McGarry v Potez Pty Ltd (in liquidation) t/as Essential Hygiene Services

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McGarry v Potez Pty Ltd (in liquidation) t/as Essential Hygiene Services [2024] NSWPIC 331
APPLICANT:	Thomas McGarry
RESPONDENT:	Potez Pty Ltd (in liquidation) T/A Essential Hygiene Services
MEMBER:	Rachel Homan
DATE OF DECISION:	24 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted injuries to left and right shoulders in a fall; whether cervical spine injury in same event; significant delay in reporting injury to cervical spine; physiotherapy notes demonstrate symptoms and treatment at cervical spine approximately six weeks after injurious event; Onassis v Vergottis and Jowett v S & R Jowett Pty Ltd considered; Held – applicant sustained cervical spine injury; matter remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his cervical spine on 6 May 2021 pursuant to ss 4(a) and 9A of the Workers Compensation Act 1987. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 6 May 2021 Body parts: cervical spine right upper extremity (shoulder) left upper extremity (shoulder) Method: whole person impairment. 3. The materials to be referred to the Medical Assessor are to include all those admitted and considered in making this determination, together with this Certificate of Determination and accompanying statement of reasons.

STATEMENT OF REASONS

BACKGROUND

Mr Thomas McGarry (the applicant) was employed by Potez Pty Ltd (in liquidation) T/A Essential Hygiene Services (the respondent) as a sales manager.
On 6 May 2021, the applicant fell on a gravel surface while in the course of his employment. The respondent’s insurer accepted liability for an injury to the applicant’s right shoulder in the fall. The applicant claims that he also injured his left shoulder and cervical spine in the same incident.
A claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) was made on 21 September 2023. The applicant relied upon an assessment of both shoulders and the cervical spine made by orthopaedic surgeon, Dr James Bodel, on 19 September 2023.
The claim was disputed by the respondent’s insurer in a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 19 December 2023. Liability for any injury and/or consequential condition at the left shoulder and cervical spine was disputed.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 22 February 2024. The applicant seeks lump sum compensation in accordance with Dr Bodel’s assessment.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 16 May 2024 in Sydney. The applicant was represented by Mr Carney of counsel, instructed by Ms McKay. The respondent was represented by Mr Stockley of counsel, instructed by Ms Kaur. A representative from the insurer was present.
During the conciliation phase of the proceedings, the respondent conceded that the applicant had sustained an injury to his left shoulder in the event on 6 May 2021.
Submissions were heard in respect to an objection to the admission of a report prepared by a physiotherapist at Balmain Sports Medicine, dated 19 April 2024, attached to an Application to Admit Late Documents lodged by the applicant on 23 April 2024. After hearing submissions, the Commission determined to admit the report pursuant to r 67(4), for reasons given orally and recorded on the transcript.
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 sustained an injury to his cervical spine on 6 May 2021 pursuant to ss 4(a) and 9A of the 1987 Act, and
(b) the degree of permanent impairment resulting from the injury on 6 May 2021.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 23 April 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements prepared by him on 22 February 2024 and 22 April 2024.
In his first statement, the applicant described some previous symptoms at his right shoulder in 2019. The applicant had been referred for an ultrasound of the shoulder but the symptoms resolved and the shoulder was asymptomatic as at May 2021.
The applicant described the incident on 6 May 2021. The incident occurred in the main driveway of Gladstone Bowling Club in Balmain where the applicant had been attending appointments. It had been raining heavily with thunderstorms that day.
