) within the meaning of s 4 of the 1987 Act. This means that s 9A also does not apply here. That is, Mr Kinslow does not have to establish that his employment was a substantial contributing factor to the consequential condition alleged. The disease provisions do not apply such that Mr Kinslow does not have to establish that his employment was the main contributing factor to the aggravation of any pre-existing disease in his cervical spine. It is well settled that, as it is a consequential condition in his cervical spine that is being alleged, all Mr Kinslow has to establish is that the symptoms and restrictions in his cervical spine hips have resulted from his lumbar spine injury.
Deputy President Snell in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan) provided a useful summary of the case law dealing with consequential conditions as follows:
“100. There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of these decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) and Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 (Kumar). It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act.
101. In Moon (involving a compensable injury to the right shoulder, allegedly resulting in a consequential condition of the left shoulder) Roche DP at [44]–[46] described what is required:
‘44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
45. It is therefore not necessary for Mr Moon to establish that he suffered an injury” to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an “injury” to his left shoulder in the course of his employment with Conmah they asked the wrong question.
46. The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss “resulted from” the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).’
102. In Kumar, one of the qualified medical witnesses approached the issue of whether there was a consequential condition of the right shoulder, by asking whether the worker had suffered a ‘work related injury’ to that shoulder and whether employment was a substantial contributing factor to the condition of that shoulder. Roche DP at [57] said of the evidence of that medical witness:
‘Even assuming, as the respondent has urged, that Dr Wallace rejected the totality of the claim for “consequential loss” in respect of the right shoulder, his failure to address the correct issue, and his focus on whether Mr Kumar suffered a work related injury to his right shoulder, means that his report is fundamentally flawed. For these reasons, the Arbitrator should have rejected Dr Wallace’s conclusion.’”
Deputy President Snell went onto apply the above to the case before him:
“103. Did Dr Wilcox’s report suffer from such a fundamental flaw? If so, the Senior Arbitrator was justified in rejecting the report (consistent with the approach in Kumar).
104.   The respondent submitted that the opinion of Dr Wilcox going to the consequential conditions was ‘tainted’ by his views on the presence and causation of muscle tension dysphonia.
105.   The proceedings were conducted on the basis that the respondent suffered from the condition of muscle tension dysphonia, this being a compensable injury deemed to have occurred on 4 April 2011. What was in issue was whether there were consequential conditions involving the neck and shoulders, which resulted from the conceded injury of muscle tension dysphonia.
106.   For reasons discussed above, I have (at [81]) formed the view that, on a fair reading of his report, Dr Wilcox did not accept the appropriateness of the diagnosis of muscle tension dysphonia or the fact that it resulted from employment. There are passages where the doctor pursues an argument to this effect.
107. There are passages of the report (see that quoted at [97] above for example) where Dr Wilcox excluded muscle tension dysphonia from his expressed views on causation. However, consistent with the discussion above going to the First Argument put in support of Ground 1, there are other passages where the doctor argues to the contrary.
108.   The passages of Dr Wilcox’s opinion quoted at [97] and [98] above are consistent with his report involving the same flaw as that which affected the opinion of the medicolegal expert in Kumar. The issue before the Senior Arbitrator was not whether the respondent suffered injury to the neck and shoulders caused by overusing her voice in February/March 2011, under the ‘disease’ provisions or otherwise. It was not necessary, for the respondent to succeed on the consequential conditions, that she establish ‘injury’ to these parts within the meaning of s 4 of the 1987 Act.
109.   The weight to be afforded to the opinion of Dr Wilcox was dependant, amongst other things, on its relevance to the issue between the parties. That issue was whether, accepting the conceded compensable injury of muscle tension dysphonia, the alleged consequential conditions resulted from that injury.
110.   The views of Dr Wilcox were ‘fundamentally flawed’, to appropriate the language in Kumar. It follows that the Senior Arbitrator was correct to reject the opinion of Dr Wilcox.”
That is, it is well settled that it is not necessary for Mr Kinslow to succeed in respect of the consequential conditions in his thoracic spine and cervical spine that he alleges here, to establish “injury” to his thoracic spine and cervical spine within the meaning of s 4 of the 1987 Act but that the symptoms and restrictions in his thoracic spine and cervical spine have resulted from his lumbar spine injury.
Accordingly, the question for determination is whether Mr Kinslow suffered a consequential condition in his thoracic spine and cervical spine as a result of the injury to his lumbar spine on 23 September 2012.
It must also be determined whether Mr Kinslow injured his thoracic spine on 23 September 2012.
The determination must be made on the evidence and in accordance with the law. The determination must be made on the balance of probabilities.
Counsel for Mr Kinslow submitted:
“The applicant’s evidence is within the statements. The controversial part, the forensics exercise today in my respectful submission is for the Member to examine firstly the lay evidence. The lay evidence in relation to the onset of the alleged consequential injuries and I’m going to focus on those at the moment, appears on page 17 of the statement. Page 17 of the application, statement of 18/11/20. Paragraph 56, 57 relates to the onset of the consequential conditions of thoracic and neck injury. They speak for themselves and the date that he started using a walking stick has been inserted in paragraph 58, 25/9/16. The evidence of Mr Kinslow is corroborated by someone who you might regard as a person who has known him for a fair while, it’s his mother, Denise, and she starts her evidence at page 23 and onwards. Obviously you can read this for yourself but 16 says:
‘I notice that after his injury his posture changed. He became bent forward and relied on aids such as walking stick, coming back from Darwin etcetera.’
And page 25 as part of paragraph 16, in general terms:
‘I’m aware Matthew has a major problem with his lower back and a problem with his upper back or neck. This has come on over time although I cannot say exactly how quickly.’
