Nacol v Kmart Australia Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nacol v Kmart Australia Ltd [2024] NSWPIC 39
APPLICANT:	Eelyana Nacol
RESPONDENT:	Kmart Australia Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	31 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; liability for injury to right elbow accepted; respondent disputed that the applicant had complex regional pain syndrome as a result of injury to right elbow and that she had sustained injury to cervical spine; no history until applicant’s statement in September 2023 that applicant jerked her neck when she bumped her right elbow in December 2020; no history obtained by any treating medical practitioner or independent medical examiner that applicant jerked her neck when she bumped her right elbow; applicant observed under surveillance to undertake activities inconsistent with her complaints; applicant explained inconsistencies as due to her taking opiates obtained using friends’ prescriptions and from her doctor uncle overseas; applicant’s credit in issue; consideration of Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, King v Collins, and Nguyen v Cosmopolitan Homes; Held – award for the respondent with respect to claim for injury to cervical spine; matter remitted to President for referral to Medical Assessor for assessment of right upper extremity and complex regional pain syndrome.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent with respect to the claim for injury to the cervical spine. 2. The matter is remitted to the President for referral to a Medical Assessor, pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 8 December 2020 – personal injury (b) Body systems/parts: right upper extremity (right elbow; complex regional pain syndrome). If complex regional pain syndrome is present, the Medical Assessor is to assess the applicant’s right elbow; right shoulder; and right wrist. (c) Method of assessment: whole person impairment 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Application to Admit Late Documents dated 24 October 2023, filed by the respondent, and attached documents (Reply); (c) Application to Admit Late Documents dated 20 December 2023, filed by the respondent, and attached documents, and (d) This Certificate of Determination and statement of reasons.

STATEMENT OF REASONS

BACKGROUND

The applicant, Eelyana Nacol (Ms Nacol) was employed by the respondent, Kmart Australia Limited (Kmart) as a retail assistant.
Ms Nacol sustained an accepted injury to her right elbow on 8 December 2020. She also claims to have sustained injury to her cervical spine and complex regional pain syndrome (CRPS).
On 10 December 2020, an incident report was completed by Mr Joel Robbins, an employee of the respondent.
Mr Robbins recorded the date of injury as 8 December 2020. The applicant had reported it on 10 December 2020.
The applicant “was recovering in footwear stepped down from safety step and hit her elbow/funny bone on the end of peg.” The injury was described as “nerve pain”. The outcome was “First Aid Injury”.
Mr Robbins recorded the nature of the injury as “Sprain, strain and other muscular injury > Muscular sprain or strain”. The bodily location was recorded as “Elbow”. The injury happened as a result of “Hitting stationary fittings/fixtures”. It involved an “Apparel arm.”
By letter dated 15 September 2022, the applicant’s solicitors made on her behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The applicant claimed the sum of $112,010 in respect of 35% whole person impairment (WPI).
On 1 November 2022, the respondent issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998.
The respondent disputed that the applicant had sustained injury to her cervical spine. It asserted that, in relation to the accepted injury to her right elbow, Ms Nacol was not eligible for lump sum compensation because the injury had not resulted in more than 10% permanent impairment.
The applicant lodged an Application to Resolve a Dispute (the Application) on 21 September 2023.
The applicant claimed that on 8 December 2020, she struck her right elbow on protruding metal shelving and jerked her cervical spine, sustaining injury. She had developed CRPS affecting her right upper extremity as a result of the injury. The injury was claimed to be to the right upper extremity; CRPS affecting the right upper extremity; and cervical spine.
The applicant claimed the sum of $112,010 in respect of 35% WPI as a result of injury to the cervical spine, right upper extremity, and chronic pain.
The respondent lodged its Reply as an attachment to an Application to Admit Late Documents dated 24 October 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) Whether the applicant sustained injury to her cervical spine on 8 December 2020.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference on 26 October 2023. Ms Azer appeared for the applicant, who was present. Mr Krieg appeared for the respondent, instructed by Mr Fraser of the self-insurer.
The respondent confirmed that it disputed that the applicant had sustained injury to her cervical spine. It accepted that she had sustained injury to her right elbow, and whether she had CRPS was a matter for a Medical Assessor.
I was informed that the respondent had served a Notice for Production on the applicant on 25 October 2023.
The applicant objected to complying with the Notice for Production.
I offered to determine the objection at the preliminary conference. Ms Azer advised that she preferred to rely on written submissions.
The parties were directed to lodge and serve written submissions on this issue and advised that at the conclusion of the time allowed for submissions, I would determine it “on the papers” before the conciliation/arbitration hearing.
The applicant’s objection to compliance with the Notice for Production was the subject of my determination dated 12 December 2013. The Notice for Production was wholly set aside.
The matter was listed for conciliation/arbitration hearing in person on 9 January 2024. Mr Malouf of counsel, instructed by Ms Azer, appeared for the applicant, who was present. Mr McManamey of counsel, instructed by Mr Krieg, appeared for the respondent. Both Mr Krieg and Mr Fraser of the respondent attended by the Teams platform.
The parties agreed that the medical dispute would be referred to a Medical Assessor, after the determination of the dispute; and, as regards the injury to the applicant’s right elbow, the referral should be made in respect of the right upper extremity (right elbow; CRPS) and the Medical Assessor should be advised that, if CRPS was present, the applicant’s right elbow, right shoulder, and right wrist were to be assessed.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Application to Admit Late Documents dated 24 October 2023, lodged by the respondent, and attachments (Reply), and
(c)    Application to Admit Late Documents dated 20 December 2023, including surveillance footage, lodged by the respondent.

FINDINGS AND REASONS

I have referred to the applicant’s evidence in my determination dated 12 December 2023. I will refer in these reasons to the evidence relevant to this determination.

Evidence of the applicant, Eelyana Nacol

The applicant’s statement is dated 20 September 2023.
She was in good health before the injury and had not suffered any earlier injuries or made any claims for compensation.
In around early September 2020, she experienced some mild neck pain with some sensory symptoms affecting her left upper limb.
She attended Dr Maya El Azzi and was referred for an MRI scan. She recalled that her symptoms resolved completely within around two to three weeks.
At the time of the injury, she was pain-free and had no symptoms of pain, stiffness, or discomfort affecting any region.
On 8 December 2020, she had stood on a stool to pull a metal shelf off the shelf wall. As she was stepping down off the stool, the posterior aspect of her right elbow banged into a metal shelving arm that was protruding from the shelf wall. She recalled that because of the sudden impact to her elbow, she jarred her neck.
She felt immediate pain in her right elbow, with pins and needles and numbness radiating down her forearm to her hand. She also experienced mild pain over the right side of her neck, but this was minor compared to the pain she experienced in her right elbow.
She recalled that in very early January 2021, the neck pain became intrusive, and she was encouraged by her physiotherapist to perform gentle neck exercises.
The manager she was working with at the time was from a different store. While he saw the incident and was aware of her injury, he did not report the incident or provide first aid.
She recalled that she was in significant pain for around 10 minutes, but her symptoms improved slightly, and she was able to complete her shift.
On the night of 8 December 2020, she recalled her symptoms began to worsen, and she began to experience significant pain affecting her entire right upper limb, as well as on the right side of her neck, associated with pins and needles and numbness affecting her entire right upper limb. As she tried to get ready for work [the next day], she could not move her arm, and asked her mother to help her.
She recalled trying to attend work on 9 December 2020 but could not cope. She informed a different manager, but nothing was done, and she was asked to continue work.
On 10 December 2020, she notified a different manager of her injuries, and was referred to the company nominated treating doctor, Dr John Barlow, general practitioner (GP). He reviewed her and referred her for X-rays of her right elbow on 10 December 2020.
Dr Barlow informed her that she suffered from internal soft tissue and nerve swelling and irritation. She recalled that she may have been prescribed Panadeine Forte.
Dr Barlow advised her and the manager that she must perform light duties only. However, the next day, the duties provided were not light and required her to lift and move heavy items. She asked to leave and consult her own GP.
She consulted Dr El Azzi on 11 December 2020. She was experiencing swelling, weakness and shooting pain affecting her entire right upper limb.
She was referred for an ultrasound of her right elbow, and to a neurologist, Dr Craig Presgrave, for nerve conduction studies of her upper limbs. She was referred for an MRI scan of her right elbow in late December 2020.
She continued to suffer with ongoing debilitating sensory symptomatology affecting her entire right upper limb, and ongoing right-sided neck pain, stiffness, and discomfort.
She was eventually diagnosed by neurosurgeon Dr Anil Nair in May 2021 with CRPS affecting her right upper limb. Prior to this, Dr (Jonathan) Herald had indicated she had CRPS. She was also diagnosed with a C5/6 disc protrusion with potential compression of the right C6 nerve root, following MRI scan on 29 March 2021.
She had been reviewed by specialists including Dr Herald, Dr Nair, Dr Presgrave, and Dr Tim Ho, pain medicine specialist.
She underwent inpatient stay at Mt Wilga Hospital under the care of pain medicine specialist Dr Glen Sheh between 5 September 2022 and 17 September 2022. It was not beneficial to her symptomatology.
She had seen pain medicine specialist, Dr Adam Mir, on 11 May 2023.
She attempted to return to work in February 2021 on restricted hours and duties but struggled to cope. Her right arm would frequently get knocked and bumped accidentally.
On 18 April 2021, a co-worker squeezed a spot between her neck and shoulder, which caused her to feel dizzy, excruciating pain and lose consciousness and be transported to hospital.
She ceased working on about 20 May 2021, due to symptoms of pain, stiffness, and discomfort.
She returned to restricted hours and duties in around late December 2021, primarily working from home, for 10 hours per week until March 2022, when she was upgraded to 15 hours per week.
She returned to in store duties in April 2022, for 15 hours per week, performing computer-based tasks. She was taking breaks every 10 to 15 minutes to avoid aggravating her neck and right upper limb condition. She used her left hand as she could not perform computer keyboarding with her right hand.
She struggled to cope and ceased employment in mid-2022. She had not returned to any gainful employment since then.
Because of her injuries, she was forced to delay her university studies in law, criminology, and criminal justice. She commenced a part-time preparation course in mid-2021 and in early 2022 commenced a part-time degree in criminal justice and criminology. She was studying one subject per semester and attending classes online. She was given special consideration because of her injuries affecting her right upper limb and neck.
She struggled to cope and had to defer her studies in the second half of 2022 and the first half of 2023. She returned to part-time studies, online, in May 2023. She struggled to concentrate for more than around 10 to 15 minutes at a time, because of her symptoms of chronic pain, fatigue, and reliance on heavy opiate-based analgesia on a day-to-day basis.
I have referred in some detail in my previous determination to the applicant’s response to the investigation reports and surveillance relied on by the respondent, and I will not repeat that evidence.
In summary, the applicant stated that the footage taken covered a short period; between June 2022 and early 2023, she had managed her symptoms by taking medication, including Panadeine Forte and Endone, which she obtained using the prescriptions of her friends and from her uncle, who is a doctor, overseas; and she was in the early stages of her relationship with her boyfriend and wanted to mask her symptoms and disabilities.
When she had to leave the house, for instance to get her nails done, the applicant took medications so that she could handle the pain, drive, or sit in bright and light environments.
Sometimes she just wanted some normality in her life, without having to wear a neck brace or move like a robot to protect her arm. She was told by everyone involved in her case to go out and do something that would make her feel a bit happy. She did her nails and got lash extensions to get somewhat of a normal look on her face, as every time she left the house people would ask if she was OK.

