Mannix v Coles Supermarkets Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mannix v Coles Supermarkets Australia Pty Ltd [2024] NSWPIC 559
APPLICANT:	Malcolm Mannix
RESPONDENT:	Coles Supermarkets Australia Pty Limited
MEMBER:	John Turner
DATE OF DECISION:	9 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; consequential condition; sections 33, 37, 37 and 60; accepted injury to the left thumb; accepted consequential condition of the left shoulder; disputed consequential condition of the cervical spine; claim for weekly compensation pursuant to sections 36 and 37; claim for costs of and incidental to cervical spine surgery recommended by Dr Lim; dispute as to incapacity pursuant to section 33; dispute pursuant to section 60 as to whether the cervical spine surgery proposed by Dr Lim is reasonably necessary due to injury; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Ltd, State of New South Wales v Bishop, Kooragang Cement Pty Ltd v Bates, Briginshaw v Briginshaw, Mason v Demasi and Murphy v Allity Management Services Pty Ltd considered and applied; Held – the applicant has sustained a consequential condition of the cervical spine as a result of the accepted injury to the left thumb; pursuant to section 60 the proposed cervical spine surgery being a two level ACDF of C5/6 and C6/7 proposed by Dr Lim is reasonably necessary as a result of an injury; the applicant had no current work capacity from 27 April 2022 to 30 June 2024.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant has sustained a consequential condition of the cervical spine as a result of the accepted injury to the left thumb. 2. That pursuant to s 60 of the Workers Compensation Act 1987 the proposed cervical spine surgery being a two level ACDF of C5/6 and C6/7 proposed by Dr Lim is reasonably necessary as a result of an injury. 3. The respondent is to pay the costs of and associated with the cervical surgery proposed by Dr Lim being a two level ACDF of C5/6 and C6/7. 4. That the applicant had no current work capacity from 27 April 2022 to 30 June 2024. 5. There is an award for the applicant for weekly benefits as follows: (a) $1,159 per week from 27 April 2022 to 26 July 2022 pursuant to s 36 of the Workers Compensation Act 1987; (b) $976 per week from 27 July 2022 to 30 September 2022 pursuant to s 37 of the Workers Compensation Act 1987; (c) $1,008 per week from 1 October 2022 to 31 March 2023 pursuant to s 37 of the Workers Compensation Act 1987; (d) $1,048 per week from 1 April 2023 to 30 September 2023 pursuant to s 37 of the Workers Compensation Act 1987; (e) $1,072 per week from 1 October 2023 to 31 March 2024 pursuant to s 37 of the Workers Compensation Act 1987, and (f) $1,088 per week from 1 April 2024 to 30 June 2024 pursuant to s 37 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Malcolm Mannix, the applicant, was employed by Coles Supermarkets Australia Pty Limited, the respondent, as a supervisor/cleaner.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained injury to his left thumb on the deemed date of
29 April 2021 due to the nature and conditions of his employment with the respondent. The applicant also alleges that he has suffered consequential conditions of his left shoulder and cervical spine due to undergoing surgery on his left hand for his left thumb injury on
27 April 2022.
The applicant claims weekly compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (1987 Act) from 27 April 2022 to 30 June 2024 as well as medical, hospital and treatment expenses pursuant to s 60 of the 1987 Act.
The respondent has commenced payments of weekly compensation to the applicant from
1 July 2024. The parties have agreed the applicant’s pre-injury average weekly earnings (PIAWE) at $1,190 unindexed.
The respondent has accepted liability for injury to the left thumb as well as for the consequential condition of the left shoulder.
During the arbitration hearing the respondent confirmed that the only medical expense in dispute is cervical spine surgery proposed by Dr Lim.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    the respondent disputes that the applicant has sustained consequential condition of the cervical spine;
(b)    the respondent disputes that the applicant has suffered incapacity for work during the period for which weekly compensation is being claimed, and
(c)    the respondent disputes that the cervical spine surgery proposed by Dr Lim, being a two level ACDF of C5/6 and C6/7, is reasonably necessary as a result of an injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
16 September 2024. Mr James McEnaney, counsel, instructed by Mr Dilan Kasturi, solicitor, appeared for the applicant, who was present. Ms Lyn Goodman, counsel, appeared for the respondent, instructed by Mr Glenn Dolan, solicitor. The proceedings were conducted on MS TEAMS. 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 and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to an Application to Admit Late Documents (AALD) filed on behalf of the applicant and dated 10 September 2024.

Oral evidence

Neither party sought leave to adduce oral evidence.

FINDINGS AND REASONS

There is no dispute that the applicant sustained injury to his left thumb. There is also no dispute that the applicant has sustained a consequential condition of the left shoulder.

Consequential condition of the cervical spine

The applicant alleges that he has suffered a consequential condition of his cervical spine as a result of undergoing surgery to his left hand on 27 April 2022 at the hands of Dr Darrin Marshall, orthopaedic surgeon.
The applicant submits that he had no problems with his neck prior to undergoing the surgery to his left hand on 27 April 2022.