So she doesn’t gild the lily but that’s consistent with the way we allege the consequential injuries occurred. And paragraph 18 she slots it in terms of time:
‘The mid back and upper back pain seemed to come on around the same time he changed his posture.’
And that seems to be in the period between 2015 and 2016. There is evidence from his now-wife Jessica, pages 26 and onwards, which you can read that for yourself but relevantly 13:
‘I cannot tell exactly whether and when his mid back and neck pain started but certainly everyone seemed to be concentrated on his low back issue and we all agree he has a very severe and an operated disc injury down there.’
14, from her experience as his partner and how is wife:
‘I could tell he was in pain by looking at him by the way he held himself. He became hunched over.’
Then you can read the rest for yourself it’s regurgitated but the last paragraph, 31:
‘Over the years I’ve watched as he became more unstable and I’m aware that because he tells me that he suffers significant in his lower back, mid back and neck.’
Christine Willmott is the mother of the person that got him the job and she was around in a period of time which is the critical period of 2015 onwards. Paragraph 8, page 31:
‘At the time I had opportunity to observe more closely and noted there had been a significant pain in the region of his lower back and also his upper back and neck, hot water bottle, etcetera.’
Paragraph 11:
‘From the time he came to live with us, which is now 2015 onwards, I would describe him as standing in a very guarded way, he didn’t stand straight, leaning to one side or leaning forward, guarding himself.’
Now she doesn’t try and over-egg the pudding she just gives you the lay evidence. Although there hasn’t been an application to cross-examine what I’ve asked you to do is do they fit within the clinical notes that are available? Now, the lay document from the Westmead Hospital provides you with in one sense the earliest record of a thoracic spinal problem, and that reads for itself and the examination is on the third page and there it is again:
‘Mobilises with a limp, back tender on palpation in the midline from the lower thoracic to the sacrum.’
Now inferentially, that didn’t happen that day. Inferentially, it’s something that’s within the history of his lower back pain so it’s open and it should be inferred that thoracic spinal pain, at least for some time prior to that, it fits hand in glove with the clinical notes in page 86, that is he’s gone back to the GP two days later, describing how he’d been referred to Bankstown’s list for surgery, which is part of that discharge referral, but he gave I think the statement saying, well, they wouldn’t take him in Bankstown because he’s out of the area so he’s come back to his GP, who sends him off to start the MRI process and the MRIs that were done included the cervical spine. Because you’ll see in the next one, 9th of May he’s come back from the MRIs that were done and that then links the neck to the same period of time, that is he’s been sent off for an MRI for his cervical spine as well. And I’m going to try and find that. It was ARD 53 to 54. And relevantly, page 53, MRI report, sort of bottom of that page. MRI spine report:
‘The history of back injury numbness, weakness left leg neck pain with pins and needles in forearms.’
So he’s telling them I’ve got neck pain and then they do a CT and an MRI, the results of which are capable of being read. There is a, according to this, a central disc protrusion at CC7. It’s described as minimal disc degeneration and there’s also the lumbar spinal thing.
Now that fits within the way we say the facts occur, that is the longer it took to get his spine operation on the more stooped he got and the more consequential effects took place. The next reference to thoracic impairment or if you like consequential injury is the reports of Dr Patrick, who saw him, relevantly saw him, on the 2nd of December 2016. So I would like you to infer and based on this evidence that he continued to have these problems during that year, and by the time he saw Dr Patrick at 192 of the ARD he gave as present symptoms, page 193:
‘Overall he believes his back pain has improved somewhat after having his lumbar spinal surgery. He still does continue to have a pain at his lower thoracic lumbar spinal region with intermittent muscular spasm at the lumbar spine as well as mid lower thoracic.’
That’s another mark in the chronology which favours the worker.
The next relevant statement though of course that Mr Kinslow was asked to address factually on page 198, one, about how the neck is ..(not transcribable 0.20.05).. in paragraph 3, ‘Pain was progressing up my spine from lower back to mid back’, and paragraph 2, ‘I can’t say exactly when. I started getting pain in my neck. Lower back was worse, as you can imagine.’ He then gives evidence at paragraph 198, ‘I used to have good posture, now I find that I slump forward. In fact it hurts to stand straight.’ That’s been addressed by Dr Patrick, when he was given that, and he forms the view that it’s possible or probable that he injured his lower thoracic spine as well as his lumbar spine and that it was masked by the severity of his lumbar spine, or it’s a consequence, because he’s saying it was a consequence. It was a later development.
Now, he then assesses it. Now, the respondent’s case, if I could address Dr Rimmer, has some deficiencies, because Dr Rimmer apparently says, ‘Well, he never told me so it couldn’t have happened.’ That seems to be the logic. He says, this is the first thing. He lists very carefully what he’s been provided. He was provided with the report of Dr Partick of the 6th of January, ’17, and 30th of January, ’18, the one I’ve just went through, which says, ‘He has ..(not transcribable 0.21.35).. thoracic injury. We gave him a thoracic spinal ..(not transcribable 0.21.38)..’” On page 20 of the reply, page 4, for some reason he’s examining the thoracic spine, and he would be because he was told by Dr Patrick, and he’d read it, that he’s got a complaint about his thoracic spine. But then he says, ‘I'll need to see Dr Firch’s report,’ the operation report, page 22. So he waits for that. And then there’s a WPI assessment of his lumbar spine. And there was toing and froing about the deduction. And then this is the thrust of Dr Rimmer rejecting the, either the injury or the consequences, injuries to his thoracic and cervical spine by saying, this is on page 28:
‘I do not agree with Dr Patrick’s opinion. At no stage had Mr Kinslow stated to me during the assessment that he had also either injured his thoracic spine on 23/9/12 or suffered a consequential injury to the thoracic spine resulting in a lower back injury.’