The applicant left the club with his laptop bag, which was quite heavy, strapped over his right shoulder. The applicant was walking quickly to his car due to the rain. The applicant slipped on wet, loose gravel, losing his footing. The applicant said his laptop strap fell off his shoulder onto his right arm inside the elbow area pulling him forward. The applicant extended his arms to avoid landing on his face. The applicant fell onto both hands and felt and heard two very loud cracks in both shoulders at the same time. The skin on both of the applicant’s hands was grazed. Due to the weight of the bag on the applicant’s right hand side, he fell onto his right shoulder after his hands and shoulders took the brunt of the fall.
The applicant went home and took Nurofen. The following morning, he remained in a lot of pain, particularly at the right shoulder and attended his general practitioner.
The applicant told his general practitioner what had happened, explaining that he had fallen with his hands outstretched and that on impact he heard a crack in both shoulders. The applicant’s main concern at that point was his right shoulder, which was extremely painful.
The applicant was advised to undergo an ultrasound but did not do so initially as he felt pressured to return to work. The applicant continued to work with pain in both shoulders and arms, particularly on the right side. The applicant took Nurofen continuously to manage the pain. The applicant felt he had no option financially but to keep working and wait for his injury to improve.
On 20 May 2021, the applicant was feeling intense pain and pins and needles all down his right arm. As the applicant was driving to a meeting, the pain was so bad that his right arm was shaking uncontrollably and he felt unsafe driving. The applicant made an appointment to see his general practitioner. The applicant’s focus remained his dominant right arm and shoulder, which was intensely painful. The pain in the applicant’s left arm and shoulder was more of a dull ache but was aggravated by driving.
The applicant underwent x-ray and ultrasound investigations and received an ultrasound guided bursal steroid injection. The applicant underwent a further injection to the right shoulder and ultrasound of the left shoulder in June 2021. An ultrasound guided injection to the left shoulder was subsequently performed. The applicant commenced physiotherapy treatment shortly afterwards. The applicant was referred for MRI scans of both shoulders in September 2021.
The applicant said he was increasingly conscious of neck pain towards the end of 2021. This extended to both his right and left shoulders and he reported this to his treatment providers. The applicant was referred to a shoulder specialist, A/Prof Mark Haber and first consulted him on 29 November 2021. The applicant underwent repeat MRI scans of his shoulders.
The applicant underwent arthroscopic rotator cuff surgery to his right shoulder on 6 June 2022, followed by a period of rehabilitation, during which time the applicant wore a sling most of the time. The applicant said his recovery was slow but he gradually regained motion to his right shoulder and his pain levels reduced after about three months.
Although surgery to the left shoulder was recommended, the applicant preferred to take a non-surgical approach.
The applicant said he continued to experience pain, stiffness and lack of movement in his neck, shaking in both hands, pins and needles and difficulty lifting or carrying anything but light weights.
In his supplementary statement, the applicant said that at the time of his fall onto outstretched hands he jarred his neck in addition to injuring his shoulders. The applicant said he could recall feeling generally sore all over.
The applicant said the injury occurred during the COVID pandemic and access to healthcare was more difficult. There was a delay in seeing a physiotherapist and the applicant had to wait for approval from the insurer. Once the applicant commenced physiotherapy, he was treated at both his neck and shoulders.

