Martis v Dnata Catering Australia - [2021] NSWPIC 11

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Martis v Dnata Catering Australia [2021] NSWPIC 11
APPLICANT:	Andreas Martis
RESPONDENT:	Dnata Catering Australia
MEMBER:	Rachel Homan
DATE OF DECISION:	8 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for section 60 expenses in relation to proposed cervical spine surgery; injury to cervical spine disputed; whether surgery proposed is reasonably necessary as a result of injury; Held– applicant sustained injury pursuant to section 4(b)(ii); the proposed surgery is reasonably necessary as a result of injury; respondent to pay the costs of and incidental to the surgery.
DETERMINATIONS MADE:	1. The applicant sustained an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. 2. The C5/C6 & C6/C7 Anterior Cervical Discectomy and Fusion surgery proposed by Dr Donnellan is reasonably necessary as a result of the injury.
ORDERS MADE	The respondent to pay the costs of and incidental to the proposed surgery in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Andreas Martis (the applicant) was employed by Dnata Catering Australia (the respondent) to provide aircraft catering services from 29 July 2002 onwards. The applicant claims that he sustained an injury to his left shoulder and cervical spine as a result of the nature and conditions of his employment.
Liability for an injury to the applicant’s left shoulder was accepted by the respondent’s insurer. On 5 December 2018, the applicant sought approval for cervical spine surgery proposed by his neurosurgeon, Dr Michael Donnellan.
Liability for an injury to the applicant’s cervical spine and to pay the costs of the surgery was declined in a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 24 January 2019. That decision was maintained in a further notice dated 25 June 2019.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 13 November 2020. The applicant seeks compensation under s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the C5/C6 & C6/C7 Anterior Cervical Discectomy and Fusion surgery proposed by Dr Donnellan.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 3 February 2021. The applicant was represented by Mr Ross Stanton of counsel instructed by Ms Sarah Bell-Bagguley. The applicant was assisted by an interpreter in the Greek language. The respondent was represented by Mr Andrew Parker of counsel instructed by Ms Mai Nguyen. A representative from iCare was also present.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant has sustained an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent as alleged, and
(b) whether the C5/C6 & C6/C7 Anterior Cervical Discectomy and Fusion surgery proposed by Dr Donnellan is reasonably necessary as a result of injury.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:

(a) ARD and attached documents; and
(b) Reply and attached documents.

Neither party applied to cross-examine any witness or adduce oral evidence.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 13 December 2020.
The applicant said that he was in good health and had no injuries prior to developing left shoulder and cervical spine injuries during his employment with the respondent.
The applicant said that he commenced employment with the respondent on 29 July 2002. The applicant’s duties involved a lot of repetitive loading and unloading of heavy food carts and opening and closing heavy doors. The carts would weigh between 40 and 120 kg depending on the cart and the applicant worked 7½ hours each day. The applicant also drove trucks and loaded and unloaded 80 to 100 small boxes filled with food and drinks every day. The applicant would move 50 to 150 carts in a day. The applicant’s tasks required him to lift overhead and bend down all day.
Sometime in 2016, the applicant started to notice recurring pain at his shoulders and neck. The applicant reported this to his employer and treating general practitioner. The applicant attended a physiotherapist provided by the respondent but continued to experience pain at the shoulders and neck, most prominently at the left shoulder.
The applicant said he first reported left shoulder and arm pain relating to heavy lifting at work on 11 May 2017. The applicant initially reported symptoms at the left arm and shoulder as these were the most prominent at the time. The applicant was also experiencing pain in his neck but the left shoulder was the major issue.
The applicant saw the work doctor and was initially diagnosed with a left rotator cuff tear by orthopaedic surgeon Dr Jonathan Herald. Dr Herald performed a left shoulder surgery on 14 December 2017.
The surgery did not relieve the applicant’s left shoulder pain and the applicant noticed that he was experiencing numbness down his left arm into his fingers. The pain in the applicant’s neck was more severe. The applicant was referred to a neurologist and underwent various scans of his cervical spine. The applicant was eventually referred to Dr Donnellan who recommended surgery to the cervical spine.
The applicant sought a second opinion with respect to the surgery from Dr Anil Nair. Dr Nair also recommended the surgery.
The applicant said that he trusted the opinion of Dr Donnellan and wished to proceed with the surgical procedure recommended by him.