In fact, he had before him a report that put it all chapter and verse, so what does that mean? I mean, it’s a case where, well, because Mr Kinslow didn’t go through that in chapter and verse, then somehow this allegation hasn’t been made. It was made as part of the application for which he was taking the insurer’s defence. So that is not logical and shouldn’t be accepted that that would be a reason for rejecting it, because it was there in front of him.
The other problem with Dr Rimmer is unlike Dr Patrick, who provides, in my view, a reasonable and justifiable opinion on the facts about the mechanism, the injury and the way he’s had his posture and developed these things, he - sorry. There are other parts of the report this word, abnormal illness behaviour. I understand that you’ve rejected my application. Page 34 he goes on to say - he’s addressing the thoracic and the cervical spine, paragraph 2:
‘I do not. Mr Kinslow on two occasions clearly demonstrates abnormal illness behaviour. I do not believe he’s suffered a consequential thoracic spine injury. Clearly demonstrates abnormal illness behaviour.’
And paragraph 3:
‘He did not sustain injury to his cervical spine or consequential injury to cervical spine. This is confirmed on two assessments ..(not transcribable 0.24.30).. Kinslow in conjunction with extensive clinical information.’
If you were going to address the weight of that report, you have to find where and how on the facts and the documents he has, he’d be justified saying he has abnormal illness behaviour if that’s the reason he’s rejecting it, because there isn’t anything like that there. There’s no factual evidence. There’s no evidence. There’s no, ‘I saw him walking in. He was walking along with his walking stick over his back skipping along the road,’ nothing that would have justified him attacking his credit or forming a view that he's got some weird mental issue that would create an allegation that he has thoracic spinal pain or cervical spinal pain, and even if you accepted that he formed that opinion, he doesn’t disclose it in the reports.
Secondly, he has with him, and does - well, he talks about the radiology. Allow me a moment. I’ve already taken you to what is on the, at least on the cervical spine. There is some pathology at C6-7. There is also pathology at T5-6. And so if, for example, you were dealing with, and I know it’s not your job to deal with it, if you’re dealing with the possibility that there was some pathology in those areas you’d look at those and they plainly say there’s something wrong at C6-7 and T5-6. And so to say it’s abnormal illness behaviour, you’d have to say, ‘Well, how do you reject what is a radiology opinion about something going on with his cervical and thoracic spines?’ You’d say, ‘Well, I don’t say accept it.’ You’d say Dr Rimmer is partisan and seeking a way through as an advocate, not as an expert who says, ‘I’m going to be honest as the day’s long,’ because he knows the cost of allowing these to go through.
So his logic is wrong. His opinion based on the logic must be wrong in rejecting it, and he doesn’t justify finding abnormal illness behaviour at all. And so if you take those parts of the report out, you would find on the balance of probabilities that Dr Patrick’s got it right. There’s criticism also by Dr Rimmer, he seems - the other thing is that, ‘Well, you went to see Dr Firch,’ and Dr Firch’s report, as I'll find, pardon me, Dr Firch who did the - he went back to see Dr Firch in 2022 because he wanted to be reviewed because he didn’t know whether he needed further surgery. You have to take into account why he was seeing Dr Firch.
Page 76, he’s a treating doctor, so Mr McKessar has written to get a report. What happened? ‘Well, he was referred to me by Dr ..(not transcribable 0.27.55).. Sasos, or someone. I saw him in consultation on 16 August 2022.’ The reason why he went to him is to find out what he needed, to be done. Did he know he wasn’t getting any better? Was he supposed to have any surgery? He actually went to Dr Firch to find out if he needed surgery, and the Dr says, ‘Look, I don’t think so.’ So that was the focus of it. The focus of seeing Dr Firch was about whether to have surgery, not necessarily about investigating the consequential injuries and so on and so forth. So if you think Dr Rimmer was justified in dumping Mr Kinslow’s arguments, he’s jumping off the wrong place to say, well, he says on page 41 of the reply, page 5 at the time, ‘Again I would like to emphasise Dr Firch’s correspondence makes no mention of any injury to cervical or thoracic spine.’
Well, we never claim an injury to the cervical spine. We said it was consequential. We have Dr Patrick who says, ‘Well, it could have hurt his thoracic spine at the time because we don’t know really which level it was at, and his lower back was worse.’ So Dr Rimmer, in my submission, suffers from a lack of logic to justify it. There is no assumption or fact in any of the reports to justify saying that he’s had abnormal illness behaviour so reject any type of consequential injury or frank injury to either those parts of the body, and misleads himself about what Dr Firch was really looking at when he saw him in the treatment phase.
So on those submissions, when one looks at the - the way that the thoracic and cervical spine developed, the actual fact that he had stooped posture, the thoracic spine at least was mentioned when he was in in 2016, early ’16, and he was stooped and there’s lay evidence to support it, in my submission, you would at least find consequential development of thoracic spinal injury and cervical spinal injury and it’s open to find that, in fact, according to Dr Patrick, given his posture when he was doing the task, how tall he was, the confined space and his lay, you know, he’s just pointing to his back that it’s, you know, probable he actually hurt his thoracic spine at the time. But the severity of his disc herniation was the focus of (1) his pain and (2) of the treatment. Those are my submissions.”

Counsel for the respondent submitted:
“Now, just assuming that there’s been a consistency of complaints since 2015 and 2016, let’s say, for example, that Denise Kinslow is accurate in saying that, no, she noticed that there was a posture change when she returned from Darwin, didn’t she? So what about Christine Willmott? I think she says ‘some stage in 2015, although I cannot say which month’. So that would appear to be the time that my friend relies on the change of posture and the opening fact, I think he nominated a somewhat later date, being September 2016 when the walking stick was adopted. So even then, even if it was November 2015, that’s still three years after the injury that the applicant says he suffered and, well, we’ve accepted that.
