Larden v Ford

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Larden v Ford [2024] NSWPIC 466
APPLICANT:	Daniel James Larden
RESPONDENT:	Alan Sidney Ford
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	23 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation with respect to accepted injuries to right elbow and right shoulder and resulting scarring; respondent disputed that applicant had also sustained injury to cervical spine; first record of injury to cervical spine over one year after date of injury; differing accounts of mechanism of injury; Onassis v Vergottis, Watson v Foxman, Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, King v Collins and Nguyen v Cosmopolitan Homes considered; Held – award for the respondent for claim for injury to cervical spine; matter remitted to the President for referral to Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent for the claim for injury to the cervical spine. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 7 January 2020. Body systems/parts: right upper extremity (right elbow and right shoulder) and TEMSKI/scarring. Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 12 July 2024 and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant, Daniel James Larden (Mr Larden) was employed by the respondent, Alan Sidney Ford, as a farm hand/fencing labourer.
On 7 January 2020, the applicant sustained an injury to his right elbow and right shoulder when he was kicked by a sheep. He also claims to have sustained an injury to his neck.
By letter dated 18 July 2023, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant claimed the sum of $65,050 in respect of 24% whole person impairment (WPI) as a result of injury to his right upper extremity (right elbow and right shoulder); cervical spine; and TEMSKI/scarring.
On 28 November 2023, the respondent’s insurer, EML, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed that the applicant’s injury had resulted in more than 10% permanent impairment, as required by s 66(1) of the 1987 Act.
EML did not dispute that the applicant had sustained injury to his right elbow and right shoulder, or that his scarring resulted from the surgery he had undergone.
EML disputed that the applicant had sustained injury to his cervical spine; that employment was a substantial contributing factor to such injury; and that employment was the main contributing factor to the contraction of, or aggravation, acceleration, exacerbation or deterioration of any disease injury to his cervical spine.
By letter dated 10 May 2024, the applicant’s solicitors requested a review of EML’s decision.
On 24 May 2024, EML advised the applicant’s solicitors that its decision to dispute liability was maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on 3 June 2024.
The applicant claimed that on 7 January 2020, he was required to pen the sheep for shearing when he was unexpectedly kicked by a sheep. As a result, he sustained significant injuries to his right elbow, right shoulder and cervical spine.
The applicant claimed the sum of $65,050 in respect of 24% WPI as a result of injury to his right upper extremity, cervical spine, and TEMSKI/scarring.
The respondent lodged its Reply on 24 June 2024.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury to his cervical spine on 7 January 2020, and
(b) the applicant's WPI, which will be the subject of assessment by a Medical Assessor.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing by the Teams platform on
6 August 2024.
Mr Barter of counsel appeared for the applicant, instructed by Ms Norton. Ms Warren of counsel appeared for the respondent, instructed by Ms Cincotta. The applicant was present. Ms Williams of EML also attended.
The parties agreed that, regardless of the outcome of the dispute as to injury to the applicant’s cervical spine, the medical dispute as to his WPI would be referred to a Medical Assessor.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 12 July 2024 and attached documents, lodged by the respondent.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Daniel James Larden