Evidence from treating practitioners

The treating medical evidence before me includes the report of radiological investigations of the cervical spine and right shoulder performed on 9 February 2016 at the request of general practitioner, Dr Kypros Koutsoulis. That report revealed:
“There is multilevel spondylosis at the discovertebral, uncovertebral and facet joints particularly at C4/5 and C5/6. There is bilateral C4/5 and C5/6 neural exit foraminal narrowing and left C6/7 neural exit foraminal narrowing.”
The applicant was referred to orthopaedic surgeon, Dr Jonathan Herald, by general practitioner, Dr Mandlenkosi Sibanda, on 28 July 2017. The letter of referral gives a history as follows:
“Andreas experienced a gradual onset of left shoulder to arm pain over the past few months. No specific incident. Pain happened over the course of doing normal duties which involve pushing carts, offloading food carts, lifting 10-15kg boxes overhead and driving a truck, opening heavy doors. He has tenderness over the superior aspect and restriction in ROM. He was unable to complete the MRI due to an anxiety attack.
USS shows: Partial thickness tear and tendinitis of the supraspinatus tendon and subscapularis tendon Subacromial bursitis with evidence of left shoulder impingement.”
On 14 August 2017, Dr Herald reported that he had seen the applicant:
“He is a driver for Qantas and his job involves a lot of offloading of food carts at about shoulder height position, opening and closing heavy doors. In doing so, he started developing shoulder pain from 11 May 2017. The pain initially was not very severe but gradually increased in severity with his work over that time period. He subsequently had physiotherapy and anti-inflammatory tablets after an ultrasound showed a partial thickness rotator cuff tear. He comes to see me today for review.
EXAMINATION
On examination he has tenderness over his greater tuberosity and pseudoparalysis of his left arm. He has grade 4 power of external rotation and a negative belly press test with forward elevation to only 40 degrees. He has positive signs of biceps tendinitis.”
An email from Dr Sibanda to the respondent dated 16 August 2017 stated:
“Seen by Dr Herald
Ongoing symptoms experiences tension to left shoulder to neck
and associated headache after repetitive use of left arm
feels stressed by loss of function of left arm and the current provided duties.
symptoms triggered by use of left arm in a repetitive way at or above chest height
prefers to do marshalling -advised that he needs to discuss that with his RTW coordinator
awaits MRI and f/u with Specialist”
On 3 November 2017, Dr Sibanda reported to the respondent’s insurer that the applicant had experienced a gradual onset of left shoulder to arm pain over a few months without specific incident. Dr Sibanda diagnosed left shoulder supraspinatus tendinosis and partial thickness tear/subacromial bursitis/adhesive capsulitis. Dr Sibanda gave the opinion:
“It is my opinion that Mr Martis's employment with Q Catering is a substantial contributing factor to his injury, based on that he denied history of any previous left shoulder injuries and the nature of his job which involve pushing/pulling heavy carts, offload food carts, lifting 10-15kg boxes overhead, and opening heavy aircraft doors.
In my opinion his employment with Q Catering is the main contributing factor for his current presentation because his job is manual and repetitive with overhead lifting though age is also a risk factor.”
An operation report dated 14 December 2017 confirms that the applicant underwent left shoulder surgery performed by Dr Jonathan Herald on that date. The findings of the procedure were:
“Full thickness supraspinatus rotator cuff tear.
Biceps tendon tearing.
Small residual adhesive capsulitis.
Subacromial spur”
Dr Herald reviewed the applicant on 18 June 2018 and reported:
“It is now three months following his shoulder surgery. He is improving with his shoulder, however he is still having problems with his hand. The nerve conduction studies have shown some numbness in his hand, but it is not actually coming from the carpal tunnel although his median nerve has some compression. The concern is that it may be higher up, either at the elbow or at the neck.”
Dr Herald diagnosed a possible cervical disc prolapse and referred the applicant for an MRI of the cervical spine.
The report of the MRI of the cervical spine performed on 31 July 2018 at Dr Herald’s request included clinical notes as follows:
“Left hand paraesthesia. ? Cervical myelopathy. ? C7”
The MRI was reported to show:
“Multilevel degenerative change in keeping with age.
Changes on the left most marked at C4/5, C5/6 and C6/7.”
Neurosurgeon, Dr Michael Donnellan, prepared a report for Dr Herald on 10 October 2018. Dr Donnellan recorded a history as follows:
“Andreas tells me he has had an insidious but progressive deterioration in the strength in his left shoulder and hand. This has occurred over the last year or so. When he started to lose the range of motion of his left shoulder you have intervened surgically. ln the meantime, he has also complained about poor grip strength and intermittent sensory disturbance in his hand and paraesthesia, which is worse at night. As well as the left upper limb symptoms, he has also had neck pain and some intermittent headache.”
Dr Donnellan’s physical examination revealed decreased range of motion when rotating the neck to the left. The applicant had relatively normal power in both upper limbs apart from some mild weakness of wrist extension and grip on the left. Reflex examination was normal. The applicant had altered sensation in the left median nerve or C7 distribution. An MRI showed mild foraminal stenosis on the left at C4/5, C5/6 and C6/7. There was impingement of the left C7 nerve root by osteophyte. Dr Donnellan proposed the following assessment and plan:
“I suspect Andreas has a double-crush phenomenon from a mild left C7 nerve root compression and some carpal tunnel. Andreas is also very anti-surgery so it may limit what I can offer him. Because the neck pain and headache is a significant part of his pain syndrome, I have asked him to undergo a bone scan as well as x-rays and a CT scan to see if he has any active disc or vertebral arthritis or facet joint arthropathy. After seeing that, I may consider offering him steroid injections to help him with his symptoms. Even if he is against surgery to his cervical spine, he may be a candidate for a carpal tunnel release in the future.”
An x-ray and CT scan of the cervical spine were performed at the request of Dr Donnellan on 2 November 2018. A bone scan of the cervical spine was performed on 6 November 2018, the report of which recorded clinical indications as follows:
“Pain in neck for 10 months following previous left shoulder injury.”
The bone scan was reported to have revealed:
“Discovertebral degenerative arthritis at the C4-5 and C5-6 levels.
Mild degenerative arthritis in the left facet joint at the C5-6 level.
Degenerative arthritis in both acromioclavicular joints.”
Dr Donnellan reviewed the applicant on 14 November 2018 with the results of the bone scan and CT scan. Dr Donnellan stated:
“The bone scan showed in fact there was intense uptake in the C5/6 intervertebral disc. I am sure that it is contributing a lot to his neck pain and cervicogenic headache. The MRI has already documented a disc fragment compressing on the left C7 nerve root, so I suspect the main pain generator in his arm is the C6/7 level and the main pain generator in his neck and head is the C5/6 disc. He is undergoing a CT scan in a week's time to exclude any other causes of headache but in the absence of there being any surprise from that, my recommendation is that he undergoes a C5/6 and C6/7 ACDF.”