Desktop Investigation and Surveillance Reports – SureFact Australia

SureFact Australia provided a number of reports.
I have also referred in some detail to this evidence in my previous determination.
In summary, the applicant was observed taking part in such activities as driving; having her hair cut and styled in a salon; having a manicure and pedicure in a salon; vaping; typing with her right hand; and moving a box.
I have viewed the surveillance, which is accurately summarised in the reports.

Medical evidence

Advanced Health Medical Centre

On 10 December 2020, Dr Barlow recorded that the applicant had been fitting stock. She was walking down a step and hit her right elbow on a “barrel”. This occurred at “1100 hours today.” [sic].
An X-ray showed no fracture. The applicant was for “oice [assumed to mean ice] and voltaren.”

Restwell St Medical Centre and Advanced Health Medical Centre

On 10 September 2020, Dr El Azzi recorded that the applicant had “neck pain, left arm neuropathy, pain radiating to left hand, numbness.” This was worse at night. Dr El Azzi noted “Possible carpal tunnel? cervical disc pathology?”
The applicant was referred for MRI of her cervical spine and ultrasound of her left wrist.
The MRI was reported on 22 September 2020 as showing no evidence of disc protrusion or significant foraminal narrowing.
On 30 September 2020, Dr El Azzi recorded that the MRI and ultrasound were normal.
On 11 December 2020, Dr El Azzi recorded that the applicant’s injury happened yesterday [sic]. She was going down a step stool and hit her right elbow against the shoe stall. She felt it hit her “funny bone”. She felt neuropathy in the right arm. There was swelling/weakness and shooting pain radiating to the shoulder and down the arm to the fingers. The applicant had tried going to work but her pain flared up that day.
Dr El Azzi recorded tenderness on palpation of the right shoulder; painful shoulder arc on abduction and rotation; sensitivity to touch throughout the arm; decreased fist power and strength in elbow and shoulder flexion/extension.
Dr El Azzi’s impression was ulnar neuropathy with tendonitis and “Bursitis?”. The reason for contact was recorded as elbow swelling. The applicant was unfit for work and would need nerve conduction studies.
On 16 December 2020, Dr El Azzi recorded that elbow ultrasound showed tendinosis, muscle contusion. The applicant was wearing a shoulder sling for alleviation of symptoms. She had shooting neuropathy pain down the right arm/hand. She would need physiotherapy.
On 17 December 2020, Dr El Azzi recorded ongoing right elbow/arm pain. The applicant had a shooting sensation and decreased arm strength/power. She was referred for elbow MRI.
On 21 December 2020, Dr El Azzi recorded that the applicant was unable to book nerve conduction studies until January. The MRI report was pending. The applicant had ongoing right shoulder and arm radiculopathy/pain. She was unable to lift weight on grip strength in her right hand. She was to start physiotherapy.
Physiotherapist Ms Rebecca R Malek recorded on 29 December 2020 that the applicant had hit her right elbow against a metal shoe rack. She had pain in her shoulder and elbow and referred electrical pain into her hands. There was some tingling/numbness into her fingers. She had to sleep on her left [side].
Dr El Azzi recorded on 29 December 2020 that the applicant had ongoing right arm neuropathy, and weakness in grip strength and elbow flexion/extension against resistance. There was “Altered sensation to sharp and wool on right arm compared to left.” There was no muscle wasting.
Ms Malek recorded on 2 January 2021 that the applicant had ongoing right elbow pain with referral to the upper back and SCM (sternocleidomastoid). There was “LR pain in SCM”. Ms Malek noted “gentle neck stretches”.
On 8 January 2021, Ms Malek recorded that the applicant had ongoing right elbow pain with referral to the upper back and SCM. She had neck pains with headache.
On 20 January 2021, Ms Malek recorded that the applicant “Felt good for a couple of days, pain in L[eft] arm resolved. Pain returned on R[ight] after couple of days.”
Dr El Azzi recorded on 20 January 2021 that the applicant was complaining of ongoing right shoulder/arm weakness. There was numbness when squeezing hard. “Affects her upper trapezius and left shoulder pain”.
On 22 January 2021, Ms Malek recorded that the applicant had ongoing pain. “Sometimes a bit more manageable.” Her right “traps” [trapezius] and neck were sore, with headache.