There is no dispute that the applicant sustained injury to his left thumb. There is also no dispute that the surgery performed to the applicant’s left hand on 27 April 2022 was to treat the injured left thumb.
To establish a consequential condition of the cervical spine the applicant has to prove on the balance of probabilities that the cervical spine symptoms and restrictions have resulted from the accepted injury sustained to the left thumb. In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [100] (Brennan) Deputy President Snell observed that it is not necessary for a worker alleging a consequential 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.
Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) involved a compensable injury to the right shoulder which allegedly resulted in a consequential condition of the left shoulder. In Moon Deputy President Roche at [45] stated:
“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…”
The question whether a consequential condition has been sustained is a question of fact: State of New South Wales v Bishop [2014] NSWCA 354 (Bishop). Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
The applicant bears the onus of establishing on the balance of probabilities that he has developed a consequential condition as a result of the accepted injury to his left thumb. For a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact: see Briginshaw v Briginshaw [1938] HCA 34; 91938) 60 CLR 336 (Briginshaw).
It was submitted by Mr McEnaney on behalf of the applicant that the applicant’s evidence is concise and consistent with the applicant having sustained an injury to his neck at the time of the surgery to his left hand on 27 April 2022 as well as being consistent with the contemporaneous medical records. In Mr McEnaney’s submission an inference should be drawn that something happened which caused injury to the applicant’s neck during the surgery to the applicant’s left hand on 27 April 2022.
I am of the view that the evidence is consistent with the applicant having sustained injury to his neck on 27 April 2022 during the surgery to his left hand for his accepted work related left thumb injury. I am of this view for the following reasons.
It is the applicant’s evidence that he had not had any symptoms or impairment of his shoulder or neck prior to undergoing the surgery on 27 April 2022. The clinical records do not indicate that the applicant made any complaints of any significance in respect to his neck or left shoulder prior to the said surgery. I therefore accept that the applicant’s neck and left shoulder were not symptomatic prior to the surgery on 27 April 2022.
It is the applicant’s evidence that on 27 April 2022 he underwent left thumb joint CMC replacement surgery performed by Dr Marshall at the Coffs Harbour Hospital. It is the applicant’s evidence at [45] of his statement that he was admitted to hospital overnight following the surgery but was unable to sleep due to pain in his “left hand, wrist and shoulder and up to my neck following the surgery.”
In the respondent’s submission the applicant’s evidence does not support that he had sustained a neck injury as it is the applicant’s evidence that he had pain “up to” his neck rather than originating from his neck. I do not accept the respondent’s submission. The applicant does not refer to the pain as radiating from his left hand up into his neck. Rather the applicant identifies the areas in which he had pain commencing, in a logical anatomical sequence given that the hand was the site of the subject surgery, with the left hand and moving up the arm. Furthermore, even if the applicant had stated that the pain was referred from elsewhere into his neck the applicant is not a medical expert, and it would be necessary to consider such a statement against the rest of the evidence.
It is the applicant’s evidence that the day following the surgery he attempted to put his left hand on his hip, behind his back and above his head but these movements caused him a lot of pain in his left shoulder and neck. It is the applicant’s evidence that at the time he put the pain down to the operation on his hand.
The discharge referral notes from the Coffs Harbour health campus[1] confirm that the applicant was admitted on 27 April 2022 and discharged on 28 April 2022 following left thumb carpometocarpal joint replacement performed by Dr Darrin Marshall. The notes do not refer to any complaints of shoulder and/or neck pain following the performance of the surgical procedure.
[1] ARD pp 54-56.
In the respondent’s submission the discharge referral notes are inconsistent with the applicant’s evidence that he had neck and left shoulder symptoms directly following the surgery. Whilst it is true that the discharge referral notes do not refer to any neck or left shoulder complaints, the notes are brief and primarily deal with the surgical procedure performed and the post operative instructions. Apart from noting that the perioperative and postoperative course progressed without complication there is no detail description of the applicant’s post operative status or complaints. I am of the view that for present purposes the discharge referral notes are of little assistance.
On 29 April 2022 the applicant attended on his general practitioner (GP) Dr Samuel Bright.[2] The clinical record of the attendance records that the applicant had undergone the hand surgery and that he was in a “POP cast”.
[2] ARD p 215.
The clinical record contains no reference to either the left shoulder or neck which in the respondent’s submission is supportive of the applicant having not sustained any injury to his neck at the time of the hand surgery. The clinical record however is extremely brief simply noting that the surgery had occurred, and that the applicant was in a cast.
It is the applicant’s evidence that approximately seven days after the surgery he told a female doctor who worked with Dr Marshall that he was having difficulty moving his left shoulder and neck. I have been unable to locate any clinical record of this attendance. However, the complete clinical notes of Dr Marshall do not appear to be in evidence.
On 12 May 2022 the applicant attended on the GP, Dr Kristine Brent.[3] The clinical record of the attendance notes that the hand surgery had been performed but again contains no reference to the left shoulder or neck. The clinical record records that the applicant was to attend the specialist the following week however there does not appear to be any record from the attendance on the specialist in evidence, if it occurred.