On 22 November 2018, Dr Donnellan wrote to the insured seeking approval for the applicant to undergo a C5/6 and C6/7 anterior cervical discectomy and fusion.
On 5 December 2018, Dr Donnellan wrote to the applicant’s general practitioner stating that the applicant had undergone an MRI of the brain which was normal. As there was no other cause for the applicant’s headaches, he concluded the headaches were associated with the discogenic neck pain. Dr Donnellan said his opinion remained the same - that the applicant would be best served by undergoing a C5/6 and C6/7 anterior cervical discectomy and fusion.
A report from spinal surgeon, Dr Anil Nair, dated 30 March 2020, stated:
“I saw Mr Martis on the 9th of January 2019. At that stage, he had a spondylolisthesis at T5/6 and foraminal narrowing at C5/6 and C6/7, which explained both his neck and upper extremity symptoms.
…
It is my opinion that there is a clear and unambiguous nexus between his subaxial cervical condition and his workplace as of January of 2019.
As of January of 2019, I would recommend full-time work, however, with no lifting greater than 5kg and no overhead lifting at all.
It is my opinion that both the neck and left shoulder were injured as a consequence of his employment with Qantas.
…
The proposed surgery is reasonable and necessary. I discussed surgery with him when he presented to me in January 2019 and asked him to deliberate the information provided.”
On 22 June 2020, Dr Herald reported that the applicant had returned for review:
“He has continued to have left shoulder and neck pain. As you know he saw Dr Donnellan and eventually got a second opinion from Dr Nair and both neurosurgeons recommended surgery on his neck. They suggest that if he did not have the operation he would have increasing weakness and pain down his left upper limb. He has continued to have neck pain and left-sided face pain as well as pain and numbness radiating down his left arm. He has troubles lifting his arm up. Over the last few months however he feels like his pain particularly in his left shoulder has gotten worse.”
Dr Herald referred the applicant for an ultrasound of his left shoulder to compare with his previous ultrasound done in 2018 after the surgery in order to determine whether there was a rotator cuff tear or not. Dr Herald also suggested a subacromial injection of cortisone and local anaesthetic to help determine what percentage of pain and weakness was coming from the shoulder or from the neck.
A report dated 25 June 2020 indicates that the applicant underwent a left shoulder ultrasound and ultrasound-guided left shoulder subacromial injection on that date. The report indicated that no tear had been demonstrated in the subscapularis and supraspinatus tendons. There was thickening of the subacromial bursa with bursal bunching on abduction in keeping with subacromial bursitis.
On 24 July 2020, Dr Donnellan forwarded to the insurer a further request for approval for a C5/6 and C6/7 anterior cervical discectomy and fusion.
On 25 July 2020, the applicant underwent a further MRI of the cervical spine, which was reported to show:
“Multi-level degenerative change involving the intervertebral and uncovertebral joints in the mid/lower cervical spine as described above.

Possible impingement of the exiting left C5 and C7 nerve roots and bilateral C6 nerve roots.”
Dr Donnellan prepared a report for the applicant’s solicitors on 25 September 2020. Dr Donnellan recited the history provided in his earlier reports. The applicant complained of progressive deterioration in the strength and range of movement in his left shoulder and hand and persistent radiculopathy symptoms. Dr Donnellan stated:
“The neck injury is directly related to the initial injury but it was obscured by the concomitant shoulder injury.
I did recommend a two level ACDF at C5/6 and CG/7 as I noticed significant left arm weakness which was attributable to a C7 radiculopathy. On the 25th of January 2019 the Insurance company declined liability for the cervical spine. I saw Andreas on the 14/7/2020 and unfortunately his symptoms have worsened. I did resend the approval for surgery.”

Dr Bentivoglio

The applicant relies on a medicolegal report prepared by Dr Peter Bentivoglio, dated 19 March 2019.
Dr Bentivoglio took a history of the applicant reporting symptoms from 11 May 2017 but experiencing slow developing left shoulder and left arm pain 12 months prior to this. The applicant was initially treated with physiotherapy. The applicant was diagnosed with a left rotator cuff tear by Dr Herald who performed a rotator cuff repair on 14 December 2017. The applicant maintained that the operation had not significantly helped his shoulder movement or pain.
The applicant was referred to a neurologist and told that the shoulder pain was coming from his neck in May 2018. The neurologist diagnosed median nerve dysfunction. However, the applicant underwent MRI scans of his left wrist, left forearm and left elbow which did not reveal evidence of median nerve abnormality.
The applicant underwent an MRI of the cervical spine on 31 July 2018 which showed significant degenerative disc disease at C4/5, C5/6 and C6/7.
The applicant experienced numbness of his hand prior to the shoulder surgery.
The applicant was reviewed by Dr Donnellan who had recommended surgery. Dr Bentivoglio noted that a second opinion, agreeing with Dr Donnellan, had also been given.
The applicant reported experiencing left neck pain and headaches going to the left arm with numbness of the fingers. Dr Bentivoglio’s examination revealed marked reduction of neck movement and marked reduction of left shoulder movement. Active and passive movements of the left shoulder caused pain. Reflexes were symmetrical and normal and there was no evidence of radiculopathy or myelopathy.

Dr Bentivoglio diagnosed cervical spondylitic disease and left cervical brachialgia secondary to a left C6 and C7 nerve root compression. The applicant also had limitation and painful movement of the left shoulder.
Dr Bentivoglio said the injury was “quite consistent” with the work that the applicant had been doing and the history given. Dr Bentivoglio said the neck injury was there at the same time as the left shoulder. Dr Bentivoglio said:
“I believe that the work Mr Martis has been doing has been a general aggravating problem for his degenerative disease in his cervical spine. This is something that has slowly but surely been getting worse and is consistent with a gradual deterioration rather than a frank injury. Mr Martis has been working with Qantas for 17 years now.
…
I believe his work has been a substantial contributing factor to the aggravation of this degenerative disease in his cervical spine and has slowly but surely exacerbated the problem to that point that now he is developing brachialgia with neurological compression.”
Asked to comment on the treatment the applicant would reasonably require in the future, Dr Bentivoglio stated:
“From the point of view of his neck, treatment would be physiotherapy and periradicular nerve blocks around the C6 and C7 nerves on the left side could be considered. If they do not work, then one would consider operative decompression of the C6 and C7 nerve roots on the left side.
…
So from the point of view of his treatment, I believe if all conservative measures have failed, operative intervention is indicated. Decompressive surgery at C5/6 and C6/7 with posterior cervical foraminotomy or a C5/6 and C6/7 anterior cervical discectomy and fusion would be reasonable and appropriate approaches to Mr Martis' neck issues.
So whether he has the surgery from in front or the back, the option is to decompress the C6 and C7 nerve roots on the left side.
Only if all conservative measures have failed, and I point out periradicular nerve blocks could be tried, if they have not already been tried, and a thorough course of physiotherapy to his neck, if that has not been done. If all these have been carried out, then the surgical option is appropriate. Whether it is done from the front or the back approach, either is appropriate”