I might say that he’s somewhat lucky that we have because at that stage, in November of 2012, the earliest medical evidence we have is from Dr Kooroo at page 59, who came up with a diagnosis simply of non-specific back pain in 2015, sorry, 2012. So November 2012, that’s the closest we get to 23rd of September 2012. There’s a diagnosis of only non-specific back pain. There’s no diagnosis of an actual disc injury until the CT scan organised in 2015. And the important thing about that CT scan is that it demonstrates a specific, very specific pathology at the L5-S1 level. Now, that’s at page 51 of the ARD. And the pathology that’s identified is at the L5-S1 level, disc based narrowing seen posteriorly, L5 nerve roots exit without compromise, evidence of probable compromise at the exiting S1 nerve root. So we’re looking there at the lower part of the lower back of the lumbar spine.
Between 2012 and that stage, the applicant has, on his own evidence, obtained employment at, let me just see here, so on page 16 of the ARD, he worked at the Mark Hotel between the 17th of September 2013 and the 4th of November 2013. I don’t know what sort of work he was doing there but he was employed, at least. He says at that stage he was not under any medical restrictions. His shortest week was a 12-hour week and his longest was 38. He lost that job but then went on to get another job at Dan Murphy’s, presumably that involved some heavy lifting, between the 24th of August 2014 and the 9th of February 2015. On the 10th of February, he ceased working at Dan Murphy’s having then been declared completely unfit.
So, anyway, it’s not an issue now, but one would have thought that the argument was that he’s injured himself there, but anyway. There’s no evidence between September of 2012 and February 2015 - - -
MEMBER: Sorry, Mr Barter, there’s no dispute about the lumbar spine.
MR BARTER: No, there’s not. No, there’s not.
MEMBER: And there’s no suggestion that the lumbar spine was injured in the subsequent employment - - -
MR BARTER: No, no, there’s not.
MEMBER: Okay. So - - -
MR BARTER: No. No, those are just passing comments, which have popped in to my head as I've been reading the brief, but - - -
MEMBER: Okay. I don’t know that they exist - - -
MR BARTER: But I'm, no, I'm not pressing on that. What I am leading on to is this, that between 2012 and 2015 when there’s first complaints of problems in the neck or the thoracic spine, the applicant was able to carry out work at Dan Murphy’s and at the Mark Hotel and if I can take you to page 63 of the ARD, which is a discharge summary from John Hunter Hospital, was able in October of 2013 to take part in a basketball game, injuring his right elbow. No complaints there to the hospital of back or neck or neck pains. And no suggestion then that he’s suffering from any stooping, any change in posture, far less adopting a walking stick and no evidence of, well, really, any injury.
But since you’re concentrating only on the cervical spine and the thoracic spine, in particular, no evidence of any complaints of pain between 2012 and 2015, with evidence that in the interim, he’s been able to carry out work at the Mark Hotel, Dan Murphy’s and participate in playing basketball. So, as you know, there is a reasonably low bar when it comes to establishing a consequential condition. You don’t need to establish the pathology, as much, but you still need to meet the normal requirements of causation as set out in Kooragang v Bates and I don’t think I need to give you the reference to that. I think we refer to Kooragang v Bates in virtually every case.
It’s still necessary to apply the normal causation principles. And one would look at, well, what’s an explanation for complaints neck pain and/or thoracics pain in 2015 that makes you believe, as matter on all the evidence, that makes you believe as a matter of common sense that those complaints of pain, three years later, with intervening work result from an injury that occurred back in 2012? Well, to do that, you need a medical explanation. There has to be some form of explanation as to why those pains came on so long after the injury which liability has been accepted. And the only evidence on that point is speculation by Dr Patrick, rather than an expert examination of what actually did occur. His explanation, this falls far short of that required of an expert evidence in that all he says is:
‘My impression overall is that taller individuals with such causation as spinal injuries are somewhat more susceptible to developing symptoms arising at mid-lower thoracic spine.’
There’s no explanation at all from anybody as to why there’s a causal connection between the injury of 2012 to the low part of the lumbar spine and the cervical spine. The high point is that there’s a connection, a causal link between the injury of 2012 and thoracic problems.
Now, I don’t know whether my friend is suggesting that the annular bulging at T7-8 and the T5-6 disc protrusion detected in the thoracic spine on the 24th of July 2019 at page 56 result from the 2012 injury. If that was the case, then one would have thought that Dr Patrick might have gone further than simply say that the pathology in the thoracic spine results from muscle guarding, which seems to be as high as he puts it.
So there being no evidence that the pathology at the thoracic spine demonstrated in the MRI results from the injury. One would think that if it did there would have been some evidence of that. The only suggestion is that there are complaints of pain in the thoracic spine that may result - and again this is only a possibility because it's not put any higher than the use of the terms ‘my impression overall is that taller individuals with such causations are somewhat more susceptible to delivering symptoms’.
What you would be looking for to draw the necessary causal connection would be in this case Matthew Kinslow, being a taller individual with low lumbar spinal injury, has as a result of an altered - well, he doesn’t even use ‘stooping’ or ‘altered gait’. He suggests muscle guarding, which is neither of the limbs that my friend appears to rely on and for which, again, there is no medical evidence at all to suggest that either altered gait or stooping have played any part in injury, well, pathology or even symptoms in either the neck or the thoracic spine. That’s based only on the impressions of the lay witnesses, who may very well know the applicant well but certainly not in a position to give expert evidence that stooping or even altered gait could cause injury to the cervical spine or the thoracic spine.