[3] ARD p 215.
In the respondent’s submission the clinical record from the 12 May 2022 attendance on
Dr Brent is evidence that the applicant’s neck had not been injured during the hand surgery as no complaint of the neck or left shoulder symptoms was recorded.
It is the applicant’s evidence that he also told the physiotherapists that he was seeing for his hand injury that he was having shoulder and neck pain. It is the applicant’s evidence that he was told by the physiotherapists that they were only able to treat his hand. It is the applicant’s evidence that the physiotherapist eventually told him to go back to his previous physiotherapist, Natalie Bond, about his hand, shoulder and neck.
I have been unable to locate in the evidence any physiotherapy records following the hand surgery on 27 April 2022 and prior to Ms Natalie Bond reporting on the applicant on
13 September 2022.
It is the applicant’s evidence that he went back to Ms Bond and was unable to put his hand on his hip, behind his back or above his shoulder.
It is the applicant’s evidence that approximately six weeks after the hand surgery he attended on Dr Marshall for post operation review at which time he told the doctor about his shoulder problem. It is the applicant’s evidence that Dr Marshall told him not to worry about it and that it would be fine.
On 8 June 2022[4] Dr Marshall reported to Dr Bright that he had reviewed the applicant that morning at which time the applicant had complained that his hand was still quite sore and that his wrist, thumb and elbow were stiff. Dr Marshall reported that he explained to the applicant that he was making good progress from the surgery. Dr Marshall reported that if anything it was the wrist that appeared the sorest, particularly when the applicant tried to flex it.
[4] ARD p 237.
Whilst it would appear that the applicant had seen Dr Marshall prior to 8 June 2022 following the hand surgery with Dr Brent recording on 12 May 2022 that the applicant was to attend on the specialist the following week, the report of Dr Marshall is the first clinical record in evidence of the applicant attending on the specialist following the hand surgery. Whilst the report does not refer to the neck or left shoulder it does record that the symptoms complained of by the applicant extended beyond the left hand with the wrist and elbow being referred to even though the doctor observed that the applicant was making good progress post surgery. Significantly this is the first available report from the specialist following the surgery and also the first clinical record of any detail in respect to the applicant’s condition following the surgery.
On 17 June 2022 the applicant attended on Dr Bright.[5] The clinical record of the attendance records that the applicant could not laterally rotate his wrist and couldn’t put his hand above his head or behind his back due to pain.
[5] ARD p 216.
In my view the clinical record of 17 June 2022 is consistent with the applicant’s evidence. Whilst the record does not refer directly to left shoulder or neck pain the record does record that the applicant could not laterally rotate his wrist or put his hand above his head or behind his back due to pain which is consistent with the applicant’s evidence as to the restrictions of movement he experienced directly following the surgery. It also provides additional information to that recorded by Dr Marshall on 8 June 2022 as to the nature of the restrictions of movement which the applicant was experiencing in his left wrist and elbow. Whilst the clinical record does not refer to the neck or left shoulder the clinical record does not record the regions in which the applicant was experiencing the pain. The clinical record would also appear to indicate that the applicant was attending or was to attend physiotherapy with the clinical record referring to “CHHC physio”.
Neither Dr Marshall on 8 June 2022 or Dr Bright on 17 June 2022 record a history as to when the symptoms beyond those related to the hand commenced.
On 16 August 2022 the applicant again attended on Dr Bright.[6] The clinical record of the attendance records that the applicant had pain spreading from his left thumb to his left upper arm, electric pain radiating up the forearm which had “worsened over weeks” and that movement was restricted after surgery.
[6] ARD pp 216-217.
On examination Dr Bright observed restricted internal rotation of the wrist. The doctor also noted altered sensation.
Whilst the clinical record does not refer directly to the left shoulder Dr Bright appears to have identified the left shoulder as a source of symptoms with the recorded reasons for the visit including bursitis.
It was submitted on behalf of the respondent that the clinical record records that the pain was radiating up the arm, not down from the neck. Whilst the clinical record does refer to the pain radiating or spreading up the left upper limb, I am of the view that this is inconsistent with the reference to bursitis.
It was submitted on behalf of the applicant that the reference to “electric” pain radiating up the forearm is a reference to neurological symptoms. I do not accept that such a conclusion can be drawn without expert medical opinion as to what could cause such symptoms.
On 16 August 2022 Dr Bright referred the applicant to the physiotherapist, Ms Natalie Bond.[7] The referral records that the applicant had left shoulder bursitis and left hand weakness with loss of sensation. Dr Bright advises that he had ordered an ultrasound of the left shoulder.
[7] ARD p 299.
The referral to Ms Bond is in my view consistent with the applicant’s evidence that he was referred to Ms Bond when the physiotherapists who had been treating his hand post surgery declined to assist with the non-hand related symptoms.
On 13 September 2022 Ms Natalie Bond, physiotherapist, reported to Dr Bright[8] that it was suspected that the shoulder pain was related to “MN irritation due to feeling of heaviness.” The report of Ms Bond is the first physiotherapy clinical record post the hand surgery in evidence. I take “MN” to be a reference to median nerve.