Mr Larden’s first statement is dated 25 January 2024.
He sustained an injury to his right elbow at work in or around 2018. Although there was no clear diagnosis, he had remained symptomatic, experiencing pain on his elbow and joint area.
On or around 7 January 2020, he was mustering sheep. One of the sheep kicked him in the right arm and again in the face shortly after, as he was holding it down for shearing.
He felt sharp pain that travelled throughout his upper body and down his arm. He experienced severe and lingering shoulder and bicep pain, which radiated from the point of impact to the surrounding areas. During the initial impact, his body was twisted to the side, causing significant straining to his lower back and shoulders.
After a few days of rest and minimal use of his right arm, the pain remained consistent, and he could no longer return to work.
On or around 12 January 2020, he went to his regular GP (general practitioner), Dr Huda Matrook. She reviewed his condition and referred him for scans to be done later that month.
On or around 28 January 2020, he received his first X-ray. He also received ultrasound and MRI scans. He was referred to Dr Matthew B. Howard, orthopaedic surgeon, in May 2020.
On or around 6 May 2020 he was reviewed by Dr Howard, who recommended surgery.
Dr Howard performed an operation on his right elbow and bicep on or around 29 June 2020.
On or around 25 March 2021, he had a second surgery to his right shoulder.
From around May 2021 to March 2022, he regularly visited his GP and Dr Howard for checkups. He remained off work and managed his pain and symptoms with painkillers and physiotherapy.
On or around 24 March 2022, he was referred to spinal surgeon Dr Bhisham Singh.
From July 2022 to April 2023, he continued to experience numbness in his arms, constant headaches, and neck and spinal pain continuously.
The applicant made a second statement, dated 26 April 2024.
The statement “aim[ed] to address” the dispute that his physical injury had not reached more than 10% and his cervical spine injury did not arise out of the course of his employment. As such, it would detail his neck injury.
He was kicked in the face and arm by a sheep. As a result of this sudden impact, he experienced sharp pains throughout his upper body, including his neck and upper spine. As a result of his second operation, the pain in his neck became more severe and worsened over time.
As a result of the incident, he developed severe pain in his right arm and shoulder, along with pain in his neck. He was suffering from excruciating pain his right arm and shoulder, making it difficult for him to carry out daily tasks, such as shopping. He struggled to reach up to get a cup out of the cupboard, as the overhead movement caused a sharp pain. Even though during this time he experienced pain and discomfort in his neck, he did not think much of it, as he was consumed by the pain in his right arm and shoulder.
On 29 January 2021, he consulted Dr Eric Lim. Dr Lim explained that, in response to being kicked in both his right arm and neck, he jolted and moved his neck suddenly, causing pain and injury. He explained to Dr Lim that the pain in his neck had started to radiate down the right side of his shoulder, arm, elbow, and hand.
In or around April 2021, he began consulting Dr Sebastian Calvache-Rubio. Dr Calvache-Rubio opined that the pain he was experiencing in his right shoulder and neck was the result of becoming less active and gaining weight.
After the initial surgery to his elbow, he was unable to use his right arm in the recovery period, as it was in a cast. This placed additional pressure and strain on other parts of his body, particularly his neck, to carry out daily tasks, further exacerbating his neck pain due to overcompensation.
Following this surgery, he continued to have pain in his right shoulder, as well as his neck. However, the pain in his shoulder was overpowering and worsened whenever he did any overhead activities. Dr Howard recommended that he undergo surgery to treat the shoulder pain.
Throughout this time, he was consumed by his right shoulder pain. Although he was experiencing some neck pain, he made minimal complaint as he focused on healing his right shoulder.
He underwent a shoulder reconstruction on 25 March 2021. Immediately following, he started experiencing worsening pain in the left side of his neck. The pain started impacting his ability to carry out household duties. He consulted Dr Howard, who advised that he undergo regular physiotherapy.
He began consulting physiotherapist Anna Reichelt. She observed that he had persistent right sided neck pain with numbness and tingling in his fingers.
He consulted with Dr Calvache-Rubio, who noted that his neck injury was clearly a result of the sheep kicking him in the arm. Dr Calvache-Rubio acknowledged that his complaints of neck pain due to the injury dated back to the injury, worsening following his right shoulder surgery.
Although he had been experiencing pain and discomfort in his neck since the injury, he was completely consumed by the pain in his right shoulder and arm. As this pain was excoriating [sic] he was fixated on his right shoulder and arm over his neck.
He underwent several surgeries, medical consultations, and scanning. He was overwhelmed by the pain and fatigued by his inability to sleep and the appointment logistics. Therefore, he persevered through the pain in his neck as, at the time, it was inferior to his right shoulder and arm injuries.
It was not until early 2021, when the pain in his neck significantly worsened, that he realised the full extent of his injuries.
The insurer relied on the opinion of Dr (Ron) Haig. He did not believe this opinion should hold any weight, as Dr Haig failed to perform a thorough examination of his right shoulder and elbow, dismissing all his concerns and complaints.
Dr Haig’s examination was short, and only consisted of general questioning, which he found “concerning”. Dr Haig did not perform any in-depth practical examination of his right shoulder and elbow. As such, he found his report and opinion to be “very inaccurate and unreliable”.
Dr (Eugene) Gehr opined that his employment was the cause of his injuries, confirming that his neck injury was not consequential but directly resulted from the subject injury.
Dr Lim opined that the onset of his neck injury was a direct result of the sheep’s kick to his face. This was similarly opined by Dr Singh. He was similarly of the view that his neck injury was a direct result of the subject injury.

Medical evidence

West Wyalong Medical Centre

On 14 January 2020, Dr Matrook recorded that the applicant had a previous right hand/wrist injury in 2017 and had WorkCover. He had last been seen in July 2017.
Dr Matrook recorded that the applicant said he had “pain all the way” (assumed to mean all along), which was triggered most recently last Monday by working “rouseabout shering [sic]” which had aggravated it. The applicant now had “pain in the elbow going up to the shoulder/down to the wrist.” There was no numbness, apart from when he rested it on the arm [of a] chair.
Dr Matrook examined the applicant’s right elbow. There is a report of an X-ray of his right elbow on 16 January 2020, MRI of his right elbow on 18 March 2020, and ultrasound of his right elbow on 28 January 2020.
On 7 February 2020, Dr Matrook recorded that she had advised the applicant “re results”, and “needs to do WorkCover, speak to work.”
On 11 February 2020, Dr Matrook recorded that ultrasound showed a significant partial thickness tear of the insertion of the biceps tendon to the bicipital tubercle of the radius. The applicant had mild swelling and restricted movements of the elbow.
On 19 February 2020, Ms Bernadette Connell, receptionist, recorded that she had spoken to the applicant’s former employer regarding his claim number. The applicant had not worked for that employer for over two years, and the claim had been finalised. The applicant’s previous consultations were charged to Medicare.
On 12 March 2020, Dr Matrook recorded having given the applicant “prints from his WorkCover – paperwork 2017”. They had “discussed all”.
On 23 March 2020, Dr Matrook recorded the results of MRI of the applicant’s elbow.
Dr Matrook referred the applicant to Dr Howard with an “injury to right upper limb after work as a roustabout”.
On 21 April 2020, Dr Matrook recorded having discussed with the applicant’s case manager his current and 2017 injuries, and his MRI result. The applicant needed a certificate of capacity (COC) from February.
Dr Matrook sent the applicant two messages to ring her.
On 24 April 2020, Dr Matrook recorded a telephone consultation. She recorded “PAIN: coping ok if not working.” The reason for contact was recorded as “shoulder injury WorkCover.”
The applicant was advised to take paracetamol and come back if he was not better, or symptoms persisted. He was also advised to rest and avoid overworking.
On 20 May 2020, Dr Matrook recorded that Dr Howard was asking permission to repair the applicant’s distal biceps/right elbow injury.
The applicant attended the practice twice in May 2020 with an injury to his left middle finger.
On 11 August 2020, Dr Matrook recorded a telephone consultation, in which she discussed with the applicant Dr Howard’s letters, his operation, and his management. The applicant was educated about his condition, management, complications, review, and follow up.
On 17 August 2020, Dr Matrook recorded a telephone consultation. She noted Panadol osteo, shoulder pain, and a discussion of WorkCover. The applicant’s management plan was “review if not better”.
On 21 September 2020, Dr Matrook recorded that the applicant was “happy”. He had a good range of motion with his right elbow. He still had mild pain in his right shoulder and was told by Dr Howard it was possibly the effect of immobilisation.
On 2 November 2020, Dr Matrook had a discussion with the applicant in person and “Brendon”, rehabilitation consultant, by telephone. She recorded “right shoulder after distal biceps repair, pain & restricted movements”.
On 17 November 2020, Dr Matrook recorded a telephone consultation – “pain from injured right shoulder”. The MRI result and physiotherapy were discussed. The applicant was to see Dr Howard on 24 November 2020.
On 7 December 2020 Dr Matrook recorded the reason for contact as “shoulder injury”.
On 13 January 2021, the reason for contact was again recorded as “shoulder injury”.
Dr Matrook also recorded a second consultation by telephone, when “this patient was rude with me for second consultation”, so she had advised him to move to another GP. He accepted that and was coming for his summary.
Dr Matrook recorded “script for pain after advising him about pain management, side effects.” She provided the applicant with WorkCover and Centrelink certificates to give him time to find another GP.