Injury notification

An accident record form completed on 20 May 2021 described the original incident on 6 May 2021 as follows:
“I made a dash to my car and my bag fell off my shoulder onto my arm. I lost balance and fell onto my side and injured my arm and shoulder.
Since the original incident at Gladstone Park I had constant pain in my right arm, this became decidedly worse by 20/5/21.”
The form noted that the applicant was feeling intense pain and pins and needles all down his arm.

Treating evidence

A handwritten clinical note recorded by the applicant’s general practitioner, Dr Eli Zeltzer, on 7 May 2021 referred to an injury in a fall causing damage to the right shoulder.
Notes were made in relation to the injury again by Dr Zeltzer on 11 May 2021, 21 May 2021 and 25 May 2021, on which occasion the applicant was apparently referred for X-ray. On 31 May 2021, the applicant was referred for ultrasound guided injection to the right shoulder. A “workers comp” injury to the right and left shoulders was noted on 4 June 2021.
Further notes recorded by Dr Zeltzer in June 2021 referred to both shoulders and pain down both arms to the elbow. The applicant was noted on 24 June 2021 to be starting physiotherapy in Rozelle in respect of both shoulders “next week”.
Certificates of capacity issued by Dr Zeltzer described an injury to the applicant’s “right shoulder” only.
Physiotherapy records from Balmain Sports Medicine include a referral dated 10 June 2021 from Dr Zeltzer seeking assistance with problems related to “both shoulders”.
The clinical record of a physiotherapy appointment on 24 June 2021 recorded the applicant’s reason for visit as,
“I had a serious fall and damaged my shoulders and tore ligaments in both arms, I've had guided…steroid injections into both shoulders but I'm still in severe pain.”
A diagrammatic representation of the applicant’s pain recorded on that date shows symptoms from the base of the neck extending to the applicant’s wrists on both sides.
Ms Kate Reardon recorded a further physiotherapy appointment with the applicant on 30 June 2021 noting a history as follows:
“Had a fall at work in early May 2021, and injured bilat shoulders. Was carrying a heavy laptop bag, and was walking outside in heavy rain. FOOSH injury both hands, then landed onto right shoulder.
Went to GP the next day, who advised rest for 4/52. Pt had just started new job, and took only 1/52 off work. Pain worsened. GP referred for USS & XR of both shoulders, and for cortisone injection bilat shoulders.
Cortisone L) shoulder 24th June (6/7 ago); and R) shoulder 2/52 ago.
C/o ‘hardly able to do anything’ due to pain severity. Occasional P&N in arms since injury”
The applicant was noted to be very tender on palpation throughout the bilateral “UTs”. The treatment plan noted was :
“RN 4/7. MT for Cx and bilat shoulder pain. Long appmt needed.”
In a letter to Dr Zeltzer, dated 30 June 2021 Ms Reardon, reported,
“Following a comprehensive physiotherapy assessment on 30/06/2021 TOM's provisional clinical presentation would suggest bilateral rotator cuff strains +/- tendinopathy, with neural sensitivity.”
At a physiotherapy consultation on 4 July 2021, observations were recorded in relation to the “Cx” including pain referred into the bilateral upper extremities on extension and rotation as well as a reduced range of movement on lateral flexion. The applicant was noted to be “[v]ery TOP L>R Cx; and bilat posterior cuff.”
Similar notes were recorded on 7 and 15 July 2021 and 18 August 2021.
A workplace assessment report performed on 27 July 2021 referred to the diagnoses at the applicant’s right shoulder and left shoulder, although it was noted that liability was to be confirmed with regard to the left shoulder. The injurious event was described as follows:
“Mr McGarry was in the office and leaving for an appointment whilst it was raining. His computer fell out of his arms and he had attempted to catch it with his forearm. However, due to the weight of the bag, Mr McGarry fell to the ground and landed on his right shoulder where he felt immediate pain.”
At a physiotherapy consultation on 23 August 2021, it was noted that the applicant complained of dizziness and nausea. Objective findings in relation to the cervical spine were noted as follows:
“Cx AROM:
Fl= nil issues
Ext-= 1/2. ROM, pt denies pain
Rot L= 1/2 ROM, pain left UT and right forearm. R= 1/2 ROM, pain in right UT.
LF L=1/2 ROM, pain ipsilateral neck and UT. R= 1/4 ROM, pain ipsilateral neck and UT.”
On 26 August 2021 Ms Reardon noted,
“Pt C/O bilat upper limb pain (neck, arms and forearms).”
Findings and treatment of the cervical spine continued to be noted in the physiotherapists’ records. On 29 September 2021, it was noted that the applicant complained of pain with rotation bilaterally and lateral flexion bilaterally at the cervical spine. Pain was felt at C7 bilaterally. On 6 October 2021, it was noted that the applicant complained of pain in the neck and having trouble sleeping.
In a letter prepared for the insurer by A/Prof Mark Haber on 29 November 2021, the applicant’s symptoms were described as including “severe pain in my arms, neck and shoulder”.
In further letters to the insurer dated 9 and 14 December 2021, A/Prof Haber noted that the applicant’s presenting problem included left and right shoulder pain and “diffuse neck pain”. The applicant was diagnosed with bilateral rotator cuff repairs. A request for approval for left shoulder surgery was made in the report on 14 December 2021.
By late March 2022, the physiotherapy records focused predominantly on the shoulders.
The applicant underwent surgery to his left shoulder in June 2022.
A lengthy appointment was recorded with a new physiotherapist, Ms Kristin Witt on 28 June 2023, at which the applicant reported “ongoing neck pain”. Stiffness from C1 to C7 was noted. Physiotherapy treatment thereafter continued to include the cervical spine.
The applicant’s neck was noted to be particularly sore after a holiday in Thailand in August 2023.