Dr El Azzi recorded on 22 January 2021 that the applicant’s nerve conduction studies reported no significant abnormality. She still had right shoulder and arm weakness. She had neck and upper shoulder left trapezius stiffness “due to compensation”.
Dr El Azzi recorded on 29 January 2021 a case conference with “Chloe”. The applicant was to go back to work for 20 hours per week. She was unable to lift weight in her right arm. Dr El Azzi noted “Shoulder, neck pain.”
On 9 February 2021, Ms Malek recorded that the applicant was back at work. She had a little pain on the first shift, but it was manageable. The pain worsened on the second shift. Her arm turned purple and had a palpable soft lump near the wrist. The applicant had pictures which Ms Malek sighted.
On 15 February 2021, Dr El Azzi recorded that the applicant reported that the workplace did not adhere to her WorkCover certificate. She “ended up injuring her right arm”, causing “venous suppression, numbness and pain”. The applicant was to see a neurologist and orthopaedic specialist. “Possible brachial plexus neuropathy?”
On 18 February 2021, Dr El Azzi recorded that the applicant had scratches on her hand, related to folding tables. She had “venous swelling/numbness in whole hand.” She would need arterial duplex and shoulder MRI. Dr El Azzi noted “Thoracic outlet syndrome?”
On 19 February 2021, Ms Malek recorded that she had spoken with Daniel Abrams, clinical panel consultant from Wesfarmers. “Query CRPS/brachial plexus neuropathy.”
On 22 February 2021, Dr El Azzi recorded ongoing right sided arm and hand swelling, compared to the left, worse with trying to do any lifting. The applicant had right trapezius stiffness/shoulder pain. She was to have a shoulder MRI. She was unable to do any lifting. She had been using Tramadol prn (as needed).
On 25 February 2021, Dr El Azzi recorded ongoing shoulder pain and weakness. The applicant was pending neurologist review. She was to take Panadeine and Lyrica as needed.
On 2 March 2021, Dr El Azzi recorded right trapezius, shoulder/arm pain. The applicant was wearing an elbow brace. She felt weakness in the arm. She was taking Panadeine regularly.
Dr El Azzi recorded on 30 March 2021 that the applicant had continual pain and numbness in the right upper limb. “Radiating to shoulder/neck/trapezius muscles.” She had weakness in her hand.
On 6 April 2021, Dr El Azzi recorded CRPS. “Right arm, shoulder. Neck pain.” The applicant was using Panadeine prn.
On 13 April 2021, Dr El Azzi recorded that repeat cervical MRI showed C5/6 radiculopathy with disc bulge. “Right shoulder, arm pain radiation.” The applicant was taking Panadeine a few times per day.
On 28 April 2021, Dr El Azzi recorded “Shoulder, neck, elbow pain.” The applicant was not doing any lifting. “Anxiousness”.
On 16 June 2021, Dr El Azzi recorded that the applicant had right shoulder pain and radiculopathy. “Radiating t[o] neck, trapezius muscles and lower back”. She also had lower back pain. She was using Panadeine prn.
On 17 July 2021, Dr El Azzi recorded “ongoing neck, elbow, hand pain. Still getting random bruising, swelling over right upper limb.” The applicant was to continue Panadeine prn.
On 3 August 2021, Dr El Azzi recorded “muscular tension over scapula, shoulders, neck.”
On 16 August 2021, Dr El Azzi recorded that the applicant had seen Dr Ho, who had advised cortisone injection, pain program, and psychologist referral.
On 7 December 2021, Dr El Azzi recorded a case conference with “Nelly from rehab”.
The applicant had neck, upper shoulder, head, arm, and shooting pain to the hand. She was taking Panadeine “3 in days” and Nurofen four daily.
On 22 December 2021, Dr El Azzi recorded neck pain radiating to the scalp and upper limbs, weakness in the right [upper] limb and hand. The applicant was doing typing work at home and using Panadeine as needed.
On 27 January 2022, Dr El Azzi recorded ongoing neck and shoulder pain, radiating to the arm, with hand numbness and pain. The applicant was unable to lift. She was typing with frequent rest breaks.
On 4 February 2022, Dr El Azzi recorded that the applicant had returned to University. She had right upper limb neuropathy and a sensation of blacking out. “Neck pain”. Her Cymbalta was increased to 60g BD (twice daily). She felt she had had a few faints, secondary to pain.
On 22 February 2022, Dr El Azzi recorded neck, upper shoulder/arm pain, radiating to the hand.
On 2 March 2022, Dr El Azzi recorded ongoing neck pain, radiculopathy, neuropathy in the hand and arm, and decreased grip strength. The applicant was counselled on decreasing her opiate usage.
On 29 March 2022, Dr El Azzi recorded neck pain, upper arm radiculopathy, and shoulder stiffness.
On 4 April 2022, Ms Katherine Kuorence, physiotherapist, recorded that the applicant had had CRPS since December 2020. She had hit her elbow at work. It went numb. She went home to nap and woke with “extreme throbbing pain, shooting pain, P+N [assumed to mean pins and needles]/NB down to hands and fingers, swelling inner elbow. Kept throbbing and couldn’t move or use her arm that day or next.”
The applicant reported feeling 10/10 pain in her elbow, extending up to the right shoulder and arm “now, P+N, NB in all fingers and hand.”
The applicant had seen a psychologist a few times, “nice because she believed in her symptoms. Thinks she is not making it up in her mind.”
The applicant had had three injections/infusion that made it worse. She had tried to return to the gym but could not do a session without extreme fatigue, stress, and pain, “head pounding”. She had lost consciousness at work when a colleague pinched her shoulder.
The applicant felt that no one believed her. Her friends had “ditched her”. University had been good with helping her, as she could not study without symptoms. She wanted to get back to her usual self and studies.
On 8 April 2022, Dr El Azzi recorded “stress, anxiety”. The applicant needed a study time extension. She was advised on limiting codeine usage.
On 11 April 2022, Dr El Azzi recorded that the applicant had been taking Panadeine and had drug-related constipation.
On 21 April 2022, Dr El Azzi recorded a case conference with Nellie. The applicant was to trial 15 hours per week. She was still waiting to see the psychologist. “Codeine tolerance.” She needed to defer her studies.
On 4 May 2022, Dr El Azzi recorded that the applicant had had a fall at work last week after feeling unsteady. She had slammed the door accidentally on her head. Her mother bumped into her elbow and flared up her pain. She was advised on non-opiate pain management techniques.
On 5 May 2022, Dr El Azzi recorded that the applicant was unable to tolerate Tramadol and was to go back to Panadeine.
On 18 May 2022, Dr El Azzi recorded a case conference with Nellie/Sophia and the applicant. The applicant had a pain flareup. She had been taking four tablets of duloetine [assumed to mean duloxetine]. She was advised to cut down to two per day and add Endep at night.
On 24 May 2022, Dr El Azzi recorded that the applicant’s pain was worsening. She was requiring increased codeine throughout the day.
On 16 June 2022, Dr El Azzi recorded a flareup of right neck, trapezius, and arm pain. The applicant had cervical tenderness and was to trial a neck brace.
On 17 June 2022, Ms Justina Abdelsayed, physiotherapist, recorded that the applicant’s symptoms had been spreading, as far as the right thigh, and she had been experiencing more frequent flareups since returning to work following a year off. Her symptoms had also spread to “contralateral/L) UL and radiating to L) scapula.” She had been experiencing an exacerbation of right-sided neck pain for the past two days.
On 23 June 2022, Dr El Azzi recorded a case conference with Dr Sheh. He was concerned about a conversion disorder. The applicant had dizzy spells. It was difficult to examine her. There was “Nil wasting in her upper limb. Superficial allodynia. Guarded hand movement.”
On 29 June 2022, Dr El Azzi discussed with the applicant Dr Sheh’s assessment and report. Ms Nacol had been recommended for an in clinic rehabilitation two week program. She was advised on cutting down opiate usage and was to trial Norgesic instead. She felt her symptoms were disregarded by the specialist. She was provided with counselling on “conversion disorder vs CRPS diagnosis.”
On 6 July 2022, Dr El Azzi recorded a case conference with Dr Bolzonello. One possible option was a spinal stimulator, which needed “proactive action” from the applicant. Dr Bolzonello agreed the pain syndrome was triggered by the elbow injury. He “agrees CRPS”.
On 6 September 2022, Dr El Azzi recorded that the applicant was in rehabilitation. She “feels very judged”. They had been stopping analgesia, including Nurofen. She felt a flareup of neuropathy. She wanted to leave but was encouraged to give rehabilitation a full trial.
On 29 September 2022, Dr El Azzi recorded that the applicant felt her pain did not improve at all. She had CRPS, right upper limb neuropathy.
On 9 November 2022, Dr El Azzi recorded having received a call from Kmart injury management, with concerns about the applicant’s mental health. The applicant had reported some “suicidal ideation”.
Dr El Azzi contacted the applicant. She was very distressed, as the insurer had employed “PA” [sic] who had obtained photos of her at home brushing her hair, attending a hair/nail salon, and had informed her that liability was denied. She stated she had been using Panadeine and Endone, obtained “off market”.
Dr El Azzi advised the applicant she did not approve of any analgesia, especially opiates, obtained illegally, and used while not under medical supervision. The applicant had not reported to Dr El Azzi the use of such analgesics since she had weaned her off them earlier in the year.
The applicant reported she was using four duloxetine tablets a day, which was different to the reported dose she was advised to stay on, of 120mg per day.
The applicant denied any suicidal ideation or self-harm risk. She “just wants to make sure that I believe her”.
Dr El Azzi advised the applicant that doctors are usually patients’ advocates and believed what was reported to them, and what the physical examination reflected. They did not investigate and verify/deny if information was deliberately withheld or the examination “is purposefully guarded by the patient to mislead”. When she examined the applicant previously, she had signs confirming CRPS. She was advised to come in for a physical examination tomorrow.
On 10 November 2022, Dr El Azzi recorded that the applicant requested Panadeine, which she declined to give her. Dr El Azzi advised the applicant to be compliant with her treatment plan or that of the specialist, or the patient/doctor relationship could be broken.
The applicant reported that she used Panadeine/Endone only if she needed to when she had to perform heavier duties. She was to trial Norgesic instead.
The applicant could trial 20 hours a week of light duties. She had decreased motivation. She was advised on the return to work plan and the effect on her mental health.
The applicant had been using duloxetine 240mg. She was advised on weaning to 150mg per day only.
On 14 November 2022, Ms Nur Azam, physiotherapist, recorded having spoken to Ms Meredith Wenzel from the insurer. An independent doctor did not agree with the diagnosis of CRPS, and the insurer would not approve the applicant’s hand physiotherapy.
The applicant told Ms Azam that the rheumatologist she had seen previously, Dr Reider [sic: Reiter] initially diagnosed her with “permanent CRPS”. However, she had examined her again prior to her admission to Mt Wilga and changed her diagnosis.
After liaising with her lawyer, the applicant told Ms Azam that the insurer had sent a private investigator who had captured evidence of her performing activities of daily living (ADLs) to disprove her condition and provide evidence she was lying. Dr Reiter changed her diagnosis after this.
Ms Azam told the applicant she would liaise with her senior physiotherapist and GP to see whether anything further could be done.
On 17 November 2022, Dr El Azzi recorded that the applicant reported she had been weaning off analgesia. She was using Norgesic with good effect. She had had a pain flareup and deferred her University units. She felt trapezius and shoulder stiffness.
On 8 December 2022, Dr El Azzi recorded that the applicant complained of muscle spasms on the right neck, trapezius, shoulder, and arm. She requested Panadeine Forte, which Dr El Azzi declined. She was advised on using simple analgesia. She was awaiting approval for psychology and was to trial a return to work from next week. She could do a 20 hour week of light duties.
On 12 January 2023, Dr El Azzi recorded that the applicant had been taking 150mg per day of Cymbalta. She felt unable to wean further and reported withdrawal symptoms. She had difficulty obtaining approval for further treatments.
On 18 January 2023, Dr El Azzi recorded that the applicant felt withdrawal symptoms from cutting down duloxetine. She felt decreased motivation and high anxiety.
On 3 February 2023, Dr El Azzi recorded that the applicant was starting University part time. She had been sleeping poorly. There was “nil recreational drug use.” She still had decreased power in right [arm] compared to the left. There were sensory changes, with more burning sensation in the right hand. The applicant felt venous congestion on the right arm.
On 17 February 2023, Dr El Azzi advised the applicant to stay on 150mg of Cymbalta daily and use simple analgesia for pain relief.
On 23 March 2023, Dr El Azzi recorded that the applicant had multiple green, brown bruises over her right limb. She had shown Dr El Azzi photos on her phone of multiple such episodes. She was not using her arm much. “CRPS”. She was frustrated with her condition and lack of support.
On 13 April 2023, Dr El Azzi recorded that the applicant had only been able to complete about 12 hours of work per week. She was doing some online studies. She had low mood. She had been using Endone from her partner.
Dr El Azzi strongly advised against the use of opiates. The applicant could use Nurofen Plus ONLY in severe pain. (Capitalisation in original). They discussed pain management, muscle strengthening exercise, and referral to a specialist.
On 27 April 2023, the applicant reported a flareup of CRPS. She requested Endone, which Dr El Azzi refused.
On 4 May 2023, Dr El Azzi recorded that the applicant had neuropathic pain, “Causing her daily headache, migraine.” She was in tears. She was to use Gabapentin.
On 22 May 2023, Dr El Azzi recorded that the applicant had recurrent headache and migraine attacks, “Worse due to pain/stress ++”.
On 31 May 2023, Dr El Azzi recorded that the applicant had shooting pain in her arms. She was tolerating palexia with nil side effects.
On 15 June 2023, Dr El Azzi recorded that the applicant had ongoing neuropathy. “Complex pain syndrome”. She was to continue on palexia.
On 30 June 2023, Dr El Azzi recorded ongoing neuropathy. Palexia was helping a bit with pain relief, with nil side effects. The applicant had stiffness in the joints, causing her to minimise movements of her shoulder/arm.
On 1 August 2023, Dr El Azzi recorded an acute flareup of pain. The applicant was unable to straighten her back. She had shoulder and arm radiation/neuropathy. “Strong counselling on limiting opiate therapy”.