Dr Carney

The respondent relies on a medicolegal report prepared by neurosurgeon, Dr Paul Carney, dated 5 June 2019.
Dr Carney took a history of developing shoulder and arm problems starting slowly from 2016 onwards. The applicant developed to trigger finger and some pins and needles affecting the palm of the hand and all of his fingers but not the arm, which he thought came on shortly before the surgery to the shoulder. The numbness and tingling in the arm got worse after the operation while the arm was in a sling and the applicant was off work for six months prior to resuming light duties. The applicant said his arm was not improved by the operation. With regard to the neck, Dr Carney recorded:
“He said his neck is sore on the left side, and this soreness spreads onto the face laterally on the left side. He said he also gets headache. He says if he sleeps on his left side, he will feel some dizziness for between 3 and 5 seconds.
When asked when the soreness in his neck developed, he said he felt it a bit before the operation, but it was worse after the operation. He said he did not know he had neck problems. He said after the operation when his shoulder did not get better, he had scans of his neck and head to find out where the pain was coming from.”
Dr Carney described the applicant as “an extremely vague historian” and said it was difficult to get “any remotely consistent history of the onset of symptoms” particularly in relation to the left arm, hand and neck.
On examination, Dr Carney found a good range of cervical spine movement in extension, flexion and rotation to the right but restriction to 50% of normal range on the left. There was no provocation of arm pain with any neck manoeuvre. Dr Carney found no objective evidence of any neurological abnormality. Strength testing produced a giveaway weakness with jerky characteristics which had a strongly non-organic character. Sensory testing also gave pinprick impairment in a non-organic pattern.
Dr Carney had before him an MRI of the cervical spine performed on 31 July 2018. A CT scan of 2 November 2018 showed degenerative changes but no significant foraminal compression.
Dr Carney summarised the applicant’s condition as follows:
“Mr Martis describes very vague history in which there appears to be primarily an onset of shoulder joint problems without any significant unrelated arm symptoms until following surgery to the left shoulder nearly seven months after the reported date of injury.
Examination does not reveal any neurological evidence of nerve root dysfunction or spinal cord dysfunction. There is, however, a clear-cut pattern of non-organic weakness and sensory impairment.”
Dr Carney considered that the applicant had degenerative changes at the cervical spine and there was “no evidence of the workplace injury as claimed on 25 July 2017 which would cause cervical spine pathology”.
Asked whether the applicant had suffered any injury to the neck either due to the nature of his employment conditions or consequential on his left shoulder injury, Dr Carney responded:
“I have no evidence of an injury to the neck at work, nor do I consider it likely he would have suffered a cervical spine injury secondary to the left shoulder injury or any surgery carried out on it.”
Asked whether employment with the respondent was the main contributing factor to an aggravation of a disease at the cervical spine, Dr Carney responded:
“I think it is very unlikely that employment has aggravated cervical spine degeneration. Noting his age, the degree of degeneration is not inconsistent with that age.”
Asked whether the surgery proposed to the cervical spine was reasonably necessary as a result of the workplace injury, Dr Carney responded:
“I consider the proposed cervical spine surgery is not reasonably necessary as a result of the workplace injury. I find no evidence that he has radiculopathy or a problem in the cervical spine likely to respond to fusion with foraminal clearance. It is possible that such a procedure might relieve some of his symptoms due to degenerative changes, but that would be a high-risk procedure given the non-organic findings.”
Dr Carney said the only treatment for the cervical spine was appropriate conservative management for degenerative changes.

Applicant’s submissions

Mr Stanton referred to the applicant’s evidence, noting that he commenced employment with the respondent in 2002. The nature of the applicant’s work was described in detail in his statement and there was no evidence to contradict it. The applicant described physically arduous work over an extensive period of time. Mr Stanton said it was perfectly conceivable that this type of work would cause stress to the applicant’s anatomy.
Mr Stanton noted that initially the applicant’s treating doctors focused on the left shoulder. The applicant was found to have significant damage to that shoulder when the operation to the left shoulder was performed. Mr Stanton said that explained why, when the applicant first claimed compensation, he focused on the symptoms in the shoulder.
Mr Stanton noted that the applicant had, however, given evidence that his neck symptoms started in 2016. Mr Stanton noted that there was an early reference to neck symptoms by Dr Sibanda, who noted the applicant experienced tension from the left shoulder to the neck. The applicant had given evidence that he was experiencing pain in his neck but the left shoulder was the most prominent issue. Mr Stanton submitted that although it was understandable that the applicant’s left shoulder was getting all the attention, the neck symptoms were referred to in the contemporaneous medical evidence.
Referring to the report of Dr Herald, dated 18 June 2018, Mr Stanton noted that the applicant was recorded as still having problems with his hand. Dr Herald’s report indicated that he was aware of the applicant having problems with the hand previously. Dr Herald expressed concern that the applicant’s symptoms may be originating higher up, either at the elbow or the neck.
Mr Stanton observed that nerve conduction studies were performed although the report of those studies was not in evidence. Dr Herald considered there may be a possible cervical disc prolapse and referred the applicant for an MRI of the cervical spine. The report of that MRI revealed degenerative changes at C5 to C7. Dr Herald referred the applicant to Dr Donnellan to treat the cervical spine.
Dr Donnellan was the first specialist to see the applicant in relation to his cervical spine and recorded neck pain and left hand weakness. The applicant described insidious but progressive deterioration in the left shoulder and hand, poor grip strength, sensory disturbance and paraesthesia. The applicant also had neck pain and intermittent headache.
Dr Donnellan suspected a double crush phenomenon from a mild left C7 nerve root compression and some carpal tunnel. Dr Donnellan referred the applicant for a bone scan,
x-rays and CT scan.
The bone scan was performed and showed intense uptake in the C5/6 intervertebral disc. Mr Stanton referred to the opinion given by Dr Donnellan as to the cause of the symptoms in the applicant’s neck and arm, which led him to recommend the C5/6 and C6/7 anterior cervical discectomy and fusion.