[8] ARD pp 238-239.

The report of Ms Bond contains the first direct reference to left shoulder pain even though it would appear that the applicant had complained of left shoulder pain prior to this point with a diagnosis of left shoulder bursitis having previously been made. It also contains the first reference to potential nerve related symptoms even though unrelated to the neck.
On 23 September 2022 the applicant once again attended on Dr Bright.[9] The clinical record of the attendance notes potential nerve irritation. The clinical record does not however identify the source of the nerve irritation.
[9] ARD pp 217-218.
On 4 October 2022 Tom Paff, physiotherapist at Coffs Coast Sports Physiotherapy, reported to Dr Bright[10] that the applicant had ongoing left shoulder pain and restriction of movement since his left thumb surgery in April. Mr Paff reported that he had reviewed the shoulder on 30 September 2022.
[10] ARD pp 241-242.
Mr Paff recorded that the applicant had reported that a couple of days after the surgery he had tried to scratch his hip but was unable to due to left shoulder restriction. The applicant reported that over the past 5-6 months there had been no change in his shoulder movement. The applicant reported ongoing pain in the shoulder going down the lateral arm. The applicant did not report any injury to his left shoulder.
It is not until 17 June 2022 that the clinical records record that the applicant could not laterally rotate his wrist and couldn’t put his hand above his head or behind his back due to pain, and it is not until 16 August 2022 that a history is recorded that the restriction of movement had been present since the surgery to his left thumb as well as that there was pain spreading from his left thumb to his left upper arm and altered sensation as well as left hand weakness and loss of sensation and a diagnosis of left shoulder bursitis.
However, the applicant did report stiffness of his left wrist and elbow to Dr Marshall on
8 June 2022 with Dr Marshall observing that the applicant was recovering well from the surgery and that the left wrist appeared to be the sorest. Whilst Dr Marshall did not record any mention of the neck or left shoulder the doctor’s area of concern was the left hand and the surgery which had been performed. There is no history of these symptoms or restrictions prior to the surgery on 27 April 2022. The report of Dr Marshall of 8 June 2022 is the first available specialist report following the hand surgery and the first clinical record of any detail in respect to the applicant’s condition following the surgery.
It is not until 16 August 2022 that any history is recorded in the clinical records as to the onset of the symptoms beyond those affecting the left hand. The history recorded at that time is consistent with the applicant’s evidence that the symptoms commenced following the left hand surgery.
It is not until 4 October 2022 that a detailed history is taken in respect to the onset of the symptoms with the physiotherapist, Mr Paff, recording that the onset of the symptoms occurred post surgery. A history which is largely consistent with the applicant’s evidence.
It is the applicant’s evidence that he initially put his restriction of movement of his left upper limb and his neck and left shoulder pain down to the surgery to his left hand. It is the applicant’s evidence that seven days after the surgery he reported the neck and left shoulder symptoms to a doctor who worked for Dr Marshall, that he also reported the symptoms to the physiotherapists he was seeing for his hand and that he told Dr Marshall approximately six weeks after the surgery about his shoulder problem. I have been unable to locate a clinical record from any doctor on which the applicant attended seven days after the surgery. The complete clinical records of Dr Marshall do not appear to be in evidence before me. I have also been unable to locate any record of any physiotherapy attendances after the surgery and prior to the report of Ms Bond of 13 September 2022 however there is some indication in the clinical records that the applicant did attend physiotherapy following the hand surgery and prior to attending on Ms Bond.
The failure of the clinical records to record a history of the applicant’s complaints beyond his left hand prior to 8 June 2022 and details of the onset of the symptoms is not completely unexpected. The clinical records appear to be incomplete and the focus was on the left hand injury and surgery. Furthermore, there was no history of any injury to the left shoulder and neck and the applicant would have been unaware of any incident during the surgery having been sedated at the time.
As Basten JA in Mason v Demasi [2009] NSWCA 227 (Demasi) observed inconsistencies between a party’s evidence and medical histories in clinical notes should be treated with caution stating:
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)     the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)     the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.” (at [2])
I am of the view that the weight of the evidence is consistent with the applicant developing the left upper limb and shoulder symptoms directly following the surgery to the left hand on 27 April 2022.
It is the applicant’s evidence that on 16 October 2022 he returned to Dr Meads with loss of strength in his hand and pain and stiffness in his left shoulder and neck.
The applicant had attended on Dr Bryce Meads, hand surgeon, prior to undergoing the hand surgery on 27 April 2022. The consultation with Dr Meads appears to have in fact taken place on 16 November 2022 with the applicant contacting Dr Bright’s rooms on
[11] ARD p 219.
26 October 2022 to let the doctor know that he had made an appointment with Dr Mead for 16 November 2022.[11]
On 11 November 2022 the applicant attended on Dr Bright.[12] The clinical record of the attendance records that the applicant was in a “fair bit of pain” and that he was having difficulty putting clothes on the clothesline.
[12] ARD p 219.