Dr Jonathan Herald – orthopaedic surgeon

Dr Herald reported to Dr El Azzi first on 15 March 2021.
Dr Herald recorded a consistent history of the injury. On the night of the injury, the applicant developed increasing pain in not just her elbow, but her whole right upper limb. She also noted swelling and altered colour.
The applicant underwent investigations of her elbow, which were essentially normal. She was now having severe pain affecting her whole right upper limb, including her neck, and starting to affect her left upper limb. She had noticed swelling in her arm and altered colour in her hands and fingers. She felt the pain was getting worse, and throbbing.
The applicant had been given Lyrica, as there was concern that she was developing pain syndrome, but she was unable to take it and was trying to manage with Panadol.
Dr Herald recorded on examination that the applicant had hypersensitivity affecting her whole right upper limb. She also had tenderness over her cervical spine and positive Phalen’s test to both upper limbs, although the left seemed to be functioning normally. She had altered colour in the hand.
Dr Herald’s assessment was that the applicant had right upper limb pain syndrome.
Dr Herald advised the applicant it may be worth having an MRI of her neck, to ensure she did not have a neural disc prolapse. He had referred her to a pain specialist and given her Endep.
Dr Herald had explained there was no organic cause for the applicant’s pain on MRI scans and X-rays. He was hopeful that with the Endep and advice of the pain specialist, her symptoms could be managed, and she would gradually get back to work. He had compounded some anti-inflammatory creams, as he was concerned about long term oral tablets, given the associated cardiovascular and gastrointestinal risks.
On 12 April 2021, Dr Herald reported to Dr El Azzi that the applicant continued to have pain in her whole right upper limb, and also had right sided face pain.
On examination, the applicant had altered sensation in her whole right upper limb, as it felt hot, and also had pain.
Dr Herald had told the applicant that the MRI was reported to show a C5/6 disc prolapse of the right side, and irritability that may be causing her symptoms.
Dr Herald opined that the applicant may require cortisone injections or RF (radiofrequency ablation) procedure, as it seemed the medications had not helped with her pain. He suggested she continue to see the pain specialist, but she told him it had been declined.

Dr Vidyasagar Casikar – consultant neurosurgeon

Dr Casikar was qualified by the respondent and reported on 17 May 2021.
Dr Casikar recorded a consistent history of the injury and subsequent events and treatment.
The applicant had eight weeks off work, and consulted Dr Presgrave, who arranged nerve conduction studies, which were normal. The pain continued to increase and spread to her shoulder, neck, and back.
Dr Herald had indicated the applicant probably had a CRPS. He arranged MRI of her neck. He felt that it showed a pinched nerve, which could explain her symptoms. He had recommended consultation with Dr Nair and a pain specialist, which had not yet taken place.
The applicant indicated that her hand experienced discolouration. She showed Dr Casikar a photograph showing significant discolouration of her right hand. A few days back, a friend squeezed her right shoulder. She could not move and lost consciousness, She was taken by ambulance to Bankstown Hospital.
The applicant was discharged in a wheelchair and advised to take Endone and that her blood pressure was low. She remained in hospital for eight hours. The doctor in charge indicated she had lost consciousness because of the severe pain.
The applicant said she had returned to work but was getting hot flushes in the right upper limb. She took Panadeine Forte. She stopped Lyrica because it produced reactions.
The applicant smoked socially. The gym was her main hobby.
On examination, the applicant was extremely tender over the right elbow and hand. She expressed severe anxiety when Dr Casikar tried to touch the area. He could not detect any colour changes. Movements of the right shoulder were reduced.
Dr Casikar diagnosed CRPS and soft tissue injury to the right elbow.
Dr Casikar opined that the applicant appeared to have developed CRPS following a very innocuous injury to her right elbow. The symptoms and clinical features were consistent with this diagnosis. The applicant required assessment and input by a pain specialist and psychologist.

Dr Herald had indicated there could be a neurological problem in the applicant’s neck and arranged for an MRI. Dr Casikar did not consider that her assessment indicated a neurological problem. He was unsure why Dr Herald suspected a neurological injury in the neck arising from a minor injury to the elbow. The diagnosis of a C5/6 disc prolapse was not relevant to the applicant’s condition.
The applicant had developed some limitation of movement in the right shoulder, which Dr Casikar opined was probably because she was not using her right hand. She required attention to prevent developing a frozen shoulder.
Dr Casikar opined that it is well known that even minor injuries can result in CRPS. It is independent of the severity of the injury. The applicant had no prior issue of depression or emotional issues. Her condition was entirely related to the minor injury to her elbow.
It was difficult to speculate as to when the CRPS would resolve. It may take up to six months. Some individuals take a long time to recover.

Dr Anil Nair – spinal surgeon

Dr Nair reported to Dr Herald on 26 May 2021.
Dr Nair recorded that the applicant complained of significant pain in the cervical spine, radiating into the right upper extremity. She “has symptoms since a workplace injury.”
The applicant’s pain radiated from the right trapezial region into the right upper extremity. It was provoked by movement of the cervical spine.
Dr Nair referred to the MRI of the applicant’s cervical spine as revealing a small C5/6 disc herniation. He suggested review by a pain physician.

Dr Tim Ho – pain specialist

Dr Ho reported to Dr Nair on 16 August 2021.
The applicant’s “problem list” included chronic neuropathic right upper extremity pain, secondary to CRPS and central sensitisation; centralised symptoms; adjustment disorder; catastrophisation; reduced self-efficacy; and workplace injury – soft tissue injury to the right upper extremity in December 2020.
The applicant’s medications were Endep and Panadeine Forte. She had tried but stopped Lyrica.
Dr Ho recorded a consistent history of injury to the applicant’s right elbow. The pain had worsened and spread to her whole right upper limb. Her investigations were clear.
The applicant had seen Dr Herald and was diagnosed with CRPS. Her MRI showed some impinged nerve, but she had seen a neurosurgeon who opined that her pain was not consistent with the nerve impingement in the cervical spine.
The applicant reported a neuropathic pain in the whole right upper limb, with radiation to the right face. There were some sudomotor, vasomotor, motor, and trophic changes noted. There was a tremor, swelling, and purple colour change of the right upper limb. There was skin and nail change, and autonomic symptoms of dizziness.
Dr Ho noted an absence of active pain coping strategies. There was associated adjustment disorder, catastrophisation, and reduced self-efficacy.
The applicant was keen to pursue a pain management program. Dr Ho had discussed a trial of medication for her CRPS. He would also apply for diagnostic and therapeutic injections of stellate ganglion block and brachial plexus block.
Dr Ho also recommended physiotherapist and psychologist review.
On 13 September 2021, Dr Ho reported that the applicant had had significant benefit from trialling duloxetine. They had approval for the suggested blocks.
The applicant reported benefit from her medication. Dr Ho was pleased she was booking psychology, physiotherapy, and pain management. He supported all this treatment.
Dr Ho reported to Dr Nair on 11 October 2021.
The applicant was taking duloxetine; Mobic; and Panadeine Forte. She had tried but stopped Lyrica.
Dr Ho noted that the applicant reported benefit from her medication. There were no side effects or aberrant behaviour.
The applicant was booking in for psychology, physiotherapy, and a pain program, which were supported.
Dr Ho reported to Dr El Azzi on 29 November 2021.
Dr Ho noted increased centralised symptoms, including secondary hyperalgesia of the neck and head. There were further somatic and psychological features of centralised pain. Treatment should focus on a pain management program.
On 6 April 2022, Dr Ho reported that the applicant’s problem list was the same.
The applicant’s medical follow up was to include trial of medication, psychoeducation regarding chronic pain, and motivational interviewing for pain self-management.
The applicant’s psychology review for pain coping skills indicated that the main barrier was poor engagement and ambivalent motivation. She had a strong sense of injustice. The encounter was to be closed until she was ready to engage.