Referring to Dr Donnellan’s report to the applicant’s solicitors, Mr Stanton submitted that he had a correct history of a gradual onset of symptoms. Dr Donnellan said the neck injury was directly related to the initial injury but was obscured by the concomitant left shoulder injury.
Mr Stanton submitted that in considering whether the surgery was reasonably necessary, one consideration was whether the procedure was part of the usual armoury of treatments for the condition. Mr Stanton noted that Dr Nair also expressed the opinion that the proposed surgery was reasonably necessary and causally related to employment with the respondent.
Mr Stanton submitted that although the surgery was not inexpensive there was nothing unusual about the costs estimated for the procedure.
Dr Bentivoglio had also taken a history broadly consistent with the history described in the applicant’s statement and given to the treating practitioners, including Dr Donnellan. Mr Stanton submitted that Dr Bentivoglio had expressed an opinion consistent with a finding of an aggravation of a disease due to the body’s failure to cope with repeated stresses placed upon it consistently with s 4(b)(ii) of the 1987 Act.
Mr Stanton noted that the insurer had declined liability to pay for treatment for the cervical spine. Conservative treatment had not been performed because it had not been approved.
Mr Stanton submitted that greater weight would be given to Dr Donnellan’s opinion with regard to the current necessity for the surgery. Dr Donnellan had seen the applicant over a longer period of time, in the course of multiple consultations. Dr Donnellan had seen the investigations and given an opinion that the appropriate course was to carry out the surgery now. Dr Nair was of the same view.
Mr Stanton said the applicant relied on the evidence of two surgeons giving an opinion in favour of surgery being reasonably necessary now rather than trying physiotherapy and nerve blocks.
Having regard to the opinions of Dr Donnellan, Dr Nair and Dr Bentivoglio, Mr Stanton submitted that the Commission would be well satisfied that the applicant sustained an injury pursuant to s 4(b)(ii) as a result of heavy work over a long period of time. Relying on Dr Nair and Dr Donnellan, Mr Stanton submitted that the Commission would also be satisfied that it was reasonably necessary for the proposed surgery to be carried out at this stage.
Mr Stanton submitted that if the Commission were against him on the need for surgery, a finding of injury and a general order pursuant to s 60 of the 1987 Act should be made.
Mr Stanton observed that the only contrary opinion was found in the report of Dr Carney in 2019. Dr Carney only had limited radiological reports before him. Other radiological investigations, including a 2020 MRI were not before him.
Mr Stanton submitted that Dr Carney’s examination of the applicant was very different to those recorded by Dr Donnellan and Dr Bentivoglio. Mr Stanton submitted that the Commission would not prefer Dr Carney’s view that there was an absence of nerve root compression. Mr Stanton noted there was ample radiological evidence and clinical observations of nerve root compression. Even Dr Herald was of the view that symptoms in the hand were caused, in part, by the neck.
Mr Stanton submitted that Dr Carney had turned his mind to the wrong issue. His opinion only made sense if it were understood that he was looking for a specific traumatic event. Dr Carney did not consider the possibility that the applicant’s heavy work over many years had aggravated the degenerative pathology that was present in the cervical spine. Mr Stanton submitted that the Commission would not accept Dr Carney’s opinions.

Respondent’s submissions

Mr Parker objected to the course proposed by the applicant with respect to a general order. Mr Parker submitted that a finding on injury and a general order would preclude the respondent from any appeal right having regard to the findings in Popovic v Liverpool City Council[1] and Widdup v Hamilton[2]. Mr Parker noted that the applicant had not made any claim for incurred expenses or conservative treatment. Only the neck surgery had been requested and declined. The Commission was only able to make findings on the basis of a disputed claim properly brought before it. If the applicant were unsuccessful in his claim for the surgery, there should be an award for the respondent.
[1] [2017] NSWWCCPD 49 (Popovic).
[2] [2006] NSWWCCPD 258.
Mr Parker submitted that the applicant’s statement failed to indicate what contemporaneous complaints of neck symptoms were made. In this regard the case was said to be akin to Department of Education and Training v Ireland[3] and different to Mason v Demasi[4].
[3] [2008] NSWWCCPD 134.
[4] [2009] NSWCCA 227.
The applicant said he started noticing pain in the shoulders and neck in 2016. Mr Parker noted that radiological investigations of the cervical spine and right shoulder were performed in 2016 but said there was no evidence of what prompted the referral. There was nothing else in the contemporaneous material to suggest an injury to the neck.
Referring to authorities such as Watson v Foxman[5] and Onassis v Vergottis[6], Mr Parker said there was no contemporaneous evidence to corroborate pain or treatment at the neck from 2016 onwards. Mr Parker submitted that the applicant was retrospectively complaining of neck pain at the same time as the shoulder. Mr Parker noted that the applicant did not claim to have reported, and there was no evidence of the applicant in fact reporting, neck symptoms until after the left shoulder surgery.
[5] (1995) 49 NSWLR 315.
[6] (1968) 2 Lloyds Report 403.
Mr Parker noted that the report of the bone scan performed on 6 November 2018 recorded a history of pain in the neck for 10 months. Mr Parker noted that although Dr Sibanda referred to the neck in an email dated 16 August 2017, he said the symptoms were coming from the shoulder to the neck not the other way around. The report from Dr Sibanda to the insurer on 3 November 2017 made no mention of the neck, no doubt because no complaint of neck symptoms was made. Mr Parker submitted that Dr Herald gave no clear indication that the applicant was complaining of neck symptoms. What remained was only the applicant’s lay evidence as to his neck symptoms and a lack of reporting of those symptoms.
Mr Parker submitted that Dr Donnellan seemed to assume there was a specific injurious event at the shoulder on 11 May 2017. It was unclear whether he understood that there was no specific injury involving the shoulder. Dr Donnellan seemed to assume that neck and shoulder injuries happened at the same time. No opinion on the main contributing factor test had been offered by Dr Donnellan. Dr Donnellan did not set out what history he had been provided with in terms of the applicant’s duties or explain what test he applied in giving his opinion on causation. As a result, the applicant was unable to rely on Dr Donnellan’s opinion to support his case.
Mr Parker submitted that Dr Bentivoglio had not reconciled the applicant’s claim of symptoms at the cervical spine appearing around the same time as the shoulder with the evidence which showed an onset of symptoms only after the left shoulder injury. Mr Parker noted that Dr Bentivoglio was asked to give an opinion on the main contributing factor test but didn’t provide it, instead providing an opinion that employment was a substantial contributing factor. Being an experienced doctor in the jurisdiction, Mr Parker submitted that this suggested that Dr Bentivoglio did not consider that employment was the main contributing factor to the applicant’s cervical spine condition but only a substantial contributing factor.
Mr Parker submitted that Dr Carney had taken a good history and provided a good analysis and commentary in expressing his opinion. Dr Carney said there was no radiculopathy that would be fixed by the proposed surgery. He concluded that the applicant had a degenerative condition. That conclusion was consistent with the radiological investigations and the onset of symptoms.
Mr Parker submitted that there was a real issue as to the efficacy of the treatment proposed. Dr Herald suggested that the applicant should undergo an injection to the shoulder to determine what percentage of pain was coming from the shoulder and what from the neck. It was unclear whether that injection had been performed and it remained unclear where the applicant’s pain was coming from.
Mr Parker noted that Dr Carney considered the proposed surgery to be risky and noted that the applicant was unlikely to respond to it.
There was no evidence that the applicant had undergone physiotherapy or nerve blocks as recommended by Dr Bentivoglio. Dr Bentivoglio’s opinion fell short of indicating that the proposed surgery would be reasonably necessary if conservative treatment failed. He only said the surgery “could be considered” at that point. Both Dr Carney and Dr Bentivoglio had given the opinion that conservative treatment should be attempted first. There was no evidence from the applicant of any conservative treatment being attempted.
Mr Parker submitted that Dr Donnellan had recommended that the applicant undergo major surgery without even attempting minor conservative treatment first. That recommendation was not consistent with the principles in Diab v NRMA Ltd[7]. The cost of the surgery was significant and there was a long period of recovery involved. These were all factors which had to be weighed.
[7] [2014] NSWWCCPD 72.
Mr Parker submitted that it was necessary for the Commission to determine whether the surgery was appropriate now. The answer to that question was no.