So then again, let’s just assume that there is - well, you can’t really assume that there is any evidence because there isn’t any. But imagine if my friend’s submissions were supported by some evidence, well, then there’s no evidence to suggest that between 2012 and 2015, or more precisely the first MRI of the cervical spine in April of 2016, that the applicant was persistently holding himself in a stooped position. The best we can do is some, well, he doesn’t - what does he say? The lay witnesses say that he was starting to stoop but that was, they were unable to give a time or date other than some time around 2015/2016. And the applicant himself can’t put it any higher than saying, ‘Well, I used to have good posture and now I find that I slump forwards.’ Well, that’s 2020. ‘It hurts my back, both my lower back and mid back, for me to stand straight. Muscular spasms in the lower and mid back.’ That’s at page 18 but that’s not till 2020. So he says he had pain in his lower back and mid back when he went to Westmead Hospital. That’s in - but that’s, again, that’s not till 2016. And then you’ve got the discharge referral that’s come in late, in the late documents with an admission on the 9th of April 2016, so three years of back pain. There’s no reference there to thoracic or cervical problems. It only refers to the CT scan twelve months ago, which is the one I’ve referred you to, which showed the bulging discs and an entrapped nerve at the lower part of the lumbar spine, which is L5-S1.
So absent, really, any evidence at all of a causal connection between 2012 and 2015, absent any expert evidence of a causal connection after 2015, in my submission the applicant can’t be said to have met the onus of proof that’s on him to demonstrate that either his cervical spine not his thoracic spine result from the injury that occurred several years beforehand. So those are my submissions.”
Counsel for the applicant submitted in reply:
“I only have a couple of things to say in reply. It is appropriate and consistent with the case and consequential that it developed over a period of time. I repeat my submission that the severe - despite my opponent’s white-anting the lower back being related at all in his earlier part of his submissions, it has been accepted that he’s had a microdiscectomy ..(not transcribable 0.49.13).. substantial insult. The submission I’m making is that was the primary cause for concern. But more importantly, logically, consequential injuries take time. A consequential injury from an altered posture, for example, that is the crux of the case isn’t something that happens immediately anyway, so it shouldn’t concern you there’d be an absence of the consequential, evidence of the consequential injury for some years because it takes some years for consequential injuries to develop, and that’s not unusual.
And the onus of proof, in terms of it being discharging the burden of persuasion, the balance of probabilities is the test, the common law test of causation, and of course Ozcan [2021] NSWCA 56 repeats the fact that the onus of proof is on the balance of probabilities, that it is more likely than not. Now, that can be proved by inference. It can be proved by possibility. ..(not transcribable 0.50.20).. the cases that involve possibility, of course, was Tubemakers v Fernandez. Basically there was one expert said it was a possibility that a Dupuytren’s contracture, or whatever it was called, was caused by a traumatic injury to the fellow’s hand when most of the medical evidence was, well, it’s actually a genetic disposition that came from the Vikings. But the High Court said, well, even if you say it’s a possibility, it’s open to be accepted absent evidence to the contrary. And all my opponent can point to is an absence of evidence in the early part of this, rather than addressing the positivity and the likelihood of, you know, bending over as a result of his being in a stooped posture - which there’s, I’ve taken you to the places where that was recorded - would cause consequential injury to other parts of his spine. It makes sense and it’s logical.
And so we say the evidentiary onus has been discharged and ask you to ..(not transcribable 0.51.27).. award in favour of the applicant. Those are my submissions.”
Turning now to an examination of the evidence in this case.
Mr Kinslow gave evidence in statements dated 2 November 2012, 18 February 2019, 18 November 2020 and 1 May 2023 and I have had careful regard to each of these statements.
In his statement dated 2 November 2012 Mr Kinslow describes the circumstances of injury to his lumbar spine on 23 September 2012 when he was lifting a heavy dishwasher try filled with dishes causing him to suffer injury to his lumbar spine. This injury is not disputed and the insurer paid for various treatment expenses including ultimately surgery performed in 2017 by Dr Firch.
In his statement dated 2 November 2012 (some six weeks after injury) Mr Kinslow gave evidence that he had to lift the dishwasher tray which was very heavy as it was filled with ceramic bowls. He estimated the weight to be 30kg. He had to lift the tray and turn around in confined area between the dishwasher and the bench. He gave evidence:
“As I lifted and twisted I felt a very sudden pain in my lower back. It was a very sharp pain”.
He reported the injury but was told to get back to work. He finished the shift in pain. The next day he attended his general practitioner (GP).
I note that the statement of Mr Kinslow given relatively contemporaneously with the injury identifies very clearly that he experienced a sudden sharp pain in his “low back”.
He attended the GP the next day.
There is not one scintilla of contemporaneous evidence, either from Mr Kinslow or from any doctors or other healthcare professionals that treated him, that supports that he also experienced symptoms in his upper back or thoracic spine at the time of injury.
The first reference in treating reports to pain being experienced in the thoracic spine is in the discharge summary of 9 April 2016 from Westmead Hospital, which is almost four years after injury.
In a statement dated 18 February 2019 Mr Kinslow gave evidence about his thoracic and neck pain as follows:
In his statement dated 18 November 2020, Mr Kinslow gave evidence:
“55. In relation to the pain that I suffered, it was initially very strong in the region of the lower back. Not long after that I had pins and needles in the left foot and calf. Later I had pins and needles in the left thigh and buttock as well.
56.    Soon after the accident, I cant say exactly when, I commenced to get pain in my neck. However my low back pain was by far the main issue and that’s what people concentrated on.
57.    I also felt that the pain was progressing up my spine from the lower back to the mid back. By the mid back I mean around the point that I would describe as around the lower part of my rib cage.
58.    My pain would become much worse on walking or standing for longer than 5 minutes. I stated to use a walking stick in about 25 September 2016.”
There are no treating doctors’ reports or clinical records that support any complaints of thoracic pain as a result of injury up until the discharge summary dated 9 April 2016. document.