Dr Loretta Reiter – consultant rheumatologist

Dr Reiter was qualified by the respondent and reported first on 10 March 2022.
Dr Reiter recorded a consistent history of the injury. The applicant woke the day after with severe pain, throbbing in nature, affecting her whole right upper limb. She also had shooting pains up and down the limb from her fingers to her shoulder, increasing with any movement of her arm. She had pins and needles affecting the whole limb.
The following day, the applicant still had severe pain affecting her whole right upper limb. (It appears that some of this page of the report may have been deleted in the process of printing).
The applicant had ongoing pain, so she was referred for MRI of the elbow about two to three weeks later. It was noted that her ulna nerve was normal.
The applicant was referred to Dr Herald and Dr Nair. Dr Reiter noted their conclusions.
Dr Ho had confirmed in September 2021 that the applicant had CRPS. He placed her on a pain management program. Although he usually advised his patients with CRPS to have physiotherapy, the applicant said she was unable to have it, due to the severity of her pain affecting her right upper limb, and hypersensitivity to light touch.
The applicant had undergone a stellate ganglion block and a brachial plexus block. She had last been reviewed by Dr Ho in December and did not have a follow-up appointment.
Dr Reiter recorded that the applicant had constant pain affecting her right upper limb from her fingertips up to the right side of her neck, and also involving the right side of the head, which was aching, burning, and sharp and shooting in nature. She had allodynia of her right upper limb.
The applicant also had constant pins and needles affecting the palm, and intermittently her whole right upper limb. Her right hand was swollen, and she noticed it changed colour to purple. Intermittently, her hand would sweat, and she felt she had patches of hot and cold affecting her right upper limb. Her hand would at times shake/jerk when she tried to move it. She had noted reduced range of motion, with difficulty making a right fist. She considered her skin was dry but had not noticed any nail changes or abnormal hair growth.
The applicant’s treatment included duloxetine, Panadeine Forte, and over-the-counter Nurofen.
The applicant was working 10 hours per week over two days, having returned to work on 17 December 2021. She was due to commence 15 hours per week, over five days, doing an administrative role.
Dr Reiter recorded that the applicant was able to shower and dress, but her mother washed her hair. Her hobby was cooking, so she would often do the cooking, which was shared with the other family members, but her mother was now doing all the cooking, cleaning, and hanging the washing. She previously helped with the grocery shopping, but her mother now did it by herself. Her father continued to mow the lawn and tend the garden.
The applicant was able to drive up to a maximum of five minutes. Prior to her injury, she attended the gym, doing weights, six days per week for 45 minutes each session. She was also a makeup artist, seeing 10 paying clients per week in her home.
Dr Reiter observed that the applicant’s right hand was more reddish than her left, which then when she was examining her had returned to normal colour. Her right hand was swollen, with normal nails, skin, and hair distribution. The palm of her right hand was sweaty, compared with the left, and the temperature of both hands and arms was equal.
The applicant had a reduced range of motion of her right hand, as she could not make a full fist. She had a reduced range of motion of her right wrist, elbow, and shoulder, with these movements causing her right hand to shake.
Dr Reiter opined that the applicant had a minor injury to her left [sic] elbow when she bumped it on two shelves on 8 December 2020. Consequently, she had developed CRPS.
Dr Reiter recommended that the applicant return to her pain specialist. She should be seen by a physiotherapist with expertise in treatment of CRPS. Dr Reiter opined that the applicant’s condition was not stable and stationary until she had been provided with all available treatment. The estimated time for her recovery could be years.
Dr Reiter provided a supplementary report on 9 May 2022.
Dr Reiter “understands that” the applicant had been resistant to treatment. She was due to commence physiotherapy and work but did not attend any scheduled appointment or return to work due to flareups in pain. She advised that the reason was that she had a lot on and something personal going on.
Dr Reiter opined that the applicant was able to work in accordance with what she had recorded in her first report. If she was continuing to do makeup work, this should cease, as her main focus should be to return to her role at Kmart.
The applicant’s reluctance to engage in treatment signalled that she was not genuine in wanting to recover, which Dr Reiter found “alarming”.
Dr Reiter re-examined the applicant on 2 September 2022 and reported on 16 September 2022.
The applicant confirmed her previous history. She added that Mobic caused reflux oesophagitis symptoms; she was admitted to Macquarie Hospital in late May 2021; and she had some relief for a few days with the stellate ganglion and brachial plexus blocks.
The applicant had been reviewed by Dr Sheh, who ceased her Panadeine Forte and arranged for her admission to Mt Wilga Hospital. Her GP had referred her for more physiotherapy, which she had once a week for about two to three months, with short-term relief whilst she was having the treatment.
The applicant had returned to administration work, 15 hours per week, for a few weeks, but had a flareup of pain, with neck and head pain, so she stopped working. She had stopped studying 13 weeks ago. She was not attending, as she found it difficult to function and concentrate.
Dr Reiter recorded similar symptoms as before. The applicant also had constant pins and needles affecting her right upper limb from her elbow distal. She still considered her right hand was swollen and noticed that it changed colour to purple. Her right hand now did not sweat, and she felt her right upper limb was intermittently hot or ice cold.
The applicant had noticed that the nails on her right hand were “chipping” a couple of months ago, but she did not have any abnormal hair growth.
The applicant’s treatment included duloxetine and Nurofen. Dr Reiter asked her if she smoked, including vaping, and she reported she had only used the shisha three years ago.
The applicant’s ADLs were largely unchanged. She could drive for a maximum of 5 to 10 minutes, only using her left hand, mostly driving to the supermarket, which took two minutes.
On examination, Dr Reiter recorded that the applicant held her right hand dangling by her side. She requested that the applicant place her hand on her lap, as the former position could lend itself to changes, such as swelling and discolouration, that are observed in CRPS, but are not due to CRPS.
Observation of the applicant’s right hand revealed no swelling, and normal colour, temperature, and hydration. She had normal skin texture and lack of hair equally on her upper limbs.
The applicant had false pink nails. Dr Reiter asked how she had her nails done, given her marked allodynia, which she continued to exhibit, complaining of severe pain with even very light touch on any part of her right upper limb. The applicant said her friend came to her place to do her nails. Dr Reiter asked if she had ever been out to have her nails done. She responded in the negative.
The applicant still had a reduced range of motion of her right hand, as she could not make a full fist. She had a reduced range of motion of her right wrist, elbow, and shoulder, with these movements this time not causing her right hand to shake. Examination of her cervical spine revealed tenderness on the right from C2 down to C6, with a full range of motion.
Dr Reiter opined that the applicant had a minor injury to her left [sic] elbow when she bumped it on two shelves. She did not meet the criteria for CRPS, as she only had allodynia.
After reading SureFact’s report, Dr Reiter asked the applicant specific questions. She openly said she did not attend a nail specialist, yet there was evidence that she did. She said she did not vapour [sic], yet there was evidence of her holding a vapour [sic] with her right hand.
The applicant had advised she could only drive for a maximum of 5 to 10 minutes, yet there was evidence she drove on 6 August 2022 for 39 minutes.
The applicant had also stated she could not use her right hand for any activities, using only her left hand when driving, yet there was evidence of her using her right hand to carry her handbag; brushing her hair with her fingers; using her phone in her right hand; typing and holding the phone in her right hand; putting in and removing an earbud with her right hand; and closing the door of her vehicle using her right hand.
Dr Reiter opined that this “definitely” indicated that the applicant was embellishing her presentation and did not have CRPS. She did not suffer an injury to her cervical spine, as she had good range of motion on examination. She did not have a permanent impairment as a result of injury on 8 December 2020.
Dr Reiter provided a supplementary report dated 13 October 2022.
Dr Reiter opined that the applicant was fit for pre-injury duties, given, in particular, what was observed with surveillance. It was evident that she was embellishing her presentation, which raised the question of whether there was positive gain that was the main barrier to her recovery and return to work.
Dr Reiter opined that the applicant had recovered from the injury and required no further treatment.