Dr Bodel

The applicant relies on a medico-legal report prepared by orthopaedic surgeon Dr James Bodel, dated 19 September 2023.
Dr Bodel described the original incident as follows,
“He was holding the laptop over his right shoulder and an umbrella and he slipped and fell falling forward and landing on his outstretched hands. He had an immediate onset of pain in both shoulders and he felt a painful popping sensation in each shoulder as he landed. He also jarred his neck.”
Dr Bodel observed that the applicant still reported neck pain but had never been referred to spinal specialist for management of his neck pain.
The applicant was noted to have had no prior problems with either shoulder or the neck.
Dr Bodel recorded his findings on formal physical examination as follows:
“He does have tenderness in the trapezius muscles at the base of the neck on the right side and guarding over the top of the right shoulder. He has a restricted range of neck flexion, extension and rotation in all directions and this is most restricted on rotation to the left.”
Dr Bodel made a diagnosis of aggravated degenerative disc disease in the cervical spine.

Dr Millons

The respondent relies on a medico-legal report prepared by orthopaedic surgeon, Dr David Millons on 1 November 2023.
Dr Millons recorded that the applicant denied any problems with his neck or shoulders prior to 6 May 2021. Dr Millons took a history of the injurious event as follows:
“He was negotiating a gravel path and as he was hurrying along, the bag started to slip off his right shoulder. He reached out with his right arm to hold onto it and in that same moment lost his footing and went to the ground, landing heavily on his outstretched hands. He was aware of immediate pain in both shoulders and a resounding crack in each shoulder as he hit the ground.”
With regard to neck symptoms, Dr Millons noted:
“Mr McGarry has continual pain in the neck which radiates across the tops of both shoulders. His neck is painful and stiff. It hurts him particularly to look up. Driving his car has proved difficult, particularly looking from left to right but because of his ongoing issues and medication, he is not driving just now.”
On clinical examination, Dr Millons found:
“There is quite marked tenderness through the cervical spinous processes, across the trapezii and across to the upper vertebral angles of both scapulae. Flexion brings his chin two finger breadths from the sternum. Extension and rotation are around one third normal range. Lateral flexion is just a jog. More pain is caused on looking to the right than to the left and tilting the head to the left than to the right. Movements are restricted by pain and stiffness.”
Dr Millons noted that there did not appear to have been any investigations involving the neck.
Dr Millons noted that he had been asked to comment on whether there was any injury or consequential condition affecting the neck. Dr Millons observed,
“All his problems seem to have come about as a result of the same fall with him landing on his outstretched hands, jarring both shoulders, having pain in the shoulders and with there being clearly issues across the shoulder girdle and into the neck.”
Dr Millons said the applicant probably had some constitutionally based degenerative changes of the cervical spine but his problems with the neck appeared to have been present since the fall. There was nothing in particular to suggest that the problems in the cervical spine related to anything other than the described fall.

Applicant’s submissions

The applicant referred to the description of the incident on 6 May 2021 set out in his first written statement. The applicant lost his footing and fell onto both of his hands and felt loud cracks.
Although the applicant did not refer to an immediate onset of symptoms in his neck in his first statement, this was addressed in his supplementary statement. In his supplementary statement, the applicant said he had jarred his neck and expressed the belief that it was injured at the time of the original incident. The main focus initially, was the applicant’s right shoulder, which was most painful.
The applicant referred to the clinical records of Dr Zeltzer and observed that the first mention of cervical symptoms appeared in the physiotherapy notes commencing in June 2021.

The applicant noted that neck pain was also reported to A/Prof Haber.
The applicant submitted that the most contemporaneous evidence of a neck injury was contained in the physiotherapy records. Within five weeks of the injury the applicant complained of symptoms and was treated at the cervical spine. The applicant’s first concern was the pain in his right shoulder. The applicant continued to complain of neck pain at the time he saw A/Prof Haber.
The applicant observed that both medico-legal experts had accepted the history given to them by the applicant. In light of this evidence, the Commission would accept that the applicant sustained an injury to his cervical spine in the event on 6 May 2021.