Dr Matthew B. Howard – orthopaedic surgeon

Dr Howard reported to Dr Matrook on 8 May 2020.
Dr Howard recorded that the applicant was performing some fencing work [sic] in January when he injured his right elbow. He felt immediate pain around the anterior aspect of the cubital fossa. He was briefly able to continue working but had to stop work due to ongoing pain.
There had been issues having the applicant reviewed due to COVID-19, but an MRI showed rupture of the right distal attachment of the biceps. This was confirmed on clinical review.
Dr Howard recommended and requested approval for right elbow distal biceps repair. The surgery was performed on 29 June 2020.
Dr Howard reported to Dr Matrook on 27 July 2020 that the applicant’s repair was intact, and he was to be in a brace for approximately six weeks, when it was to be unlocked. The applicant could wean the brace over the next few weeks.
On 17 September 2020, Dr Howard reported to Dr Matrook that the applicant was “not going too badly” following the surgery but had been complaining quite markedly of shoulder pain.
Dr Howard was interpreting this as due to immobilisation but opined that the applicant could have an underlying problem that was related to his workplace accident. At that time, they would “press on” with the applicant’s rehabilitation. Dr Howard was happy for the applicant to perform light duties.
On 12 November 2020, Dr Howard reported to Dr Matrook that the applicant was “still struggling along a little bit” with his rehabilitation. Dr Howard had written several notes to the physiotherapist, but the applicant had not seen the physiotherapist post-operatively.
The applicant’s right shoulder had been painful “of late”, and the insurer had approved an MRI, which Dr Howard thought it would be reasonable to obtain.
Dr Howard would see the applicant with the MRI, when “we can sort his shoulder out” and then “get his elbow moving with the assistance of a physiotherapist”.
Dr Howard reported to EML on 22 December 2020, in response to a series of questions posed by EML.
Dr Howard reported that when he first saw Mr Larden, he was complaining of pain in both the upper aspect of his arm and his elbow. He had an obvious rupture of the distal biceps but was also complaining of pain around the shoulder.
Dr Howard was “certainly happy to accept” that the applicant’s shoulder and elbow pain were related, and time related to his workplace incident. The applicant was complaining about pain around his shoulder to begin with, but clearly he had a distal biceps rupture that required attention.
On 4 March 2021, Dr Howard reported to Dr Lim.
Dr Howard reported that the applicant’s elbow was “not too bad”, but his shoulder was “really bothering him”. Approval had been received for the arthroscopic procedure.
Dr Howard reported to Dr Lim on 26 March 2021 that he was happy with the way the applicant’s surgery proceeded. He thought the applicant’s pain had been related to the biceps and the SLAP (superior labrum anterior and posterior) tear, but having debrided this, it should settle down.
On 20 April 2021, Dr Howard reported to Dr Lim that the applicant was “not going too badly”. He had re-adjusted the applicant’s physiotherapy. The applicant could probably start to perform suitable duties in the next three to four weeks.

Dr Howard did not see the applicant after April 2021.

Synergy Healthworks Physiotherapy & Fitness Centre

On 25 June 2020, Mr Thomas Burge recorded that the applicant’s injury was from “lifting sheep.” He was to undergo biceps repair surgery on 29 June 2020.
Mr Burge examined the applicant’s right elbow.
The applicant failed to attend scheduled appointments on 15 July 2020 and
9 September 2020.
On 13 May 2021, Ms Reichelt recorded a history that the applicant was lifting sheep when he felt a “snap”.
Ms Reichelt recorded that the applicant had constant right shoulder and arm pain post injury in January 2020. He could not sleep on his right side. He also had right sided neck pain with some numbness/tingles in the fourth and fifth fingers.
Ms Reichelt further recorded that the applicant’s right sided neck pain had resolved. The left side of his neck had been “fine pre-op”, but he had stiffness since the surgery. Dr Howard had said it was probably because he had no pillow on that side during surgery.
On 28 May 2021, Ms Reichelt recorded that the left side of the applicant’s neck was not as bad as at his last visit but was still a bit stiff.
On 2 June 2021, Ms Reichelt recorded that the applicant had a sore neck and elbow after his last “rx, then settled”. The applicant still had a bit of numbness in the fourth and fifth fingers, but now thought it might have been from leaning on the ulnar nerve. The left side of his neck had “improved a bit but still present”.
The applicant cancelled or did not attend numerous appointments. He advised that the reason was that workers compensation would not cover travel costs from West Wyalong to Wagga Wagga.
Ms Reichelt telephoned the applicant on 6 September 2021. He reported that his right shoulder blade and left side of his neck were still sore. “Reiterated previously expressed belief that neck soreness is a ‘kink’ from lying position during surgery.”
On 25 October 2021, Ms Reichelt recorded that the applicant had overall improved a lot. He got a twinge in the left side of his neck every few days. It had not fully resolved since he woke up from surgery in “LLF and pain when went to move head”.