Applicant’s submissions in reply

Mr Stanton submitted that Popovic only stood for the proposition that a general order for s 60 expenses would not satisfy the monetary threshold for an appeal. No criticism was made of the general order made by the Arbitrator. It remained open for the Commission to make a general order of that kind.
Mr Stanton submitted that in the event the applicant was unsuccessful in the claim for surgery it was not necessary nor would it be appropriate for the Commission to enter an award for the respondent.
Mr Stanton said there were no other medical expenses claimed at present as liability for the cervical spine injury had been denied.
Mr Stanton submitted that the applicant’s failure to have conservative treatment must be viewed in the context of the insurer’s failure to pay for it. It would be perverse for that failure to be used as a basis for rejecting the claim for surgery.

FINDINGS AND REASONS

Injury

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The first issue requiring determination is whether the applicant sustained an injury to his cervical spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process pursuant to s 4(b)(ii) of the 1987 Act, as claimed.
It is the applicant who bears the onus of satisfying the Commission on the balance of probabilities that an injury has occurred. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[8] McDougall J stated at [44]:
“A number of cases, of high authority, insist that 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 Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[8] [2008] NSWCA 246.
The applicant has provided a clear and relatively detailed description of the nature and conditions of his employment with the respondent in his written statement. The applicant’s evidence with regard to his duties is not contradicted by any of the other material before me. I accept on the basis of this evidence that the applicant’s work involved repetitive loading and unloading of heavy food carts, opening and closing heavy doors, driving trucks, lifting overhead and bending down.
It has not been disputed that the nature and conditions of the applicant’s employment caused injury to his left shoulder. The applicant has given evidence that he reported left shoulder and arm pain related to his work from 11 May 2017. There is contemporaneous medical evidence dating from July 2017 referring to those symptoms in evidence. The referral to Dr Herald from Dr Sibanda in July 2017 indicated that the applicant had reported shoulder and arm pain. Ultrasound investigations had by this point identified a partial thickness rotator cuff tear. This pathology was investigated further and ultimately treated by Dr Herald through surgery. The operation report confirms that the applicant did in fact have a full thickness tear and other pathology at the left shoulder.
One of the challenges for the applicant in discharging his onus in relation to the disputed cervical spine injury is the lack of contemporaneous medical evidence of cervical symptoms being reported during the period of his employment.
The applicant’s evidence is that he first noticed recurring cervical spine symptoms in around 2016. The applicant says he did report those symptoms to his employer and treating general practitioner at the time. There is, however, no record from the respondent or clinical notes from the applicant’s general practitioner to corroborate this claim.
There is evidence of radiological investigation of the applicant cervical spine in February 2016 at the request of Dr Koutsoulis. The report of that investigation does not, however, contain any history or clinical notes. There is no evidence from Dr Koutsoulis before me with regard to the nature of the complaint which prompted the referral for investigation. It is noted, however, that the 2016 investigation revealed multilevel spondylosis and neural exit foraminal at C4/5, C5/6 and C6/7 narrowing.