Respondent’s submissions

The respondent noted that the applicant’s first statement was prepared with the assistance of a solicitor on 22 February 2024, almost 3 years after the injurious event and after the first dispute notice had been issued. The applicant described hearing cracks in both shoulders and referred to the skin on both hands being grazed but made no mention of any neck symptoms occurring at the time of the original event.
The first statement did say that the applicant began to experience neck symptoms towards the end of 2021, however, this evidence was arguably unreliable because the physiotherapy notes recorded symptoms at an earlier time.
The applicant’s second statement expressed, for the first time, that he had “jarred” his neck and expressed the “belief” that the neck was injured in the original event. At no time did the applicant explain what his symptoms were on the day of the event or in the period immediately afterwards.
The respondent observed that the referral for physiotherapy from Dr Zeltzer referred only to the shoulders without any mention of the neck. The original history reported to Ms Reardon was of a bilateral shoulder injury following a fall on outstretched hands. No history or diagnosis was given with regard to any neck condition or injury.
The respondent noted that the applicant complained of a sore neck when he saw Ms Witt in August 2023 after a holiday in Phuket. The increase in symptoms could have been attributable to prolonged sitting on an aircraft. There was no mention of the genesis of the neck pain or suggestion that it was related to injury in Ms Witt’s notes.
The respondent observed that the pictograms in the physiotherapists’ notes delineated symptoms in both arms but were devoid of any reference to neck symptoms.
The account of the injury in the notification form completed on 20 May 2021 referred to symptoms in the right shoulder without any reference to an injury to the neck. The certificates of capacity issued by Dr Zeltzer were confined to the shoulder. The workplace assessment report also omitted any reference to the cervical spine in the original incident.
The applicant’s evidence did not explain what symptoms the applicant experienced in his neck on 6 May 2021. The most contemporaneous records were devoid of any reference to the neck in relation to the injurious event. Even the physiotherapists’ notes did not explain what happened to the applicant’s neck in the injurious event.
The respondent observed that Dr Bodel diagnosed an aggravation of degenerative changes in the cervical spine. The respondent queried whether the degenerative changes accounted independently for the applicant’s neck symptoms.
The respondent submitted that Dr Bodel and Dr Millons had provided opinions based on the history of neck injury provided to them. Their opinions were based on assumptions of fact. If those assumptions were not made out on the contemporaneous evidence, the expert opinions would not be of assistance to the Commission.