Workers Doctors

On 3 February 2021, Dr Lim recorded that the applicant presented on 29 January 2021 for an injury to his neck/shoulder/arm.
Dr Lim recorded a history that on 7 January 2020, the applicant suffered neck, shoulder, and arm injuries after he was kicked in the right bicep by a sheep. A sheep kicked him in the right arm and again in the face.
“From [Dr Lim’s] understanding” of the applicant’s role, “it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks”. The history was consistent with employment being the main contributing factor to the injury.
Dr Lim recorded the applicant’s symptoms as headaches, neck pain travelling down the right shoulder, right arm pain, right elbow pain, pins and needles in the right hand, trouble sleeping, depression, anxiety, stress, low mood and low energy.
Dr Lim diagnosed cervical spine strain, right shoulder strain, right bicep rupture, and chronic pain, with psychosocial barriers. He opined that the applicant had suffered neck, shoulder, and arm injuries.
The applicant had “come to see us because 2 GPs in his local town have refused to deal with work injuries, and he needs help”.
On 23 March 2021, Dr Calvache-Rubio recorded a history of the injury that was identical to that of Dr Lim. The wording and punctuation suggest that it was cut and pasted from Dr Lim’s entry.
Dr Calvache-Rubio recorded that the applicant continued to struggle with pain in the right shoulder and neck. He was having shoulder surgery in two days.
On 30 April 2021, Dr Calvache-Rubio recorded that the applicant was “out of sling”. He had shoulder and neck pain, ongoing discomfort.
On 25 May 2021, Dr Calvache-Rubio recorded multiple injuries, neck, shoulder, and arm pain.
On 22 June 2021, Dr Calvache-Rubio recorded diagnoses of cervical spine sprain, right shoulder strain, right biceps rupture, and chronic pain, with psychosocial barriers. These continued to be the diagnoses.
On 24 February 2022, Dr Calvache-Rubio effectively reproduced Dr Lim’s report dated
3 February 2021.
Dr Calvache-Rubio added that the applicant had neck, shoulder and arm injuries after he was kicked in the right biceps and face by a sheep. Work was the main contributing factor to the injury. The applicant also had psychological distress as a result of chronic pain and functional restrictions.
Dr Calvache-Rubio opined that it was clear from the mechanism of injury that the applicant had a forceful incident whilst dragging a sheep from the pen. The sheep kicked him with enough strength to rupture his biceps tendon. The applicant was also kicked in the face “which has most likely cause[d] a neck injury. He has been complaining of neck pain since this incident”.
Dr Calvache-Rubio disagreed with Dr Doig, “as he did not take the correct history”. It seemed, moreover, that “the insurance doctor” had omitted that the applicant still complained of persistent neck pain, with restricted movement and numbness in both hands.
On 21 April 2022, Dr Calvache-Rubio recorded that the applicant had multi-level disc bulge, desiccation and foraminal stenosis “(MRI)”, right shoulder strain, right bicep rupture with surgery repair, chronic pain, with psychosocial barriers, and shoulder surgery.
On 19 May 2022, Dr Calvache-Rubio recorded that the applicant also had mid back and lower back pain.
On 16 June 2022, Dr Calvache-Rubio recorded that the applicant “remembers” that after the right shoulder surgery, he had to wear a sling for several weeks. He was unable to support his weight with his injured arm, “altered posture”. He began experiencing back pain and stiffness referred to the lower leg, and difficulty bending. This had been “persistent since”.
The applicant said his back pain had been aggravated while he was trying to do shoulder physiotherapy, “and the exercises”. He had seen a spinal surgeon. He had severe foraminal stenosis and bulging disc, “on the setting of years of physical work prolong[ed] bending as a shearer”.
On 9 August 2022, Dr Lim reported in substantially the same terms as his previous report. He added that following his shoulder surgery, the applicant was unable to support his weight while his arm was in a sling, causing altered posture that aggravated his lumbar spine.
On 24 April 2023, Dr Htun Htun Oo recorded that the applicant had pain in the shoulder, right side of the neck, and right side of the hip. He noted issues of neck, shoulder and back.

Dr Graeme Doig – orthopaedic surgeon

Dr Doig reported on 14 December 2021.
Dr Doig recorded a history that, contrary to EML’s letter of instruction, the applicant was not working as a shearer, but as a roustabout, when he was injured. The applicant was dragging a sheep from a pen when he felt a snapping sensation in his right upper arm, with associated pain.
Dr Doig set out the history of the applicant’s treatment.
The applicant complained of shoulder pain with activity. It could wake him at night.
Dr Doig opined that the applicant had sustained a soft tissue injury to his right arm and shoulder, in particular the biceps muscle. He found no evidence of a cervical spine injury, with no relevant findings on examination.
Dr Doig recorded that the applicant was uncomplaining with respect to his cervical spine. He opined that “this is completely unrelated to the incident of 7 January 2020”.