Dr Meads reported to Dr Bright on 16 November 2022[13] that the applicant’s left shoulder was painful, very stiff with a loss of strength. Ther doctor noted that an ultrasound of the shoulder demonstrated some minor subacromial bursitis. The doctor observed that the applicant was unable to internally rotate the shoulder and had reduced abduction. The doctor was of the opinion that the applicant had developed a superficial radial neuritis over the radial side of the thumb following the surgery to his hand.
[13] ARD pp 9-10.
On examination the doctor observed a restricted range of motion of the “shoulders” however the doctor only appears to be referring to one shoulder as he compared the internal rotation to the base of the spine with the opposite shoulder.
Dr Meads was of the opinion that the applicant had either subacromial bursitis or a frozen shoulder and gave the applicant a referral for a cortisone injection.
The doctor also felt that the applicant had a carpal tunnel syndrome which would have accounted for the swelling in his hands and the abnormal sensation in his fingers and inability to flex his fingers. The doctor recommended nerve conduction studies to investigate whether the applicant had carpal tunnel syndrome contributing to his symptoms.
The doctor recorded that the applicant had problems with his left shoulder since the hand surgery.
On 14 December 2022 Dr Meads reported to Dr Bright[14] that nerve conduction studies showed slight carpal tunnel syndrome on the right but relevantly none on the left. Dr Meads noted that the applicant was still very troubled by pain down his left arm extending from the shoulder. A cortisone injection into the shoulder had worked for two days before the pain recurred.
[14] ARD p 147.
Dr Meads felt that the applicant should seek an opinion from a shoulder surgeon regarding the left shoulder pain.
On 14 December 2022 Dr Meads referred the applicant to Dr Benjamin East, shoulder and elbow specialist.[15] In the referral Dr Meads noted that the applicant had undergone a trapeziectomy which had “not gone as well as anticipated” with the applicant developing pain in his left shoulder which radiated down to his palm. The applicant also had a reduced range of motion and Dr Meads was concerned that the applicant may have a frozen shoulder. The applicant had not responded to subacromial bursa cortisone injection. Dr Meads planned to perform a revision trapeziectomy once he had some direction in respect to the shoulder.
[15] ARD p 90.
On 27 February 2023 Dr East reported to Dr Meads[16] that the applicant had presented for review of his left shoulder. Dr East reported that he had ordered an MRI of the left shoulder as he was unsure of the diagnosis as whilst the applicant had some features of frozen shoulder Dr East was uncertain as to whether the applicant had another structural issue which needed to be excluded.
[16] ARD p 98.
Dr East reported that the applicant’s history was slightly unusual. The applicant had reported that he awoke following surgery to his hand and had difficulty performing internal rotation behind his back. The applicant reported that he had normal internal rotation prior to the surgical procedure. Dr East reported that it is very unusual that the applicant was not able to internally rotate directly after the procedure. The applicant reported that the pain had since got gradually worse although the range of motion had remained very similar. The applicant had a subacromial steroid injection without benefit and had physiotherapy.
Dr East was unsure as to the reason for the applicant’s shoulder pain. In the doctor’s opinion the applicant’s presentation did not fit standardly within a presentation for frozen shoulder and Dr East wondered if there was additional pathology.
Dr East is the first to question whether there may be other additional pathology, beyond the left shoulder contributing to the applicant’s symptom complex, observing that whilst there were features of a frozen shoulder the applicant’s presentation did not fit standardly within a presentation for frozen shoulder. Dr East, as an expert shoulder surgeon, was the best qualified medical expert to provide an opinion as to the shoulder condition and as such it is not surprising that he was the first to consider the possibility that there maybe other pathology contributing to the symptom complex.
On 6 March 2023 Dr Meads reported[17] that there was no definitive diagnosis in respect to the left shoulder. Dr Meads noted that the applicant had altered sensation in his hands in both little and index fingers.
[17] ARD p 152.
As previously noted Dr Bright had recorded in the referral to Ms Bond on 16 August 2022 that the applicant had complained of left hand weakness and loss of sensation.
On 24 March 2023 Dr East reported to Dr Meads[18] following the obtaining of the results of an MRI. Dr East reported that there was no structural cause for the shoulder pain. Putting the shoulder through a repeat examination Dr East was convinced that the applicant had lost the passive range of motion and the applicant’s diagnosis was consistent with an early frozen shoulder in the early phase of freezing.
[18] ARD p 103.
An operation record dated 10 May 2023[19] records that Dr Meads performed a revision trapeziectomy on the left thumb.
[19] ARD p 153
On 27 June 2023 Dr East reported to Dr Max Mollenkopf [20] that the applicant had presented that day following an injection to his left shoulder. Dr East reported that the applicant continued to have left shoulder stiffness and pain.
[20] ARD p 105.
Dr East reported that he was still a little unsure as to why the applicant had a loss of passive range of motion and weakness in the shoulder and as a result ordered nerve conduction studies and an MRI of the cervical spine to investigate this.
It is at this point that the attention of the treating doctors first turns to the cervical spine to explain the applicant’s symptoms.