FINDINGS AND REASONS

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 relevantly 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…”
In the case of an injury pursuant to s 4(a) of the 1987 Act, the worker must also satisfy s 9A of the 1987 Act, which provides that no compensation is payable in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained an injury to his cervical spine. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[1] 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.”
[1] [2008] NSWCA 246.
The primary challenge for the applicant in discharging his onus in this case is the absence of contemporaneous complaints of symptoms in his cervical spine following the injurious event and the delayed association of the symptoms at his cervical spine with that event.
There is no reference to cervical spine symptoms in the first direct account of the injury from the applicant, being the accident record form completed on 20 May 2021.
Although the applicant consulted his general practitioner the day after the fall, and on a number of occasions thereafter, there is no contemporaneous record of a cervical spine injury in the general practitioner’s notes. The certificates of capacity issued by Dr Zeltzer make no reference to a cervical spine injury or symptoms.
At no time has the applicant been referred for radiological investigation of his cervical spine or to a spinal specialist. Dr Zeltzer did refer the applicant to A/Prof Haber for investigation and treatment of his shoulder symptoms.
The letter from Dr Zeltzer referring the applicant for physiotherapy for his shoulders is notable for the absence of any reference to the cervical spine. The history of the fall recorded by the applicant’s physiotherapist also omitted any reference to a cervical spine injury.
Despite the absence of any contemporaneous complaint of a cervical spine injury, symptoms at the applicant’s upper trapezius muscles, as well as restrictions of movement and associated pain at the cervical spine, were noted in the physiotherapist’s notes from the outset, that is, approximately six weeks after the injurious event. The cervical spine symptoms described in the physiotherapy notes were significant and persisting. Neck symptoms were also eventually reported to A/Prof Haber in late 2021.
The symptoms and restrictions recorded in the physiotherapists’ notes were broadly consistent with the physical examination findings recorded by both Dr Bodel and Dr Millons.
I am satisfied on this evidence that the applicant did in fact experience symptoms and restrictions at his cervical spine after the injurious event as found by his physiotherapists and the experts involved in this case.
Whether those symptoms and restrictions are causally related to the event on 6 May 2021 is less clear. The first evidence directly identifying a causal link between the cervical spine symptoms and the event on 6 May 2021 is the report from Dr Bodel in September 2023, prepared more than two years later. In the intervening period, despite multiple interactions with the insurer, including its rehabilitation providers, no indication was given that the applicant had sustained a cervical spine injury.
The value of contemporaneous evidence has been repeatedly endorsed by the courts: Watson v Foxman[2] and Onassis v Vergottis.[3] In the latter case, Lord Pearce commented upon what is often recollected and said by witnesses 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."
[2] (1995) 49 NSWLR 315.
[3] (1968) 2 Lloyds Report 403.
In Jowett v S & R Jowett Pty Ltd[4] Snell DP commented:
“The extent to which a delay or inconsistency in reporting complaints is significant will depend on the facts of a case overall, the nature of the medical condition at issue and the medical evidence. The allegation regarding a fall at the hospital involved the occurrence of a specific incident and (on one version of it) the left shoulder being dislocated. These are matters that would ordinarily be immediately apparent, unlike, for example, a condition of gradual onset. In the circumstances, evidence of contemporaneous complaint would be of potential relevance to whether an incident occurred and its nature.”
[4] [2022] NSWPICPD 42.
In the present case, the symptoms at the applicant’s cervical spine were of a nature that can sometimes be difficult to distinguish from those emanating from shoulder pathology. The early evidence includes reference to pain spreading from the shoulders down to the elbows and wrists, as well as weakness, tingling and numbness in the upper limbs.
There was clear, radiological and clinical evidence of a significant injury at the adjacent body parts. The injury resulted in a need for surgery to the right shoulder and a recommendation for surgery at the left shoulder. The applicant has given evidence that his primary focus in the immediate aftermath of the fall was the significant symptoms at his right shoulder, in particular.
In these circumstances, it would not be unusual for a concurrent cervical spine injury to be overlooked.
Although there are some inconsistencies in the way the injurious event was described in the evidence before the Commission, I accept that the injury involved a fall onto outstretched hands, exacerbated by the weight of the applicant’s falling laptop bag. As a matter of common knowledge and experience, the mechanism appears to be one consistent with a “jarring” injury to the applicant’s cervical spine.
As the respondent’s submissions noted, the applicant’s own evidence as to the precise mechanism or his experience of symptoms at the cervical spine in the event is sparse, even in his most recent statement evidence. The description of a jarring injury in the applicant’s supplementary statement is not one which appeared in the first statement prepared in anticipation of the current proceedings in February 2024.
There is, however, no evidence of any previous cervical spine injury or symptoms. There is nothing in the evidence to suggest any alternative cause for the significant symptoms and restrictions described in the physiotherapy and expert evidence. Notwithstanding the absence of any reported history of injury to the cervical spine, that body part was examined and treated from the outset as part of the physiotherapists’ management of the injury.
Both parties’ medico-legal experts have accepted that the fall on 6 May 2021 accounted for an aggravation of degenerative pathology at the applicant’s cervical spine. While those opinions were inevitably informed by the history provided to them, they are also based on the doctors’ own clinical findings as well as their expertise and experience.
Whilst the matter is not beyond doubt, after a careful weighing of the evidence, I am satisfied on the balance of probabilities that the applicant did sustain an injury to his cervical spine in the event on 6 May 2021 for the purposes of ss 4 and 9A of the 1987 Act.
There will be an order remitting the matter to the President for referral to a Medical Assessor for assessment of all body parts claimed.

[2024] NSWPIC 331

24 June 2024