Dr Bhisham Singh – orthopaedic specialist

Dr Singh reported to Dr Calvache-Rubio on 28 April 2022.
Dr Singh recorded a history that the applicant was injured after being hit by a sheep. He was diagnosed with a distal biceps tendon rupture and pain going down the arm. He underwent arthroscopy of his right shoulder and repair of the distal biceps. After the second operation, the applicant had a lot of neck and arm pain and ongoing pins and needles. He also described sciatica.
Dr Singh referred the applicant for neurophysiological studies of his right upper limb and MRI of his lumbar spine.
The neurophysiological study was reported on 17 June 2022 by Dr Angelo Jayamanne.
Dr Jayamanne recorded a history of shooting neck pain that radiated into the applicant’s right upper limb. The onset of the symptoms was reported to have been since the shoulder surgery.
Dr Singh reported on 8 July 2022 that the neurophysiological studies showed a lack of response in the cutaneous nerve in the applicant’s arm. An MRI of the applicant’s lumbar spine was reported as showing severe stenosis at L5/S1 on the right side.
Dr Singh then reviewed the applicant and reported to Dr Calvache-Rubio on
29 November 2022.
Dr Singh reported that, “as you know”, the applicant had an injury to his lower back and neck when he was holding a ram down for shearing. During the struggle to subdue the animal, the applicant felt something going in his shoulder and arm.
The applicant continued to have signs and symptoms of neck and arm pain, with pins and needles. He also had lower back pain and pain in the interscapular area.

Dr Danny Tang – injury management consultant

Dr Tang recorded on 5 October 2022 a history that the applicant was dragging a sheep out of the pen and felt his right biceps tendon snap. He had numbness in his right arm and headache.
The applicant continued to work, using mainly his left hand. He saw his GP on
12 January 2020, was sent for X-ray, “and nothing else was done”.
The applicant was sent back to work and progressively got worse. He eventually had MRI of his right shoulder “and this tear” [sic]. He had surgical management to his right elbow on
12 June 2020 and his right shoulder in around August 2021. He had not improved since the surgery.
The applicant complained of right shoulder pain of 8/10, and right elbow pain of 6/10.
Dr Tang reported to EML on 16 October 2022.
Dr Tang noted that he had asked the applicant “if he could provide a history of the mechanism of injury as she [sic] recalled it”.
The history recorded by Dr Tang was that the applicant was pulling a sheep out of the pen, and as he was performing this task, he felt his right biceps tendon “snap”, and then felt a sudden numbness in his right upper limb, and headache. The applicant continued to work for the rest of the day, using mainly his left upper limb.
The applicant consulted his GP on 12 January 2020, was sent for X-ray, and sent back to work. His right upper limb progressively worsened, and he was sent for MRI. Dr Tang then recorded the applicant’s surgical treatment. The applicant stated that his pain and discomfort had improved since he had the surgeries.
The applicant had not been back to work and had not been able to find work within his restrictions.
Dr Tang had explained to the applicant that he had been contracted by the insurer to form an objective opinion as to his ability to return to work on suitable duties and pre-injury duties.
Dr Tang recorded six dates in October 2022, with several/numerous attempts on each date, when he tried to contact Dr Calvache-Rubio, all attempts being unsuccessful.
Dr Tang reported that the applicant did not disclose any pains in his lower back, but only in his cervical spine and thoracic spine. The causal link between the cervical and thoracic spines was “still possible based on the mechanism of injury”.

Dr Eugene Gehr - orthopaedic surgeon

Dr Gehr was qualified by the applicant and reported on 24 April 2023.
Dr Gehr recorded a history that the applicant was penning sheep when he was suddenly kicked by a sheep, injuring his right elbow and rotator cuff.
The applicant told Dr Gehr he had persisting problems with his right shoulder. He had pain at the base of both sides of his neck, over the posterior vertical border of the scapula, and over the superior aspect of the right shoulder. He had no discomfort over the right elbow.
Dr Gehr diagnosed right distal biceps tendon rupture, right shoulder rotator cuff tear, and cervical spine pain with guarding and dysmetria.
Dr Gehr was asked whether the applicant had sustained any consequential conditions due to the injury to his right elbow and right shoulder. He responded, “These are not consequential injuries. These are injuries from the time of subject accident.”
Dr Gehr assessed the applicant’s WPI as 24%, which included 8% WPI as a result of injury to the cervical spine.
In a supplementary report dated 4 May 2024, Dr Gehr reported that he had no documents suggesting pre-injury problems with the applicant’s cervical spine. He noted a CT scan dated 7 March 2022, after the accident. He opined that whatever imaging changes were shown in the MRI may have remained asymptomatic for another five or 10 years, or even indefinitely, had it not been for the accident.
Dr Gehr referred to the reports of the applicant’s treating doctors, which “document clearly the incidents or the onset of cervical spine pain from the time of subject accident”.
Dr Gehr again opined that the applicant had not sustained a consequential condition of his cervical spine. The applicant had sustained an injury to the right distal biceps tendon. “Also right shoulder. Also cervical spine.”
Dr Gehr based his opinion that the applicant had sustained a frank injury to his cervical spine on the history he obtained on examination and the documents provided to him.