Dr Uthum K. Dias – occupational physician

Dr Dias was qualified by the applicant and reported first on 9 May 2022.
Dr Dias recorded that the applicant had complained to Dr El Azzi on 10 September 2020 of neck pain and sensory symptoms affecting her left upper limb. She was referred for MRI of her cervical spine and left wrist. Her symptoms resolved within around two or three weeks.
Dr Dias obtained a consistent history of the injury on 8 December 2020. He recorded that the applicant’s symptoms began to worsen that night, and she experienced significant pain affecting her entire right upper limb, as well as on the right side of her neck, associated with pins and needles and numbness affecting her entire right upper limb.
Dr Dias then recorded a history of the applicant’s treatment and investigations.
Dr Dias noted that the applicant continued to suffer with debilitating sensory symptomatology affecting her entire right upper limb and ongoing right-sided neck pain, stiffness, and discomfort, since the accident.
The applicant had been diagnosed with CRPS affecting her right upper limb, and C5/6 disc protrusion with potential compression of the right C6 nerve root. She had suffered with symptoms of anxiety and depression. She was not under the care of a psychologist or psychiatrist. She took duloxetine 120mg daily.
Dr Dias recorded that the applicant attempted to return to work in February 2021. Her right arm would frequently get knocked and bumped accidentally. She ceased work on or around 20 May 2021.
The applicant had returned to restricted hours and duties in around late December 2021, primarily working from home. She returned to in-store duties in April 2022, and continued to work 15 hours per week.
As a result of her injuries, the applicant was forced to delay her university studies. She was currently studying one subject per semester, online. She had been given special consideration in the context of her disabling injuries affecting her right upper limb and cervical spine.
The applicant complained of debilitating sensory and motor symptoms affecting her right upper limb on a daily basis, and ongoing right-sided neck pain, stiffness, and discomfort. Her neck pain was associated with recurrent headaches.
The applicant reported significant sensory dysesthesia, allodynia, skin colour changes, reduced sweating, and global stiffness affecting her right upper limb on a day-to-day basis. The symptoms were maximal around her elbow and hand/wrist regions.
The applicant also reported that she suffered recurrent tension and migraine headaches on a daily basis, had difficulty concentrating, and intermittent difficulties with balance, resulting in multiple falls. She had had intermittent symptoms of similar pain affecting her left upper limb and right and left legs.
The applicant rated her symptoms of pain in her right upper limb and neck as “ranging between 10 out of 10” [sic] on a daily average basis. She had frequent random flareups and exacerbations affecting her right upper limb, lasting several hours at a time. Her symptoms tended to be worse in cold weather and significantly affected her sleep.
The applicant struggled to walk or stand for more than five minutes at a time. Sitting was difficult for more than 10 minutes. She could tolerate driving for up to 15 minutes maximum, using her left hand. She had not been able to run or jog since the accident.
Dr Dias recorded that the applicant could hold the pen and wrist [sic: probably “write”] for up to 10 seconds before having to stop due to worsening pain in her right hand and wrist. She could use a computer for up to around 10 to 15 minutes at a time, using her left hand to type.
The applicant relied on her mother’s assistance with sharing [sic: probably “showering”] and dressing tasks. She was able to eat, mobilise, and perform toileting duties independently. She had been unable to contribute to cooking or cleaning since the accident. She was able to perform very light grocery shopping, carrying items in her left hand.
Dr Dias recorded that the applicant was taking Panadeine Forte, two tablets, up to six times per day. She also took up to six Nurofen tablets per day. She followed up with her physiotherapist weekly. She did light exercises and stretches for her right upper limb, on a daily basis. She had last seen Dr Ho in December 2021 and was not under the care of any other treating specialist. She remained under Dr El Azzi’s care.
The applicant presented as cooperative, although pain focused. She kept her right arm close to her body at all times, in a protective fashion.
Dr Dias opined that the applicant had symptoms and signs consistent with CRPS affecting her right upper limb; and chronic discogenic cervical spine pain, stiffness, and discomfort, secondary to an acute musculoligamentous strain, with an associated C5/6 disc protrusion.
Dr Dias further opined that the applicant had sustained an acute impaction injury to the posterior aspect of her right elbow and a discogenic injury to her cervical spine as a result of the incident on 8 December 2020. The “causal chain” from that incident “remained unbroken”.
Dr Dias assessed the applicant with 8% WPI as a result of injury to the cervical spine, and 43% WPI as a result of injury to the right upper extremity, a combined assessment of 48% WPI.
Dr Dias re-examined the applicant and again reported on 18 July 2023.
The applicant told Dr Dias that she had not had any significant clinical improvement, and ongoing symptomatology affected her right upper limb and cervical spine. She had developed worsening recurrent migraine headaches over the past 14 months, and gastrointestinal side effects due to her reliance on heavy opioid based analgesia over that period.

The applicant’s treatment since the last assessment consisted of regular use of opioid based analgesia; physiotherapy; home exercises; anti-inflammatory tablets; and regular use of ice packs. She underwent an inpatient hospital stay at Mt Wilga Hospital, under the care of Dr Sheh, between 5th September 2022 and 17th September 2022 for multidisciplinary pain management. She did not receive any interventional injections/blocks procedures and recalled that the inpatient pain rehabilitation was not in any way beneficial.
For a period of approximately six to nine months, between June 2022 and early 2023, the applicant was able to manage her symptoms by taking Endone three times daily and Panadeine Forte two to three times daily, to the point where she could function, going out of the house, socialising, getting her nails done, and performing self-care tasks independently. Since coming off Endone due to gastrointestinal side effects in early 2023, her symptoms had deteriorated.
The applicant had seen pain medicine specialist Dr Mir only once, on 11 May 2023. She was not under any other specialist care. She took duloxetine 180mg daily.
The applicant continued to struggle with symptoms of right-sided neck pain and symptoms and signs consistent with CRPS type 1 affecting her right upper limb. Over the past six months she had suffered recurrent migraine headaches, associated with photophobia and nausea, approximately three to four times per week. She suffered from constipation and abdominal bloating as a result of her reliance on heavy opiate based analgesia.
The applicant rated her symptoms of pain as around 7-8 out of 10 on a daily average basis. They tended to be worse in colder weather and consistently affected her sleep. She struggled with walking for more than 10 minutes at a time or standing for more than 20 minutes at a time due to worsening pain in her neck and right shoulder, as well as symptoms of dizziness and nausea.
The applicant was able to tolerate sitting for up to around 45 minutes and driving for up to around 45 minutes, before having to consider stopping due to worsening pain in her neck and right upper limb region. She had not been able to run or jog since injuring her neck and right upper limb.
Prior to the accident, the applicant used to go to her local gym on a regular basis. She had not been able to return to recreational gym exercise over the past 31 months.
The applicant’s activities and ADLs remained much as before. She generally wore looser fitting clothes around her home, to avoid aggravating her right upper limb symptoms. She had taken up vaping and electronic cigarettes on a daily basis shortly after Dr Dias’s assessment in May 2022.
The applicant was taking the synthetic opiate palexia 50mg three times daily, Nurofen 400mg every four hours, and duloxetine 180mg daily. She had to take antimigraine medication, Relpax, around three to four times weekly. She took Movicol daily for management of chronic constipation, Dulcolax regularly, also for constipation, and Zofran for management of intermittent nausea.
The applicant continued to perform home exercises, within the limits of her pain tolerance, daily. She used ice packs regularly. She remained under Dr El Azzi’s care.
Dr Dias diagnosed CRPS type 1 affecting the right upper limb; and chronic non-specific cervical spine pain, stiffness, and discomfort, with associated recurrent migraine headaches secondary to an acute musculoligamentous strain with an associated C5/6 disc protrusion, sustained as a result of the frank workplace incident.
Dr Dias was asked by the applicant’s solicitors to clarify causation/mechanism of injury with respect to injury to the applicant’s cervical spine, as “the frank injury on 8 December 2020 involved our client banging her right elbow in [sic] a protruding metal shelving…There appears to be no involvement of the cervical spine in this frank incident from the contemporaneous records.”
Dr Dias was also asked, if the applicant’s cervical spine was injured in the frank incident, how this occurred; whether there was an acceptable clinical explanation for the delay in complaints to the cervical spine; and, if the injury to the cervical spine was secondary/consequential, to comment on the causal connection between it and the injury to the right upper extremity.
Dr Dias opined that the applicant’s cervical spine condition was causally related to the frank incident. She experienced symptoms of mild pain over the right side of her neck as a result of the accident but was more concerned initially about significant symptomatology affecting her right upper limb in the days and weeks following. She initially assumed her cervical symptoms would resolve with treatment of her right upper limb condition, believing it reflected referred pain from her right shoulder.
Dr Dias reported that, with persistence of her cervical spine symptomatology, the applicant eventually sought medical attention for her neck injury around three months after the accident.
Dr Dias disagreed with Dr Reiter’s opinion. He opined that the applicant fulfilled the diagnostic criteria for CRPS and had clear physical examination findings with respect to the cervical spine consistent with his diagnosis of discogenic injury.
Dr Dias noted that Dr Reiter based much of her clinical opinions on the surveillance reports and had significantly changed her opinions. He opined that this was “problematic, given the limited nature of the surveillance and supposition associated with drawing clinical conclusions, from surveillance footage, performed in a discontinuous manner over short periods of time (periods of time drawn from 8 days - against the background of 31 months of continual symptomatology and disabilities since the subject accident).”
Dr Dias also disagreed with Dr Sheh’s conclusions, for similar reasons. He agreed with Dr Sheh that the applicant appeared to have significant psychiatric comorbidity, which he opined was most likely consequential to her work related injuries. This was likely to be impacting on her pain perception, but this was a matter for an independent psychiatrist.
The reports of SureFact and the surveillance footage did not cause Dr Dias to alter his opinion. He opined that the footage had extremely limited validity with respect to clinical assessment.
The applicant had reported that during the period of surveillance, between July 2022 and October 2022, she was using heavy opioid based analgesia, and wanted to mask her symptoms and disabilities from her boyfriend. Dr Dias noted that “at no stage” did her movements significantly contravene the functional limitations and disabilities associated with her injuries, based on his assessment of her on 18 July 2023. He did not believe the activities contradicted the diagnosis of CRPS.
Dr Dias assessed the applicant with 7% WPI as a result of injury to the cervical spine; and 30% WPI as a result of injury to the right upper extremity, a combined WPI of 35%.