Mr Kinslow’s mother Denise Kinslow, with whom he lived at the time of injury and continued to live with up until about 2015, gave evidence in a statement dated 29 July 2020.
She was aware he injured his low back at work.
She says she observed postural change in Mr Kinslow although she cannot say exactly when. She observed him to start using a walking stick although she cannot say exactly when. We know from Mr Kinslow’s evidence that he started using a walking stick on 25 September 2016.
She also remembers him lying on the couch using a heat pack on his neck and low back but she cannot say exactly when.
She gave evidence:
“The mid and upper back pain seemed to develop later and it seemed to come on around the same time he changed his posture because of his low back problem.”
Denise Kinslow’s evidence does not support a finding that Mr Kinslow suffered injury to his thoracic spine at the same time as he injured his lumbar spine at work on 23 September 2012.
Mr Kinslow’s wife Mrs Jessica Kellee Louise Kinslow gave evidence in a statement dated 23 July 2020.
She says she knew Mr Kinslow as a friend of her brother Benjamin before his injury. They did not begin dating until after the injury.
Her evidence does not assist in any finding that Mr Kinslow injured his thoracic spine on 23 September 2012.
She states:
“Over the years I have watched as he has become more hunched over and I am aware that because he tells me that he suffers significant pain in his low back, mid back and neck.”
Mrs Christine Wilmott, Jessica’s step mother, gave evidence in a statement dated 9 November 2020. Mr Kinslow and his wife Jessica moved in with Mrs Wilmott some time in 2015 and lived there for some two years. She gave evidence that she observed in that time he used heat packs to alleviate neck and back pian.
She gave evidence:
“From the time he came to live with is I would describe him as standing in a very guarded way. He did not stand straight he seemed to be leaning to one side or leaning forward guarding himself.
He would mention he would have pain in the whole of his back.”
Mrs Wilmott’s evidence does not assist any finding that Mr Kinslow injured his thoracic spine at the same time as he injured his lumbar spine at work on 23 September 2012.
The first clinical record of any thoracic pain is to be found in the discharge summary from Westmead Hospital dated 9 April 2016 (almost four years after the work injury):
“Mobilises with a limp, back tender on palpation in the midline from the lower thoracic to the sacrum.”
That is the high point of the clinical evidence supporting complaints about the thoracic spine because there is not one other clinical record or note that refers to the thoracic spine.
There is radiological investigation undertaken of the thoracic spine on 24 July 2019 (almost seven years after the work injury) which records a history of chronic back pain and shows the presence of a disc protrusion at T5/6. There is otherwise no treating material which addresses the thoracic spine and certainly no treating material that counsel for the applicant referred me to.
The applicant was referred by his GP to Dr Kuru, orthopaedic surgeon. Dr Kuru provided a report back to the GP on 22 November 2012 (some two months after the work injury) and the history taken and examination very clearly implicate the lumbar spine as the injured body part. There is no reference to the thoracic spine.
Dr Kuru takes a history:
“Thanks very much for asking me to have a look at Matthew Kinslow for assessment of non-specific back pain. On 23 September 2021 Mathew was listing a tray of dishes form the dishwasher at work. He acutely developed pain into his back. The pain is situated in the mid pint of his lumbar spine with occasional radiation into his groin and anterior thigh”.
The applicant says in his statement that he was concentrating, as were his doctors, on the low back pain which was the more acutely injured.
This seems to be given as an explanation for why he did not report thoracic spine pain.
On any view of the evidence, noting there is very little in the way of treatment evidence in this period, this explanation would not cover a failure to report any thoracic spine injury (that is injury that occurred on 23 September 2021) for some four years if, as applicant’s counsel concedes it to be, the discharge summary of 9 April 2016 is the first recoded complaint of thoracic spine pain in clinical records of any kind.
The applicant relies on the opinion of the independent medical expert (IME) qualified by the applicant’s lawyers Dr Patrick. Dr Patrick has provided four reports dated 6 January 2017, 30 January 2018, 14 March 2019 and 17 December 2019 respectively.
Dr Patrick first saw Mr Kinslow on 2 December 2016, again on 5 January 2017 and provided a report back to his lawyers on 6 January 2017.
Dr Patrick records a consistent history of injury to the low back as follows:
“Mathew Kinslow was handling a heavy tray filled with ceramic bowls and probably weighing about 30 kg from the dishwasher. He lifted it up carefully but then had to turn in a quite cramped situation to place the heavy tray on the bench behind. While he was doing this with a somewhat twisting motion he felt a sudden sharp pain in his low back and he reported this to the owner Wade and head chef Sarah. He continued in pain but competed his shift”.
Dr Patrick records the clinical history and notes that whilst a plain X-ray of the lumbar spine was done on 9 October 2012 there was no CT or MRI imaging carried out of the lumbar spine until 2015/2016.

When the CT scan was done on 12 January 2015 Dr Patrick notes it “showed significant lumbosacral discopathy with compromise to the left S1 nerve root”.
As to “present symptoms” Dr Patrick records: (my emphasis added)
“He has ongoing back pain and stiffness. Pain is felt now at lower thoracic and lumbar spinal regions. He complains of intermittent spasm at lumbar spine and mid/lower thoracic spine (he indicates).”
He notes the presence of leg weakness worse in the left leg.
He records:
“He has developed a somewhat forward stoop.”
He notes that Mr Kinslow believes he needs to see a specialist regarding his back as soon as possible and that it has all been “very prolonged” and he has had trouble getting in to see Dr Firch. I note Dr Firch later went onto operate on Mr Kinslow’s lower back later in 2017.
Dr Patrick conducted a physical examination the details of which he records.
He notes that Mr Kinslow is of “tall stature” with a height of 6 foot 2 inches.