Symptoms potentially consistent with a cervical spine injury were reported from an early stage. In an email from Dr Sibanda to the insurer on 16 August 2017, Dr Sibanda described “tension to left shoulder to neck” and associated headache after repetitive use of the left arm. There are, however, no clinical records from Dr Sibanda and no other mention of cervical symptoms in Dr Sibanda’s correspondence, including his more detailed report to the insurer. The respondent submits that this is because the applicant did not report neck symptoms to Dr Sibanda.
The possibility of a work injury to the neck was only investigated after the surgery performed by Dr Herald failed to alleviate all of the applicant’s symptoms. Dr Herald noted in his report on 18 June 2018 that the applicant was “still” having problems with his left hand. The applicant submits that this language indicates that Dr Herald was aware of hand symptoms previously. Dr Herald expressed concern at that point that the applicant’s symptoms were originating at the elbow or the neck including a possible cervical disc prolapse. This concern prompted further investigation of the cervical spine including an MRI to investigate left hand paraesthesia and possible cervical myelopathy. The MRI revealed degenerative change at the cervical spine and the applicant was referred to neurosurgeon Dr Donnellan.
In his first report on 10 October 2018, Dr Donnellan described an insidious but progressive deterioration in the strength of the shoulder and hand over the last year or so, poor grip strength, intermittent sensory disturbance and paraesthesia in the hand, as well as neck pain and intermittent headache. The report of a bone scan performed at the request of Dr Donnellan on 6 November 2018, records a history of neck pain “for 10 months” following a left shoulder injury.
This review of the contemporaneous medical evidence indicates that while symptoms such as arm pain, tension to the neck, headaches and problems with hand paraesthesia appear to have been reported to Dr Sibanda and Dr Herald prior to the left shoulder surgery, the first clear reports of neck pain and first investigation of the cervical spine since the February 2016 investigation, were not recorded until after the left shoulder surgery.
The respondent says the delay in reporting and investigation of neck pain until mid-2018 is significant, given the applicant alleges an injury with a deemed date of 11 May 2017 resulting from the nature and conditions of his employment.
In considering the contemporaneous medical evidence, the respondent referred me to the decision in Department of Education and Training v Ireland[9] where the President, Keating J found:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
[9] [2008] NSWWCCPD 134.
The value of contemporaneous evidence has been repeatedly endorsed by the courts: Watson v Foxman[10] and Onassis v Vergottis[11]. In the latter case, Lord Pearce commented upon what is often recollected and said by witnesses, many years after an event, as opposed to what is contemporaneously recorded in documents at the time of the event, in the following terms:

"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 the 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."
[10] (1995) 49 NSWLR 315.
[11] (1968) 2 Lloyds Report 403.

In the present case, however, the applicant has provided a coherent explanation for the delay. The applicant says his shoulder symptoms were initially more prominent than his neck pain. This account is credible given the significant pathology at the left shoulder recorded in Dr Herald’s operation record. When his symptoms did not resolve with the surgery, other causes for the applicant’s ongoing symptoms were considered, and the neck pain became more prominent. The applicant does not claim to have complained of a work injury to the cervical spine prior to this point. The contemporaneous medical evidence is therefore consistent with the applicant’s account.
The applicant’s explanation and a causal relationship between the neck symptoms and employment with the respondent have been accepted by his doctors. Dr Donnellan has recorded that the applicant experienced a range of symptoms involving the shoulder and hand which occurred insidiously and progressively deteriorated. These included poor grip strength, intermittent sensory disturbance and paraesthesia in his left hand, as well as neck pain and intermittent headache. In his report to the applicant’s solicitors dated 25 September 2020, Dr Donnellan said the neck injury was related “to the initial injury” but obscured by the concomitant shoulder injury.
The respondent’s submissions suggested that this phrasing in Dr Donnellan’s report suggested that he was of the understanding that there was a frank or traumatic injury to the left shoulder. Reading the report as a whole and together with Dr Donnellan’s other progress reports, I am not satisfied that this is a correct interpretation of Dr Donnellan’s report. Dr Donnellan clearly and consistently set out a history of progressive deterioration and insidious onset of symptoms.
Dr Nair also gave the opinion that the pathology at the applicant’s cervical spine explained both his neck and upper extremity symptoms. Dr Nair said there was “a clear and unambiguous nexus between the cervical condition and the applicant’s workplace as of January 2019”.
The respondent’s submissions suggested that the reference to January 2019 in Dr Nair’s report was indicative of some confusion in Dr Nair’s mind as to the timing and nature of the applicant’s employment and the shoulder injury. Reading that report as a whole, I am again not satisfied that this is an accurate interpretation. I accept that the reference to January 2019 is simply a reference to the date on which Dr Nair examined the applicant. Dr Nair said both the neck and left shoulder were injured as a consequence of employment with the respondent.
The applicant’s medicolegal expert, Dr Bentivoglio reached the same conclusion. Dr Bentivoglio said the condition at the applicant’s cervical spine was “quite consistent” with the work the applicant had been doing and the history provided to him.
Dr Bentivoglio’s history was of slow developing shoulder and left arm pain 12 months prior to 11 May 2017. The applicant had experienced numbness of his hand prior to the shoulder surgery. When the surgery had not significantly helped the applicant’s pain, the applicant was referred to a neurologist and subsequently Dr Donnellan and told that his pain was coming from his neck. Investigations and Dr Bentivoglio’s examination were consistent with cervical spondylitic disease and left cervical brachialgia secondary to a left C6 and C7 nerve root compression.
Dr Bentivoglio expressed the opinion that the applicant’s work had been a general aggravating problem for the degenerative disease in his cervical spine, noting the applicant’s employment with the respondent for 17 years. Although Dr Bentivoglio used the language of “substantial contributing factor”, rather than “main contributing factor” it is clear from the language used that Dr Bentivoglio considered that there was an injury in the nature of an aggravation and exacerbation of the degenerative disease at the applicant’s cervical spine consistent with s 4(b)(ii). It may be noted that no other causes of an aggravation or exacerbation of the cervical spine disease appear on the evidence before me.
The only opinion contrary to the applicant’s case is that expressed by Dr Carney. Dr Carney also took a history of a slow onset of symptoms starting from 2016 including pins and needles affecting the palm of the hand and fingers and later the applicant’s arm. The applicant told Dr Carney that his neck soreness was felt a bit before the shoulder operation but was worse after the operation.
Although this history was entirely consistent with all of the other evidence, Dr Carney considered the applicant to be an “extremely vague historian” and said it was difficult to get “any remotely consistent history of the onset of symptoms”. Dr Carney’s view of the history provided to him suggests that he may have been looking for a particular injurious event. That Dr Carney’s attention may have been erroneously directed is borne out in the opinion given later in his report that there was “no evidence of an injury to the neck at work”. Nor did Dr Carney consider there was likely to be a consequential condition resulting from the left shoulder injury.
Although Dr Carney did expressly state that it was very unlikely that employment had aggravated the applicant’s degenerative cervical spine condition, no explanation of that opinion has been provided. Dr Carney did not engage with the consistently given history of a gradual onset of symptoms during employment. Dr Carney did not engage with the nature of the applicant’s work duties. Dr Carney did not explain why he reached a different view on this question from every other doctor who has provided an opinion in the applicant’s case.
After carefully weighing the evidence, I prefer the opinions given by the applicant’s treating surgeons and Dr Bentivoglio over the opinion given by Dr Carney.
Although none of the applicant’s doctors have expressed an opinion in the precise language used by s 4(b)(ii), in particular the requirement that employment be “the main contributing factor” to an aggravation or exacerbation of the degenerative disease at the cervical spine, I am satisfied that their opinions are consistent with that test.
I am satisfied, on the balance of probabilities, that the applicant has sustained an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent, in the nature of an aggravation or exacerbation of a disease to which employment was the main contributing factor. The applicant has sustained an injury at the cervical spine pursuant to s 4(b)(ii) of the 1987 Act.
In the absence of any submissions to the contrary I accept that the deemed date of 11 May 2017, relied on by the applicant pursuant to s 16 of the 1987 Act is appropriate.