Dr Glen Sheh - consultant physician in pain medicine and rehabilitation medicine

Dr Sheh reported to Dr El Azzi first on 23 June 2022.
Dr Sheh recorded a consistent history of the injury and the events that followed. The applicant had seen 13 doctors.
The applicant had undergone a stellate ganglion block, after which her pain was worse. She received physical therapy until January 2021.
Dr Sheh noted that MRI of the applicant’s right elbow in December 2020 showed no ulnar nerve compression in the cubital fossa; and MRI of the cervical spine in March 2021 showed a small disc bulge to the right at C5/6, with possible impingement of the exiting right C6 nerve root and a 1mm spondylolisthesis at C5/6.
The applicant described a constant “stabbing, shooting and electric pain” in the right elbow. The pain radiated up to the neck and down to the hand. She experienced paraesthesia in the fingers, thumb, and forearm on the right. All movements of the right upper limb aggravated the pain. She could not tolerate any touch to her right arm. At times she had headache on the forehead, when the pain was very bad, with radiation to the neck. There was sleep disturbance. Walking and standing aggravated the pain.
The applicant had lost her balance and felt dizzy at times. She had a couple of falls when the pain was “10 out of 10”. She had had two admissions to Bankstown Hospital, in May 2021 when she collapsed, and in September 2021 due to pain.
Dr Sheh recorded that the applicant was reliant on her mother for self-care assistance, including donning and doffing upper body clothing and tying up her hair. She otherwise used her left hand to brush her teeth and was self-independent in toileting.
The applicant’s medications were Panadeine Forte, since the accident; ibuprofen, since 2022; and duloxetine, since 2022. They helped a bit with her pain, but it was not sustainable. The applicant’s mother initially reported that she used Panadeine Forte a lot, but at the end of the consultation said she did not use it every day.
Dr Sheh recorded that the applicant’s mood and affect were flat. She was guarded in answering his questions. She had poor posture with protracted shoulders and raised left shoulder.
The applicant’s knitwear had half sleeves with a tight end. Her sensitive arm did not allow the sleeve to be pulled up to observe her right upper arm. From the elbow to distally, there was no difference in muscle bulk between the two sides. There was extensive superficial allodynia to palpation. “Deep tissue allodynia”. It was impossible to assess range of motion and strength. The applicant’s right elbow was probated. There was minimal right arm use.
The applicant’s right arm was slightly dusky pink. There was no swelling. Her mother showed Dr Sheh a picture on her phone of a swollen arm. There was old nail polish on both hands. After the examination, the applicant pulled the tight end of her sleeve back into place by herself.
Dr Sheh’s impression was that right arm pain was precipitated by a forceful strike of the elbow. There was subsequent extensive radiation to the neck and head, and somatisation. Psychological overlay needed further exploration. Dr Sheh had openly discussed with the applicant his concern and suspected diagnosis regarding somatisation.
Dr Sheh opined that opioid therapy was not in [the applicant’s] best interest, especially with Panadeine Forte. He reiterated that continuation of codeine put her at high risk of medical complication, including worsening nociplastic pain. Should the use of codeine be chronic, opioid rotation was warranted and [to be] followed by gradual weaning.
Dr Sheh could not see that an outpatient approach would change the applicant’s situation. She had a complex nociplastic pain. He advised a two-week inpatient intensive pain rehabilitation. An admission to Mt Wilga Hospital under his care could be arranged.
Dr Sheh again reported to Dr El Azzi on 4 August 2022.
The applicant’s issues included opioid therapy up to 23mg (variable codeine doses as of December 2020). She was previously known to Dr Ho in 2021. She had a poor outcome from stellate ganglion block. She had a past medical history of atopic dermatitis and adjustment disorder and depressed mood.
The applicant had been reviewed by teleconference. She was lying in bed. Dr Sheh discussed the outcome of his review from NSW SafeScript check. The applicant had stopped taking codeine as of the last assessment. She said she did not want any more tablets.
The applicant had four more weeks to complete the University term. She was struggling and was willing to defer the next term. This would allow her to attend an inpatient pain management rehabilitation program. She was “fine” with an admission date of 5 September 2022. She said her family was not taking the recommendation well, as none of the previous medical suggestions had been effective.
The applicant’s medication was 120mg of duloxetine since 2021.
Dr Sheh would arrange for the applicant to have a two week inpatient admission to Mt Wilga on 5 September 2022. A seven day program was to be scheduled, consisting of land based and pool exercises. Ms Nacol would have regular education and input by a physiotherapist, exercise physiologist, occupational therapist, and psychologist. Twice weekly psychology was to be arranged. She had agreed to obtain a psychiatry opinion.
Dr Sheh would refer the applicant to Dr Milton Roxana, psychiatrist, for in-house assessment. She would have some blood tests on arrival.
Dr Sheh next reported to Dr El Azzi on 16 September 2022.
The applicant had undergone pain management rehabilitation between 5 September 2022 and 17 September 2022.
On examination, Dr Sheh noticed a couple of self-harm scars on the applicant’s left forearm. She admitted to “a lot of trauma” but then denied it. She did not consent to Dr Sheh reporting all the information she divulged. He noted inconsistency of history and functional capacity.
The applicant reported contact dermatitis from the use of transdermal lignocaine, which was ceased. Dr Sheh attributed it to the dryness in the air-conditioned room. The applicant had a trial of gabapentin for two days, during which fewer pain complaints were noted. It gave her dizziness and was stopped.
Prior to discharge, the applicant was anxious about not being able to cope with the pain and wanted pain medication. Dr Sheh reiterated that opioid agent was not in her best interests. After discussion, she wanted to retrial lignocaine.
On examination, the muscle bulks of the applicant’s right upper forearm were slightly bulkier than the left. No swelling, colour change, or skin changes were detected. Despite the superficial allodynia on her right forearm, she managed to wear tops with tight sleeves. Range of motion of her shoulder, elbow, and hand on the right could not be assessed due to her reported pain.
The applicant had attended hydrotherapy and physiotherapy. She responded well to hydrotherapy. Certain active exercises were poorly tolerated due to pain. She did not attend all OT (occupational therapy) sessions as she was preoccupied by the course work commitment, although she had given the impression she had taken leave for the semester.
The applicant was upset that her family and boyfriend could not visit, as the visiting time was not convenient. Special permission was sought from the DON (Director of Nursing) to allow visitors outside these hours.
Before the applicant was discharged, Dr Sheh reiterated the impact of psychological overlay to [sic] pain.
The applicant’s pain medications were lignocaine 5%, half patch daily from 9am to 9pm, applied to the right forearm; and duloxetine 120mg since 2021.
Dr Sheh opined that the applicant remained vulnerable. Rapport establishment was extremely difficult. He strongly recommended that Ms Nacol see Mr Peter Mangioni, clinical psychologist, who was experienced in pain management, and she had agreed. A rehabilitation provider was highly recommended.
Dr Sheh was seeking approval to follow up the applicant in six weeks.
Dr Sheh reported to the respondent on 7 November 2022.
Dr Sheh had been provided with Dr Reiter’s reports and the video surveillance. He noted the times and the observations of the surveillance. He had perused the reports and watched parts of the video.
The surveillance evidence was similar to the observations of Dr Sheh and the therapist at Mt Wilga Hospital.
Dr Sheh noted Dr Reiter’s comment that the applicant did not attend a nail specialist “and yet there is evidence that she did attend a nail specialist.” He opined that this added a strong suspicion on [sic: of] secondary gain, rather than the diagnosis of conversion disorder that he suspected. A patient with conversion disorder may present with inconsistent symptoms, but in a subconscious way.
Dr Sheh “cannot agree more” that the diagnosis of CRPS became doubtful at the time of his assessment.
The proof of the applicant’s ingenuine history made it difficult for Dr Sheh to maintain a therapeutic doctor-patient relationship. No more treatment plan was recommended. There should be no reason why the applicant could not return to her pre-injury duties.

Ms Nur Azam - physiotherapist

Ms Azam reported to Dr El Azzi on 10 August 2022.
Ms Azam had been unable to palpate or manually treat the applicant’s right arm due to her allodynia and nociplastic pain. Her right arm and hand were not functional, and she was completely reliant on her left arm and family to perform her ADLs, including personal care.
The applicant described varying symptoms, including high levels of pain, and shooting pain from her neck to her hand, that could radiate to her forehead at times and include blurred vision. She also had intermittent pins and needles along her right arm and hand.
Treatment had focused on releasing the applicant’s neck musculature, which was extremely tight and stiff, due to lack of movement and muscle guarding as a pain response. The applicant reported relief post-treatment. However, at times treatment had flared up the severe shooting pain in her arm, despite gentle treatment modalities.
Ms Azam recommended referral to Westmead Hand Therapy Centre, where the applicant could receive intensive intervention and the best outcomes.
The applicant was willing to participate in any therapy that had the potential to make a significant difference to her condition and improve her function and quality of life.
Ms Azam was happy to continue treating the applicant’s other musculoskeletal complaints weekly, alongside specialised treatment targeting her right arm and hand.

Dr Adam Mir – pain specialist

Dr Mir reported to Dr El Azzi on 11 May 2023.
Dr Mir noted that the applicant had been on opioid medication, mainly Panadeine Forte and Endone, for management of pain. She had ganglion blocks and rehabilitation in hospital, without significant improvement.
They had discussed pharmacological, psychological, and procedural management of CRPS. The applicant had agreed to stop Panadeine Forte.
Dr Mir had provided the applicant with CRPS cream. She was to stop Panadeine Forte and start palexia. She was sent for a bone scan, and Dr Mir was to review her in four weeks. There are no further reports from Dr Mir.

SUBMISSIONS

The submissions have been recorded, so I will summarise them briefly.