Dr Ron Haig – orthopaedic surgeon

Dr Haig was qualified by the respondent and reported first on 6 October 2023.
Dr Haig recorded a history that the applicant was dragging a sheep out with his arms extended. He experienced a sensation of numbness and pain in the right upper extremity, and his arm went “limp”. With the help of his partner, he finished that and the next day’s work.
The applicant consulted his usual doctor about five days later. He was sent for an X-ray, given two weeks off, and “told he would be right”. He consulted that GP for a further period of time but stated that “she didn’t want to deal with me anymore”.
Dr Haig noted the applicant’s surgeries. The applicant claimed to continue with symptoms.
Dr Haig asked the applicant about his neck. The applicant “related no injury to the neck”.
The applicant was questioned about his right upper extremity. He stated he “can’t grab stuff…with gripping pain up the forearm and upper arm…numbness everywhere…pain (where he indicated the axilla) …and pain going into the shoulder blade area.” Dr Haig noted that the applicant was poorly articulate.
Dr Haig referred to the widely varying accounts of the injury in other reports. “Be that as it may”, it appeared that the injury the applicant sustained was a ruptured distal tendon of the biceps. This took some time to recognise, and surgical repair was performed, with what appeared to be a good result.
The applicant also complained throughout that time of pain in the shoulder. He had his shoulder arthroscoped, “with not much to find.” He continued to have what Dr Haig described as “somewhat bizarre symptoms” in the right upper extremity, which Dr Haig did not believe had an organic basis.
With regard to the applicant’s neck, Dr Haig opined that there had been no injury, either at the time of the injury to his arm, or since. Dr Haig had no reason to believe any cervical spine complaint was related to the injury to the applicant’s right upper extremity.
Dr Haig agreed with Dr Doig’s conclusion that there was no evidence of a cervical spine injury. He assessed 0% WPI as a result of injury to the applicant’s right elbow and right shoulder. He did not provide an assessment of scarring.
Dr Haig provided a supplementary report dated 1 July 2024. He was provided with further evidence, including the applicant’s statements, and various clinical records.
Dr Haig noted that there appeared to have been quite different histories regarding the mechanism of injury, including that the applicant was kicked by a sheep. The applicant related no injury to the neck to Dr Haig. Dr Haig referred to the documentation showing complaints regarding the applicant’s neck.
As regards the applicant’s comment on his examination, Dr Haig noted that his report referred to him having examined the applicant's cervical spine, right shoulder, and right elbow.
Dr Haig noted that Dr Doig had recorded in December 2021 that Mr Larden had not complained about his cervical spine.
The further evidence did not cause Dr Haig to alter his opinion in respect of injury to the applicant’s cervical spine, but rather reinforced his opinion. He had no reason to believe the alleged cervical spine condition was a consequential condition. He failed to see any connection between the cervical spine, where the applicant had no complaints on presentation to him, and an injury to the right elbow.

SUBMISSIONS

Counsels’ submissions have been recorded. I will summarise their main points.

Applicant

The applicant submitted that he had brought this situation on by “drip-feeding” his symptoms, and he “has form” in this. There is no doubt that his focus would have been on his ruptured bicep.
Dr Howard is a shoulder and joint specialist. He had explained to EML that the operation to the applicant’s right shoulder still resulted from the accident, although he had made no complaint about his shoulder, because he was fixated on his ruptured bicep.
The applicant submitted that he had complained of neck pain to Dr Lim on 3 February 2021, before the second operation. This was the earliest medical record of neck complaints.
The applicant submitted that, given his statement, Dr Matrook would have taken a history of neck pain, but it may be inferred that the relationship between her and the applicant was not as close as it could have been.
The applicant submitted that Dr Matrook was focused on his right shoulder. She jumped to the conclusion that it was not a new injury, but a recurrence. She recorded an aggravation of his elbow, but not the actual injury that occurred. She spoke to the wrong employer, still believing there was an aggravation of the 2017 injury.
The applicant submitted there is good reason for the authorities that hold that one cannot rely heavily on GPs’ notes. They are helpful if they make positive findings but cannot be relied on to the extent that they omit findings.
The applicant submitted that Dr Lim spent time with him and obtained a full and proper history. The complaints of cervical problems were not rejected by anybody until Dr Doig on 14 December 2021.
The applicant submitted that Dr Haig recorded that he was poorly articulate. Dr Haig did not take a history of the right elbow injury in 2017. Dr Haig did not review the documents or give him a chance to provide a proper history. It appeared he relied on Dr Doig’s report, without looking at the complaints that were established in 2023 when he saw the applicant.
The applicant submitted that Dr Haig had not commented on the mechanism of injury that he was kicked by a sheep. There were two unsatisfactory reports by Dr Haig. He firstly did not take a proper history, and when he was given the proper history, he did not say whether he had changed his opinion, other than to refer to Dr Doig’s report.
The applicant submitted that, unlike some cases, the absence of complaints over time did not lead to the inference that there was no injury. He had problems with articulation. He “drip fed” his symptoms in accordance with what was bothering him at the time, his elbow, his shoulder, and his neck.
The applicant submitted that Dr Calvache-Rubio had taken the time and effort to correlate the injury with the symptoms. The mechanism of injury was the sort that a lay person with a modicum of medical experience would say would probably hurt his neck. This was not wildly improbable, and the applicant submitted it was accepted to some extent by the respondent, referring to Dr Tang’s evidence.
The applicant conceded that the respondent was correct that there was no contemporaneous record of injury to his neck between the date of the injury and Dr Lim’s record 12 months later but submitted there had been a consistency of complaints since then. This was attributable to the doctors allowing him to tell his story and properly recording the history.

In reply to the respondent, the applicant submitted that his complaint about Dr Haig’s evidence was not based on the absence of the West Wyalong Medical Centre records but on the fact that Dr Haig paid scant attention to the documents he had.
The applicant submitted that Dr Haig should have addressed the differing accounts as to the mechanism of injury with the applicant before giving his opinion.
The applicant submitted that, while it was late in the piece, Dr Calvache-Rubio’s report dated 8 April 2022 is very helpful. The applicant relied on the history taken by Dr Lim in 2021. It was not necessarily correct that there were no complaints, but there were no records of complaints.
The applicant submitted that it would not be expected that Dr Howard would refer to the problems with his neck, as he specialises in shoulders, hips, and knees. Dr Lim’s referral to Dr Howard did not ask him to look at the applicant’s neck.
The applicant submitted that the detailed history that was first taken was not that far removed from the date of the injury, when account is taken of his difficulty with the articulation of his complaints, and that his treating doctors were only concerned with what they needed to know to deal with his problems. It was only later that the histories became important, when the matter became contentious.
The applicant submitted that the absence of complaints recorded by his initial GP would not cause me the concern it otherwise might, because of the detailed explanation of the medical picture by Dr Lim as early as 2021. The applicant’s psychological problems may also have affected his ability to communicate.
The applicant finally submitted that there is a “gap”, but it is not fatal.