An MRI scan of the cervical spine was performed on 8 July 2023.[21] The report in respect to the MRI by Dr Phillip Janke identified spondylotic changes resulting in bilateral C6 and C7 foraminal stenosis. The reports clinical history records that the applicant had left hand weakness post surgery.
[21] ARD p 70.
On 26 July 2023 nerve conduction studies were performed with Dr Venkatesh Krishnamurthy reporting.[22]
[22] ARD pp 107-108.
On 21 August 2023 Dr East reported to Dr Meads[23] that the applicant had presented to his rooms following his cervical MRI. Dr Meads reported that the MRI demonstrated quite significant osteophytes and potential compression of the C5/6 and C6/7 foramen. Dr East was of the opinion that the applicant on examination that day certainly had some features of radiculopathy, particularly in the left arm which corresponded to his shoulder pain. Given that the MRI of the shoulder was quite normal and the applicant complained predominantly of pain and heaviness in the arm. Dr East thought that it would be worth getting a spine opinion before pursuing any further other alternative options. Dr East therefore referred the applicant to Dr Patrick Lim for an opinion.
[23] ARD p 110.
At this point, following the MRI, Dr East notes the features of radiculopathy and therefore the involvement of the cervical spine in the applicant’s symptom complex.
Dr Patrick Lim, orthopaedic surgeon, reported to Dr Max Mollenkopf on 12 September 2023[24] recording a history of the applicant having a CMC joint arthropathy on the left hand with the applicant noting immediately on waking that he had heaviness in his left arm and pain radiating from his neck down into his hand. The doctor noted that the applicant had suffered with this ongoing pain and had weakness within his hand. The doctor noted that the applicant had seen Dr Mead for his shoulder and that Dr Mead had diagnosed a frozen shoulder.
[24] ARD pp 11-12.
Dr Lim noted that the applicant was seeing him for radicular pain from the neck to the left arm.
The doctor noted that the applicant had a stiff neck. He also had global weakness of the entire left upper limb. The doctor thought that this was mainly due to hesitancy from the pain. The doctor noted some mild wasting of the biceps and triceps.
Dr Lim noted that the MRI scan of the cervical spine demonstrated marked bilateral foraminal stenosis at C5/6 and C6/7. Dr Lim reported that he suspected that at the time of the original surgery the applicant may have had hyperextension of the neck leading to injury to the nerve that caused the radicular pains.
Dr Lim discussed with the applicant the different treatment options including injections and nonoperative management and also surgical options. The applicant was reluctant to have the injections having previously had multiple injections to his hand and shoulder with little success and was very fearful of having further injections. The doctor discussed surgical treatment in the form of a two level ACDF of C5/6 and C6/7. The applicant signed the paperwork to have the surgery performed.
The applicant was referred to Dr East for an opinion and treatment of his left shoulder.
Dr East in his capacity as an expert shoulder surgeon has identified that whilst the applicant had features of a left frozen shoulder such a diagnosis did not explain all the applicant’s symptoms. Dr East has then commenced exploring the potential presence of other pathology which has led to his consideration of the cervical spine and the obtaining of an MRI of the cervical spine and the referral of the applicant to a Dr Lim.
Dr Lim has provided an opinion as to the cause of the applicant’s symptoms and provided an explanation for the timing of the onset of the symptoms, a hyperextension injury to the neck at the time of the left hand surgery on 27 April 2022, recommended different treatment options including surgical treatment in the form of a two level ACDF of C5/6 and C6/7. It is the applicant’s evidence that he wishes to undergo the surgery recommended by Dr Lim.
On 15 November 2023 Dr Meads reported to Dr Mollenkopf[25] noting that the applicant was awaiting surgery for his cervical spine. Dr Meads noted that the applicant had some numbness in his median nerve distribution however it was difficult to know whether there was a component of carpal tunnel cubital tunnel or whether it was from the cervical spine.
[25] ARD p 161.
Dr Meads thought that it was prudent to wait until the cervical spine problems had been treated.
On 26 August 2024 Dr East reported that he had reviewed the applicant that day at which time the applicant presented with very similar features in his left shoulder and arm. He continued to have pain that burns starting in his cervical spine radiating down over his shoulder into his hand and arm. He had a normal passive range of motion in the shoulder which was unchanged. His active range of motion was reduced.
Given the applicant’s significant sensory disturbance and weakness with loss of active range of motion in the shoulder, Dr East felt that performing any shoulder surgery on him would be highly unreliable. It remained Dr East’s preference that the applicant undergo cervical spine surgery prior to a repeat examination and assessment with respect to his shoulder pathology. Significantly Dr East observed that it may be that all of the motor and sensory changes are related to his cervical spine compression. It is the applicant’s evidence that these changes had been present since the surgery.
A/Prof Leon Kleinman provided a forensic report to the respondent on 3 May 2024.[26] A/Prof Kleinman records that six weeks following the operation on his left thumb the applicant had pain in the thumb of his left hand with radiation of pain up the radial side of his left forearm, up his left upper arm and into the left side of his neck which he had not had prior to the surgery and he was unable to get his left hand behind his back or to the back of his head which he could do prior the surgery to his thumb.