Applicant

The applicant submitted that on 8 December 2020, she struck her right elbow and jerked her cervical spine. The injury to her right elbow was not disputed. The role of CRPS was important, because by its nature it was complex, and manifested in many symptoms. The applicant’s right upper extremity was her focus, and that of the medical practitioners.
The applicant submitted that by January 2021, her neck pain was intrusive, and she was having physiotherapy.
The applicant referred to her evidence addressing the surveillance. She presumed the respondent would make a submission as to her credit. She submitted that reference should be made to the medical evidence. She had a serious issue with her right arm, so it was not surprising that her neck was not looked at for some time. She noted reference to the SCM and neck stretches on 2 January 2021.
The applicant submitted that there was reference in the GPs’ notes to the trapezius, which was difficult to differentiate from neck pain. She referred to Dr Herald’s evidence.
The applicant submitted that MRI of her cervical spine identified a small disc bulge. An MRI only a few months before this episode was normal. There was no other explanation for the pathology. It was most likely that her cervical spine, as well as her elbow, was injured, but was not looked at until March 2021.
The applicant submitted that this evidence discharged her burden of proof, but Dr Dias also addressed this issue. He maintained his opinion after considering Dr Reiter’s evidence. The applicant submitted I would prefer the evidence of Dr Dias to that of Dr Reiter. Dr Casikar opined that the MRI was normal, and his report should be given little weight.

The applicant submitted that she had very serious symptoms from day one. No one looked at her cervical spine until March 2021, but she complained of it one month after the injury, and the MRIs before and after the injury should be considered. There should be no hesitation in deciding she had sustained a cervical spine injury.
In reply to the respondent, the applicant submitted that she had neck symptoms, but they were mild compared to her elbow. The medical records show that she complained of issues with her neck within a month.
The applicant submitted that Dr Dias had addressed the surveillance. It did not assist in determining whether she was a liar. She had given the reason that she had obtained medication “off market” to the doctors and others.
As regards the submission that symptoms do not equate to injury, the applicant put her case on the MRI. There was clear pathology, and her symptoms were masked by her right elbow symptoms.

Respondent

The respondent submitted that there was a tendency in the Commission to equate symptoms with injury, in light of what the High Court said in Federal Broom Co Pty Ltd v Semlitch.[1] Symptoms do not always mean there was an injury – Commonwealth of Australia v Kathleen Beattie.[2]
[1] [1964] HCA 34; (1964) 110 CLR 626.
[2] [1981] FCA 88; (1981) 53 FLR 191.
The respondent submitted it was necessary to look at the evidence of injury. This was not answered by whether there was a complaint of pain in the right side of the neck.
The respondent referred to the description of the injury in the incident report and the applicant’s evidence, and whether it was accepted. The incident report stated that the applicant hit her “funny bone”. The injury was to her right elbow. There was no description of injury to her neck.
The respondent submitted that the clinical notes showed the doctor was paying attention to the right elbow and shoulder. Until January 2021, the doctor and the physiotherapist were paying close attention to the areas where the applicant had pain. There was no pain in the neck until then.
The respondent submitted that the trapezius is not closely associated with the neck. It is the shoulder blade. No doctor had ever taken a history of the applicant jerking her neck. There was no history of injury to the neck or neck pain at the time of the injury. The applicant did not plead a consequential condition, but a frank injury. Contrary to her statement, she had no problem with her neck. It developed later, possibly as a consequence of CRPS.
The respondent submitted that Dr El Azzi had never said the applicant had injured her cervical spine, even after the MRI. The scan after the injury was reported as showing a disc bulge, but we did not have the scans. Dr Herald did not take a history of a jerking motion, and nor did Dr Dias. Dr Casikar recorded that the pain had spread to the applicant’s shoulder, neck and back.
Dr Dias had recorded a history of pain in the applicant’s neck since 8 December 2020, which was inconsistent with the contemporaneous records. He did not explain how the applicant banging her right elbow injured her neck. The first time the applicant mentioned that neck pain had developed that evening was when she saw Dr Dias. She did not mention it to anyone else.
The respondent submitted that there was good reason to have pause in accepting the applicant’s evidence. The surveillance evidence was totally inconsistent with what she told Dr Dias. By the time she gave an explanation, she was aware of the surveillance.
The applicant did not say who the collection of friends who were handing her Endone three times a day were. Her explanation was implausible and inconsistent. She gave evidence that she was much better during the period of surveillance, but this was not the case earlier when she was on Endone.
The respondent submitted that none of the treating doctors said the change in the MRI was caused by the incident. Only Dr Dias said this, and we do not know why. It was not for the respondent to disprove the injury. There was a fairly minor variant on the MRI.

SUMMARY

There is no dispute that the applicant sustained injury to her right elbow on 8 December 2020. Whether she has developed the condition of CRPS as a result of the injury will be a matter for a Medical Assessor to determine.
The applicant claims that, in addition to the injury to her right elbow on 8 December 2020, she also sustained injury to her cervical spine. She does not claim to have sustained a consequential condition as a result of the accepted injury.
I have approached the applicant’s evidence with some caution. She has provided an explanation for her ability to engage in activities that were inconsistent with her complaints to various practitioners. This explanation came only after she became aware that she had been the subject of surveillance, and of what the surveillance disclosed. In my view, it is somewhat implausible.
The applicant apparently was able to obtain Endone using the prescriptions of friends, whom she has not named. It may be that she did not wish to incriminate them in this behaviour, but she has not given that evidence, and nor has she provided any detail that fell short of naming them, such as the conditions for which they were prescribed opiate drugs, or how she came to know this.
The applicant also told Ms Kuorence in April 2022 that her friends had “ditched her”, which is inconsistent with them allowing her to use their prescriptions, which is not only illegal, but would have the outcome that they would have reduced access to medication they apparently required for their own illness or injury.
There is also no evidence from the applicant’s uncle, whom she has also not named, that he provided her with drugs from overseas. Once again, it may be that she did not want to incriminate him, or he did not want to be named or give evidence, but she has again given no evidence of this.
As the respondent submitted, the applicant’s condition was apparently not such that she could engage in the activities depicted in the surveillance at a period other than between June 2022 and early 2023 (coinciding with the period of the surveillance), despite the fact that she was earlier being prescribed opiate medication.
The applicant was specifically asked by Dr Reiter about the activities depicted in the surveillance and denied them. She could, had she been attempting to provide an accurate history, have told Dr Reiter what she said in her statement, that is, that she was trying to lead a normal life, including having a relationship with her boyfriend, but was reliant on medication to do so.
Of more concern than the applicant’s credit, however, is the historical evidence in this matter.
The applicant initially provided no history of having jerked her cervical spine when she struck her elbow. She did not do so until she made her statement in September 2023, almost three years after the injury.
There is no record of the applicant telling any of the doctors who either treated her or were qualified in the matter, including Dr Dias, that she had jerked her cervical spine, or (apart from Dr Dias) that she had neck pain on the night of the injury. Dr Dias nonetheless opined that as a result of the incident, she “sustained an acute impaction injury to the posterior aspect of her right elbow and a discogenic injury to her cervical spine”, without explaining how a blow to the elbow could cause an injury to the neck.
In his second report, Dr Dias referred to the applicant having sustained a “subtle discogenic injury to her cervical spine”. He explained the delay in the applicant complaining about her cervical spine as her initially having assumed the condition would resolve, as it was mild compared to the symptoms in her right upper limb. He has still not explained how a blow to the right elbow could cause an injury to the neck (not having recorded any history of a jerking motion in any event).
As regards the GPs’ clinical notes, I am aware that care must be taken in relying on the evidence of such notes. As Santow JA observed in Nominal Defendant v Clancy[3] :
“While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive…clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor is likely to have been written with more deliberate consideration than rough notes.”
[3] [2007] NSWCA 349, at [54]-[55].
These observations reflect the comments in Davis v Council of the City of Wagga Wagga[4] that “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury” (at [35] per Mason P, Beazley and Tobias JJA agreeing.)
[4] [2004] NSWCA 34.
This does not mean that I cannot place weight on the contents of the clinical notes. The issue is just how much weight is to be placed on the evidence. In King v Collins[5], Basten JA (Mason P and Santow JA agreeing) said:
“There is no doubt that his Honour was entitled to place weight on the fact that the written records did not demonstrate any indication that the accident was caused by movement in the step when the plaintiff trod on it. However, some care must be taken in attributing too much weight to such documents” (at [34]).
[5] [2007] NSWCA 122.
Dr El Azzi appears to have been conscientious in recording the applicant’s history and complaints. As the respondent submitted, even after the MRI of the applicant’s cervical spine, Dr El Azzi never said Ms Nacol had injured her neck, or that she had at any time told Dr El Azzi she had jerked her cervical spine when she struck her elbow. The applicant has given no evidence that, for example, she had told Dr El Azzi this, but the doctor had failed to record it.
Dr Dias, as an independent medical examiner, may be expected to have written his report with “more deliberate consideration”, but as I have noted, he recorded no history that the blow to the applicant’s elbow caused her to jerk her neck.
I accept that the applicant had symptoms in her neck, and the MRI dated 29 March 2021 is reported as showing C5/6 radiculopathy with disc bulge. However, the fact that she has symptoms and pathology does not establish that she has sustained injury. She has complained of diffuse pain and various symptoms that could equally be due to the condition of CRPS as to the claimed frank injury to her neck.
The applicant bears the onus of establishing on the balance of probabilities that she has sustained injury to her cervical spine.
The Court of Appeal in Nguyen v Cosmopolitan Homes[6] said:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.” (at [55]).
[6] [2008] NSWCA 246.
For the reasons above, I am not persuaded that the applicant has met her onus to establish that she has sustained injury to her cervical spine. There will accordingly be an award for the respondent in respect of the claim for injury to the cervical spine.
The orders are set out in the Certificate of Determination.

[2024] NSWPIC 39

31 January 2024