Proposed surgery

Having found that the applicant sustained a compensable injury at his cervical spine, it is necessary to consider whether the respondent is liable to pay for the surgery proposed by Dr Donnellan.
Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
In Diab v NRMA Ltd[12] Roche DP, referring to the decision in Rose v Health Commission (NSW)[13], set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
[12] [2014] NSWWCCPD 72.
[13] [1986] NSWCC 2; (1986) 2 NSWCCR 32.

“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A—C:
…
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.’”

The Deputy President also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service[14]:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[14] [1997] NSWCC 1; 14 NSWCCR 233.

Deputy President Roche found:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”

The evidence from Dr Donnellan indicates that he recommended the surgery now claimed after consideration of the 2018 MRI and after ordering further investigations including x-rays, a CT scan and a bone scan of the cervical spine. An MRI of the brain was also ordered to exclude that as a source of the applicant’s symptoms.
In his report of 10 October 2018, Dr Donnellan said he would consider offering the applicant steroid injections to help with his symptoms after reviewing the further investigations. However, upon reviewing those investigations, and noting intense uptake in the C5/6 intervertebral disc and noting the disc fragment compressing on the left C7 nerve root shown on the MRI, Dr Donnellan recommended that the best course for the applicant was a C5/6 and C6/7 Anterior Cervical Discectomy and Fusion.
The applicant, who had expressed a reluctance to proceed with cervical spine surgery sought a second opinion from Dr Nair. Dr Nair agreed with Dr Donnellan’s diagnosis and recommendation and expressed the opinion that the surgery was reasonable and necessary.
Dr Herald noted in June 2020 that both surgeons had recommended the surgery. Without it, the applicant was told he would have increasing weakness and pain down his left upper limb. The applicant continued to have neck pain, left-sided face pain, and pain and numbness radiating down his left arm.
The applicant did, however, report to Dr Herald that he felt the pain in his shoulder had gotten worse. Dr Herald considered it appropriate to investigate that further with an ultrasound and subacromial injection. Although the respondent submitted that it was not clear whether this had been performed, there is in the ARD a report confirming that it was done on 25 June 2020. Although I have no opinion from Dr Herald considering the results of the ultrasound and injection, nothing on the face of that report suggests a further tear although there was some evidence of bursitis.
Assuming for present purposes that some degree of the applicant’s pain is arising from shoulder pathology, that would not detract from the second diagnosis of cervical pathology, aggravated by employment with the respondent, causing neck, arm and hand symptoms. It has been accepted that the applicant has both a shoulder injury and a cervical spine injury. I do not see any indication in Dr Herald’s most recent report that the cervical spine pathology would not account for at least some of the symptoms experienced by the applicant.
The applicant’s medicolegal expert has given an opinion that the surgery proposed by Dr Donnellan is potentially reasonably necessary treatment for the applicant’s cervical spine condition. As noted by the respondent, Dr Bentivoglio did consider the applicant should attempt conservative measures, including physiotherapy and periradicular nerve blocks before proceeding to surgery.
The evidence indicates that the applicant did undergo physiotherapy when his symptoms were first reported. There is no evidence before me of more recent treatment by physiotherapy or physiotherapy directed specifically at the cervical spine. There is also no evidence of the applicant undergoing periradicular nerve blocks. Steroid injections were originally contemplated by Dr Donnellan as indicated above. After reviewing the further investigations, however, he recommended the surgery. The change in approach is not further explained by Dr Donnellan but it is supported by Dr Nair.
Dr Carney has also expressed an opinion that the procedure proposed by Dr Donnellan might relieve some of the applicant’s symptoms, although he considered those symptoms were solely due to degenerative changes. Dr Carney did, however, find no evidence of radiculopathy or other problem in the cervical spine likely to respond to fusion with foraminal clearance. It is not clear in the circumstances what symptoms Dr Carney considered might be relieved by the procedure. It should also be noted that Dr Carney’s findings on examination were vastly different to those recorded by the applicant’s doctors in that he considered many of the applicant’s reported symptoms to be “non-organic”. As a result, he considered the procedure to be “high risk”. The unexplained discrepancies in Dr Carney’s report lead me to give it less weight.
In weighing all the evidence, I note that the availability of alternative treatment such as that suggested by Dr Bentivoglio does not necessarily render the proposed treatment unreasonable. There is acceptance by all of the doctors that the procedure could potentially be effective in relieving at least some of the applicant’s symptoms. None of the doctors have suggested that the procedure is unusual or inappropriate treatment for the pathology revealed on the radiological investigations. The costs of the treatment are considerable, but not unusual.
After careful consideration, I am satisfied on all the evidence that the surgery proposed by Dr Donnellan is, at the present time, reasonably necessary as a result of the cervical spine injury found above.
There will be an order for the respondent to pay the costs of and incidental to the surgery proposed by Dr Donnellan in accordance with s 60 of the 1987 Act.

SUMMARY

The applicant sustained an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent pursuant to s 4(b)(ii) of the 1987 Act.
The C5/C6 & C6/C7 Anterior Cervical Discectomy and Fusion surgery proposed by Dr Donnellan is reasonably necessary as a result of the injury.
The respondent to pay the costs of and incidental to the proposed surgery in accordance with s 60 of the 1987 Act.

Rachel Homan

MEMBER

8 March 2021