He records:
“He stands with a forward stoop arsing at low lumbar region, Gait is tentative with a slight limp sparing left lower limb.”
He notes:
“There is significant muscle guarding evident at mid/lower thoracic spine and marked muscle guarding evident at lumbar spine paravertebrally.”
He records the presence of muscle atrophy in the left calf and diminution of sensation in left calf.
Dr Patrick opines on causation as follows:
“He has I believe sustained significant injuries during the course of his work on 23 September 2012 when he was lifting and carrying and twisting with the very heavy tray of ceramic bowls in a somewhat cramped situation after having retrieved the laden tray from the dishwasher. It is likely that at this time he has sustained a significant injury to lumbosacral disc (L5/S1) and probably also some associated ligamentous facet joint injuries at lumbar and lower thoracic spinal region. He now has complaints of pain and with clinical signs at both lower thoracic spine and lumbar spine.
The most recent MR imaging has indicated a large left paracentral extrusion at L5/S1 and with likely compromise to the left S1 nerve root. Clinically he does satisfy criteria for a left S1 radiculopathy arising at lumbar spine with 1.5 cm of left calf muscle atrophy together with some sensory deficit in appropriate dermatomal distribution and some mild asymmetry of deep tendon reflexes as well as some weakness as described. He describes poor balance.
I do believe that Mr Mathew Kinslow complained of ongoing symptoms as he describes now are genuine, consistent with and significant consequential upon injuries sustained on 23 September 2012 now more than four years ago.”
Dr Patrick went on to assess impairment of the thoracic and lumbar spines.
Dr Patrick saw Mr Kinslow again on 15 September 2017 and provided a report dated 30 January 2018.
This review took place after Mr Kinslow came to surgery on his lumbar spine at the hands of Dr Firch on 15 February 2017 when a microdiscectomy was performed on the lumbar spine. The insurer paid for the surgery.
Dr Patrick notes that an MRI wasn’t performed until 16 April 2016 on the lumbar spine and updates the history as follows:
“Matthew Kinslow had previously seen orthopaedic spinal surgeon Dr Kuru, but subsequent to this later MRI study he has been referred to and been seen by Dr Richard Ferch, neurosurgeon/spine surgeon and he has come to elective L5/S1 microdiscectomy for left sided sciatica , the surgery being carried out by Dr Ferch on 15 February 2017 some five months or so subsequent to the MRI of 14 September 2016 (which had actually been an MRI sacroiliac joints but demonstrating the significantly deteriorating lumbosacral disc pathology).
Matthew Kinslow was followed up at Dr Ferch’s neurosurgical outpatient clinic. There was some modest improvement post surgery but he was still using a crutch for walking and was continuing on significant analgesic medication. He came to repeat MRI because of his relatively slow progress and the letter by neurosurgical registrar Dr Sollis of 1 May 2017 indicates the repeat MRI reviewed by Dr Solis and Dr Ferch indicated no evidence of ongoing compression but some enhancement around the nerve root more consistent with scarring It was felt that further surgery was not indicated at this stage. He was still using a a stick in further review.”
He records present symptoms that included the following:
“Overall he believes his back pain has improved somewhat. He still does continue however with pain at lower thoracic and lumbar spinal regions and still with intermittent muscular spasms at lumbar spine as well as mid/lower thoracic spine.
He is still troubled by leg pain. He still uses a stick with him all the time. He does not feel confident without it. The left leg continues to give way somewhat and he continues with some degree of forward stoop.”
He notes he continues on strong pain relieving medication.
He again notes “he still has some degree of tendency to forward stoop.”
Dr Patrick conducted a physical examination of which there continued to be positive signs.
He notes:
“He continues with some degree of forward stoop arising at low lumbar region. Gait continues to be tentative. He is able to walk without a stick but gait continues to be somewhat antalgic sparing left leg.”
Dr Patrick notes that further review has not caused him to significantly alter his opinion since his first report. The impairment rating for the lumbar spine increased because of the surgery and his rates impairment for the lumbar spine and thoracic spine.
He notes the delay until the surgery was performed as follows:
“Since last seen he has come to the necessary lumbar spinal surgery of 15 February 2017. there has been some significant delay with such surgery considering the large disc protrusion at lumbo sacral level demonstrated on MRI of 14 September 2016. I do believe the evidence is that Matthew Kinslow lumbar spinal pathology and need for surgery of 15 February 2017 is directly as a consequence of the work injury sustained on 23 September 2012. He is still only 23 years old and was only just 18 years of age (nearly 19) at the time of his workplace injury.”
It is not in dispute that Mr Kinslow came to surgery on his lumbar spine as a result of his work injury.
Dr Patrick provided a further report of 19 March 2019 without further review of the applicant but with the benefit of the applicant’s statement dated 18 February 2019.
The applicant’s lawyers sought clarification as follows:
“Are you able to say that on the basis of the matters raised in all the evidence including his further statement that his thoracic pain is part of or consequential upon the original low back injury?”
Dr Patrick writes back in his report dated 19 March 2019 that given the symptoms in the thoracic spine present on examination and noting that lay person don’t usually know where the thoracic spine starts and ends, and given the mechanism of injury and the fact that taller individual are more prone to thoracic spine injuries in the context of the circumstances of this type of injury, he considers that Mr Kinslow either injured the thoracic spine on 23 September 2012 and/or the thoracic spine symptoms are consequential upon the injury on 23 September 2012.
Dr Patrick is then asked by the applicant’s lawyers to further examine the applicant which Dr Patrick undertakes on 27 September 2019 and provides a report dated 17 December 2019.
In this report he assesses impairment for the cervical spine, thoracic spine and lumbar spine.