[26] Reply pp 23-43.
A/Prof Kleinman is of the opinion that the applicant incidentally developed pain in his neck and radiation of pain down his left arm due to constitutional degenerative changes in his cervical spine at C5/6 and C6/7 which in the opinion of A/Prof Kleinman is not related to the left hand condition or to the applicant’s employment but rather due to underlying, age-related, degenerative changes in his cervical spine and the constitutionally narrowed spinal canal in his cervical spine.
In the respondent’s submission the opinion of A/Prof Kleinman that the applicant’s neck condition is due to constitutional degenerative changes and not related to the applicant’s employment should be accepted.

I do not accept the opinion of A/Prof Kleinman. The opinion of A/Prof Kleinman is based on the applicant developing the symptoms beyond his left hand six weeks following the left hand surgery. This is inconsistent with the applicant’s evidence, which I have previously accepted, that the symptoms commenced directly following the surgery to his left hand on
27 April 2022.
Whilst it is not until 27 February 2023 that consideration is given to there being additional pathology beyond the left shoulder it is Dr East, a specialist shoulder surgeon, who is the first to question whether there may be additional pathology contributing to the applicant’s symptom complex. Dr East as an expert shoulder surgeon was the best qualified medical expert to provide an opinion as to the shoulder condition and as such it is not surprising that he was the first to consider the possibility that there maybe other pathology contributing to the symptom complex. It is Dr East who refers the applicant to Dr Lim. As previously discussed, Dr Lim has provided an opinion as to the cause of the applicant’s symptoms and provided an explanation, a hyperextension injury to the neck at the time of the left hand surgery on 27 April 2022 based on what in my view is the correct history of the symptoms commencing directly following the surgery to the left hand. For the above reasons I accept the opinion of Dr Lim.
On 20 May 2024 Dr James Bodel, orthopaedic surgeon, provided a forensic report to the applicant.[27] Dr Bodel recorded a history of the applicant undergoing carpometacarpal joint replacement surgery on 27 April 2022 with a second surgery being performed on the hand on 10 May 2023.
[27] ARD pp 44-52.
Dr Bodel records that the applicant developed increasing left shoulder girdle pain which was associated with abnormal use of the left arm over the lengthy period of time that the applicant had pain and loss of function.
Dr Bodel was of the opinion that the applicant had developed consequential pain and stiffness in the region of his left shoulder and degenerative disc disease in the cervical spine where there was an aggravation, acceleration, exacerbation and deterioration of that disease process leading to injury following work.
In the opinion of Dr Bodel the neck pathology is a consequential condition aggravated by the nature and conditions of his work particularly after favouring his left arm following the injury to the left thumb.
The applicant does not rely on the opinion of Dr Bodel as to the cause of the applicant’s neck condition observing that the opinion of Dr Bodel is inconsistent with the applicant’s evidence as well as the history contained in the clinical records that the symptoms commenced directly following the left hand surgery on 27 April 2022. I agree with the applicant’s submission and do not accept the opinion of Dr Bodel in respect to causation.
For the above reasons I find on the balance of probabilities that the cervical spine symptoms and restrictions have resulted from the accepted injury sustained to the left thumb and therefore find that the applicant has sustained a consequential condition of the cervical spine.

Medical and treatment expenses

Ms Goodman confirmed on behalf of the respondent that the only treatment expense in dispute is the cervical spine surgery proposed by Dr Lim being a two level ACDF of C5/6 and C6/7.
It is submitted on behalf of the applicant that Dr Lim, Dr East and Dr Bodel all consider that the cervical spine surgery proposed by Dr Lim is reasonably necessary.
Whilst I do not accept Dr Bodel’s opinion as to causation, that does not in my view affect the opinion of Dr Bodel that the cervical spine surgery proposed by Dr Lim is reasonably necessary for the management of the work-related injury. Whilst the opinions of Dr Lim and Dr Bodel may differ in respect to causation, the condition and the symptoms which the proposed surgery is being recommended to treat is the same.
In the opinion of A/Prof Kleinman that the proposed surgery is not reasonably necessary as a result of the injury as the need for the surgery to the applicant’s neck is due to the underlying constitutional degenerative changes in the cervical spine.
A/Prof Kleinman appears to accept that the proposed surgery is reasonably necessary for the applicant’s condition but concludes that the condition is unrelated to the applicant’s accepted left thumb injury; a conclusion which I do not accept.
Whilst the medical evidence supports that the applicant does have a pre-existing degenerative condition of the cervical spine the condition was, on the evidence, asymptomatic prior to sustaining the consequential condition on 27 April 2022.
In terms of whether a proposed treatment is reasonably necessary as a result of the work-related injury Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) stated:
“[57] ….a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
I am of the view and find that the consequential condition has materially contributed to the need for the surgery proposed by Dr Lim as it is following the left thumb surgery on
27 April 2022 that the cervical condition has become symptomatic.
For the above reasons I find that the proposed cervical surgery being a two level ACDF of C5/6 and C6/7 proposed by Dr Lim is reasonably necessary.