Respondent

The respondent submitted that Dr Haig did not have the records of West Wyalong Medical Centre when he provided his report. The onus was on the applicant to establish a frank injury to his cervical spine in January 2020.
The respondent submitted that it is not just the case that doctors did not take a proper history, but there are various inconsistencies in recording the mechanism of injury.
The respondent submitted that the inference cannot be drawn that there was a difficulty in the applicant’s relationship with Dr Matrook for the entire time since the injury occurred in January 2020.
The respondent submitted that on 14 January 2020, Dr Matrook recorded complaints of pain in the elbow and shoulder. There is no record relating to injury to the cervical spine. It can be inferred that it was not reported. The applicant had conceded that the first record of injury to the cervical spine was not until February 2021.
The respondent submitted there were 17 consultations with the West Wyalong Medical Centre, but no complaint about the applicant’s neck was recorded. One would expect that it would be. Other problems were recorded.
The respondent submitted that COCs and Centrelink certificates did not refer to injury to the applicant’s neck before January 2021.
The respondent submitted that if the applicant was experiencing issues with his neck, it may be inferred that he would have told Dr Howard so this could be investigated. There was no investigation because there was no complaint.
The respondent submitted that the applicant first reported symptoms in his neck to Dr Lim on 29 January 2021, with a different mechanism of injury, which was not reported to his GP almost a year prior.
The respondent submitted that Dr Lim did not deal with the differing mechanisms of injury despite the different histories. This was important, as it fed into the findings of the mechanism of injury being a kick to the neck, and that pain in the neck had been ongoing and continuous since the injury.
The respondent submitted that Dr Calvache-Rubio had copied the same history, which was incorrect. It was not in the records, and not what the applicant said.
The respondent submitted that I would not be satisfied to the point of actual persuasion as to the mechanism of injury. Dr Calvache-Rubio did not deal with the lack of contemporaneous complaints, as he was not informed of it, and this infects his and Dr Lim’s opinions.
The respondent submitted that the issue is whether there was a frank injury on
7 January 2020 to the applicant’s cervical spine, including the mechanism of injury, which is important because it affects the opinions on causation.
The respondent submitted that Dr Tang’s opinion that it was “still possible” that there was a causal link to the complaint of pain in the applicant’s cervical spine and the injury was not as strong as that of Drs Lim and Calvache-Rubio, as he had recorded a different mechanism of injury.
The respondent referred to the history of the mechanism of injury recorded by Dr Singh. It submitted this was a very specific mechanism of injury, that must have been taken from the applicant by that specialist, who “took the time” to do so. There was a different mechanism of injury recorded by the physiotherapist, Mr Burge, on 25 June 2020.
The respondent submitted that the history of the mechanism of injury recorded by Drs Doig, Tang and Singh was consistent. There was no kick, and definitely not two kicks, including to the applicant’s face.
The respondent submitted that Dr Haig’s recorded history that the applicant was dragging a sheep when his arm went limp was also consistent with that of Drs Doig, Tang and Singh. He had considered the differing mechanisms of injury in his supplementary report and confirmed his opinion.
The respondent submitted that Dr Gehr did not deal with the various mechanisms of injury and did not set out his path of reasoning. In his supplementary report, he still did not deal with the delayed onset of complaints and the various mechanisms of injury. He provided his opinion without any reasoning or detail.
The respondent submitted there may be no reason to doubt the applicant’s credibility, but there is doubt about his evidence. His first statement was completed with the assistance of his legal advisers four years later. The respondent referred to Onassis v Vergottis.[1]
[1] [1968] 2 Lloyds Rep 403 (Onassis).
The respondent conceded that caution must be exercised with respect to clinical records, but submitted they were relevant when balancing the evidence. It referred to Watson v Foxman,[2] with respect to the fallibility of memory, which it submitted applied to the applicant’s statements.
[2] [1995] NSWCA 497; (1995) 49 NSWLR 315 (Watson).
The respondent submitted that Drs Doig and Haig had given due consideration to causation and appropriate reasons.
The respondent submitted that Dr Gehr had not complied with regulation 73 of the Personal Injury Commission Rules 2021. There was not a “fair climate” for his opinion. More than an ipse dixit was required. Dr Gehr did not set out the path of his reasoning, there was none, and he failed to consider the differing mechanisms of injury and lack of contemporaneous complaints.