Dr Patrick notes “further progress” as follows:
“Since lasts seen by me Matthew Kinslow has continued with significant ongoing symptoms at both thoracic and lumbar regions, but also now some recurrence of neck discomfort which had been present early on subsequent to his work injury of September 2012 and I have previously seen MRI cervical spine as arranged by Dr Elsie Seligmann of Morisset and carried out on 16 April 2016 with the radiologist reporting a minimal degree of central disc protrusion at C6/7 level in a then just 22 year old and the reporting radiologist Dr Colin Walker has noted ‘the history of back injury numbness and weakness left leg and neck pain with pins and needles in the forearms…’.It is be noted that unfortunately no CT or MR imaging studies had been carried out until 2015/2016 subsequent to the work injuries of 23 September 2012 and this is at best unfortunate.”
Dr Patrick recorded “present symptoms” as follows:
“He does continue with significant persisting back pain at mid/lower thoracic and lumbar regions. He also has some recurrence of neck discomfort and stiffness.
He is not confident without taking a stick with him all the time. He can take steps without a stick and is not totally reliant on the use of a stick, but he certainly does not have confidence walking without it. He continues with a significant quite genuine forward stoop. He is tall.”
He goes onto note that he cannot stand upright, always has some degree of forward stop or slump, is prone to falling and is discomfort much of the time, he has spans in mid and lower back.
Dr Patrick performed a physical examination and there are positive findings in the cervical spine, thoracic and lumbar spine.
Dr Patrick records that the forward stoop is genuine with standing or walking.
Dr Patrick goes on to opine:
“Further examination of Mr Matthew Kinslow does not cause me to significantly alter my ‘opinion’…except that I do believe now that Mr Matthew Kinslow ‘s cervical spine is rateable for impairment assessment. There was some early complaint of neck pain and stiffness, but his lower back pain was predominant and his cervical spine was largely ignored. The only early imaging study carried out post accident was a simple Xray of lumbar spine on 19 October 2012and unfortunately Mathew Kinslow has not come to any further imaging studies until CT scan lumbar spine of 2015 which led to a Ct guided injection on the left at S1 and with the MRI cervical spine being carried out on 16 April 2016 demonstrating some degree of pathology at the C6/7 level in a then just 22 year old. He clearly has marked muscle guarding now at cervical spine but not satisfying the criteria for a cereal radiculopathy. He does have marked muscle guarding at thoracic spine with significant pathology at T5/6 level and withs some thoracic intercostal radicular symptoms and he also continues with the persistent demonstrable radiculopathy affecting left lower extremity subsequent to his own work injury related surgical procedures being the L5/S1 microdiscectomy for left lower limb sciatica by Dr Ferch on 15 February 2017.”
He then goes onto assess the cervical spine impairment.
There is however no explanation on causation of the cervical spine. Whilst consequential condition just have to be found to result from injury, I have no medical explanation on causation as to why the cervical spine symptoms result from the injury by the IME on which the applicant relies. There are no treating reports about the cervical spine linking this to the injury.
Whilst Dr Rimmer, IME qualified on behalf of the respondent just dismisses the allegation of a consequential condition in the cervical spine or thoracic spine as a result of injury to the lumbar spine on the basis that the applicant never mentioned these complaints to him and that the applicant is engaging in abnormal illness behaviour, I really cannot give Dr Rimmer’s opinion much weight. He is not qualified to give an opinion about abnormal illness behaviour and there is no evidence that the applicant has been diagnosed by any treating doctors as nagging in illness behaviours that are abnormal. Even if Dr Rimmer was qualified to diagnose the applicant as engaging in abnormal illness behaviour, he does not explain to me why it can be characterised as abnormal illness behaviour particularly in light of the genuine nature of the lumbar spine injury in 2012 which resulted in surgery in 2017.
Even with the deficiencies in Dr Rimmer’s opinion, the applicant still has to satisfy me on the balance of probabilities on the evidence tendered in support of his case, that he has suffered a consequential condition in the cervical spine. When I weigh all of the evidence in the balance, the applicant cannot be said to have discharged the onus of proof in respect of the alleged consequential condition in the cervical spine and there will be an award for the respondent in this regard.
For the reasons outlined above, there will be an award for the respondent on the allegation of injury of the thoracic spine on 23 September 2012.
There is an award in favour of the applicant in respect of the allegation of a consequential condition in the thoracic spine as a result of the lumbar spine injury. I am satisfied, on the balance of probabilities, that when Dr Patrick’s evidence, whose evidence on this issue I prefer to that of Dr Rimmer for the reasons given, as to the observed postural changes resulting from the lumbar spine injury is weighed in the balance with Mr Kinslow’s evidence and that of the various witnesses who observed his tendency to stoop and noting that the lumbar spine surgery resulting from injury did not take place until 2017, which delay Dr Patrick regards as significant, that the consequential condition in the thoracic spine has developed over time and is as a result of injury to the lumbar spine on 23 September 2012,.That is, when I weigh all of the evidence in the balance I am satisfied on the balance of probabilities that Mr Kinslow suffered a consequential condition in the thoracic spine as a result of the undisputed lumbar spine injury on 23 September 2012.
Accordingly, the matter will be remitted for referral to a MA to assess the lumbar spine and thoracic spine.
My orders are accordingly as follows:
(a) The matter is remitted to the President for referral to a MA pursuant to s 321 of the 1998 Act for assessment as follows:
(i)Date of Injury: 23 September 2012;
(ii)Body systems/parts: Lumbar spine and thoracic spine (consequential), and
(iii)Method of assessment: whole person impairment.
(b) The documents to be forwarded to the MA are as follows:
(i)The Application and all documents attached.
(ii)Application to Admit Late Documents filed by the applicant being Discharge Summary dated 9 April 2016 tendered at the arbitration and to be filed within three days as a late document.
(iii)The Reply and all documents attached.

[2023] NSWPIC 432

30 August 2023