Incapacity

The applicant claims weekly compensation pursuant to ss 36 and 37 of the 1987 Act from
27 April 2022 to 30 June 2024.
It is submitted on behalf of the applicant that the applicant has been totally incapacitated for work since 27 April 2022. That the evidence supports that the applicant’s work duties with the respondent were fairly heavy. That as a result of his injuries the applicant has trouble sleeping, holding objects, reduced left upper limb strength and reduced grip strength. He is also waiting to have the cervical spine surgery recommended by Dr Lim. In the applicant’s submission that there is no evidence of any suitable occupation which the applicant could perform. In the applicant’s submission the applicant is not someone who could transfer to light duties.
It is the applicant’s evidence that he attended High School up until Year 10. After leaving school in approximately 1977, he was employed at BHP as a labourer for approximately 10 years. He then found employment as a private investigator for a firm in Sydney for approximately five or six years. He then started his own business and worked as a private investigator. He then performed security work as an armed guard and also Cash-In-Transit Security for approximately six years. He was employed in airport security for NMS Security Services and transferred between Brisbane International Airport, Mackay Airport and Cairns Airport for approximately four or five years.
It is the applicant’s evidence that his work duties with the respondent included washing, buffing and sweeping shop floors; cleaning the shop as well as the staff lunchroom and toilets; collecting trays and ordering cleaning equipment and supplies as well as supervising up to seven employees.
It is the applicant’s evidence that he has constant pain in his neck, shoulder and arm which travels down to the hand. That he is unable to open/close some items, for example bottles and taps. That his left hand is very weak and that he is always dropping things and that he is unable to sleep.
On 12 May 2022 Dr Brent completed a Centrelink medical certificate[28] in which the doctor certified the applicant unfit for work from 21 May 2022 to 21 August 2022. Dr Bright certified the applicant unfit for work from 15 November 2022 to 15 February 2023[29] and from
[28] ARD p 297.
[29] ARD p 315.
[30] ARD p 317.
15 February 2023 to 15 May 2023.[30]
A certificate of Capacity completed by Dr Bright on 11 July 2024[31] certified the applicant with no current work capacity from 29 April 2022 to 15 August 2024.
[31] ARD p 77.
Dr Bodel in his report of 20 May 2024 assessed the applicant to have no current capacity for work and was of the opinion that the applicant’s chances of returning to paid work were very poor.
A/Prof Kleinman in his report of 3 May 2024 expressed the opinion that the applicant was unfit for his pre-injury duties. The doctor was of the opinion that if suitable sedentary duties consistent with his training and experience could be found, the applicant could return to full-time work. In the doctor’s opinion the applicant was not fit to perform any duties which involve repetitive use of his left hand, lifting and carrying of more than 1kg in weight with his left hand, working with his left arm above shoulder level, manipulating small objects with his left hand or working with his neck in extremes positions.
I am of the view that the applicant had no current work capacity between 27 April 2022 to
30 June 2024. The applicant underwent surgery to his left hand on 27 April 2022 following which his hand was in a cast. Following the left hand surgery the applicant has developed pain and significant loss of range of motion affecting his left upper limb. The applicant is awaiting significant cervical spine surgery following which surgery to the left shoulder may also be considered. The available medical certificates certify the applicant with no capacity for work an opinion which Dr Bodel supports. A/Prof Kleinman is of the opinion that if suitable sedentary duties consistent with his training and experience could be found, the applicant could return to full-time work however no such suitable duties have been identified.
For the above reasons I find that the applicant was totally incapacitated for work from 27 April 2022 to 30 June 2024.
Section 36 of the 1987 Act provides for the payment of weekly compensation at the rate of 95% of the PIAWE for the first 13 weeks to an injured worker who has no current work capacity.
Section 37 of the 1987 Act provides for the payment of weekly compensation at the rate of 80% of the PIAWE from weeks 14 to 130 to an injured worker who has no current work capacity.
As previously noted the applicant’s PIAWE has been agreed at $1,190. Indexing the agreed PIAWE from the deemed date of injury of 29 April 2021 in accordance with s 82A of the 1987 Act and applying rounding in accordance with s 82D of the 1987 Act there is an award for the applicant for weekly benefits compensation as follows:
(a) $1,159 per week from 27 April 2022 to 26 July 2022 pursuant to s 36 of the 1987 Act;
(b) $976 per week from 27 July 2022 to 30 September 2022 pursuant to s 37 of the 1987 Act;
(c) $1,008 per week from 1 October 2022 to 31 March 2023 pursuant to s 37 of the 1987 Act;
(d) $1,048 per week from 1 April 2023 to 30 September 2023 pursuant to s 37 of the 1987 Act;
(e) $1,072 per week from 1 October 2023 to 31 March 2024 pursuant to s 37 of the 1987 Act, and
(f) $1,088 per week from 1 April 2024 to 30 June 2024 pursuant to s 37 of the 1987 Act.

[2024] NSWPIC 559

9 October 2024