SUMMARY

The applicant claims that, in addition to the accepted injuries to his right elbow and right shoulder on 7 January 2020, he also sustained an injury to his cervical spine. He does not rely on any allegation of a consequential condition. The applicant of course bears the onus.
Several different histories as to what occurred when the applicant was injured on
7 January 2020 have been recorded. Some of the descriptions are not mutually exclusive. They include that the applicant was engaged in fencing work (which he was not); he was lifting sheep; he was kicked in the right bicep and face; he was dragging a sheep from a pen when he felt a snap in his right upper arm; he was hit by a sheep; he was holding down a ram for shearing; and he was dragging a sheep out with his arms extended.
None of the doctors who examined the applicant before Dr Lim in February 2021, over a year after the injury, recorded any history of the applicant being kicked by the sheep, either in the face or anywhere else.
The applicant has also given evidence that, as a result of the sudden impact of the kick/s, he had pain throughout his upper body, including his neck, but “did not think much of it”, because of the pain in his right arm and shoulder. It was Dr Lim who “explained” to him that he had jolted and moved his neck suddenly, which caused the injury.
The applicant submitted that he had “drip-fed” his symptoms to various practitioners, but when he consulted Dr Lim, that doctor obtained a full and proper history. He also submitted that Dr Calvache-Rubio took the time and effort to correlate the injury with his symptoms.
I do not accept that the applicant drip-fed his symptoms. Dr Matrook recorded at her first consultation that the applicant complained of pain in the elbow, up to the shoulder and down to the wrist. On 24 April 2020, she recorded that he had a shoulder injury.
I am mindful that caution must be exercised in placing reliance on clinical records. As Santow JA observed in Nominal Defendant v Clancy:[3]
“While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive…clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor is likely to have been written with more deliberate consideration than rough notes.”
[3] [2007] NSWCA 349, at [54]-[55].
These observations reflect the comments in Davis v Council of the City of Wagga Wagga[4] that “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury” (at [35] per Mason P, Beazley and Tobias JJA agreeing).
[4] [2004] NSWCA 34.
This does not mean that I cannot place weight on the contents of the clinical notes. The issue is just how much weight is to be placed on the evidence. In King v Collins,[5] Basten JA (Mason P and Santow JA agreeing) said:
“There is no doubt that his Honour was entitled to place weight on the fact that the written records did not demonstrate any indication that the accident was caused by movement in the step when the plaintiff trod on it. However, some care must be taken in attributing too much weight to such documents” (at [34]).
[5] [2007] NSWCA 122.
Dr Matrook’s clinical records contain no reference to injury to, or complaints about, the applicant’s neck or cervical spine. The COCs and Centrelink certificates she issued did not include any reference to injury to the applicant’s neck or cervical spine. She referred the applicant for investigations of his right upper limb, but not of his cervical spine.
The applicant was critical of Dr Matrook, and also submitted it may be inferred that she would have taken a history of neck pain, and his relationship with her was not close.
The applicant has given no evidence that, for example, he told Dr Matrook about injury to, or symptoms in, his neck, and she failed to pay attention to him or to record them. He has not given any evidence that their relationship was strained before Dr Matrook recorded on 13 January 2021 that he had been rude to her, and she advised him to consult another GP.
As regards the applicant “drip-feeding” his symptoms, Dr Howard reported to EML that when he first saw the applicant, he had an obvious rupture of his distal biceps, but also complained of pain around his shoulder.
It is true that Dr Howard is described as a hip, knee, and shoulder surgeon. However, it is unlikely in my view that the applicant compartmentalised Dr Howard’s specialty to the extent that he would not tell Dr Howard about symptoms in his neck. Dr Howard recorded no such complaints.
Dr Doig was requested to consider whether the applicant had sustained injury to his neck and examine the applicant’s neck because the COCs had recently included “cervical spine strain”. He corrected the history of injury provided by EML and found no evidence of injury to the applicant’s cervical spine.
Dr Singh recorded that it was after the second operation that the applicant had a lot of neck and arm pain, ongoing pins and needles, and sciatica. He nonetheless reported to Dr Calvache-Rubio that the applicant injured his lower back and neck while he was holding down a ram.
Dr Jayamanne, who performed the applicant’s neurophysiological study, recorded the onset of neck pain after his shoulder surgery.
The applicant submitted that Dr Calvache-Rubio’s evidence should be accepted as he had taken time to correlate the injury with the symptoms.
In his criticism of Dr Doig’s report, Dr Calvache-Rubio stated that the applicant had been complaining of neck pain since the incident. There is no contemporaneous evidence that that was the case. Dr Calvache-Rubio also appears to have merely cut and pasted what Dr Lim had recorded in his initial consultation.
The applicant, in his evidence, was also critical of Dr Haig. Dr Haig has addressed this in his supplementary report. I do not accept that he simply accepted Dr Doig’s opinion.
At its highest, Dr Tang’s opinion was that, based on the mechanism of injury, there was a possible causal link with symptoms in the applicant’s cervical spine. However, he reported that he asked the applicant to provide a history of the mechanism of the injury, and it did not include being kicked by the sheep, in the face or at all.
I have found little assistance in Dr Gehr’s reports.
Dr Gehr recorded that the applicant was kicked by a sheep, injuring his right elbow and rotator cuff. He referred to the reports of the applicant’s treating doctors having documented clearly the onset of cervical spine pain from the time of the accident. That is not the case. I agree with the respondent’s submission that Dr Gehr did not set out his path of reasoning.
Dr Gehr based his opinion on the history he obtained (which he has not recorded as referring at all to the applicant’s neck), and the documents provided, presumably those of Drs Lim and Calvache-Rubio.
The applicant has been described by Dr Haig as poorly articulate. I accept the respondent’s submission that there may be no reason to doubt his credibility, but there may be reason to doubt his evidence. It appears that there may be an element of reconstruction as he attempted to find a reason for his neck pain. The various differing histories recorded about the timing of its onset have been discussed above.
In Onassis, Lord Pearce said:
“…Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
In Watson, McLelland CJ in Eq emphasised the fallibility of human memory, for a variety of reasons, when considering what was said in an earlier conversation. His Honour observed:
“…ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said.”
In Nguyen v Cosmopolitan Homes,[6] the Court of Appeal (McDougall J; McColl JA and Bell JA agreeing), said (at [55]):
“The position may be summarised as follows:
(1)A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found;
and
(4)A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[6] [2008] NSWCA 246.
For the above reasons, I do not feel a sense of actual persuasion, and do not find on the balance of probabilities, that the applicant sustained injury to his cervical spine on
7 January 2020.
The orders are as set out in the Certificate of Determination.

[2024] NSWPIC 466

23 August 2024