Nouansengsy v Gliderol International Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Nouansengsy v Gliderol International Pty Ltd [2023] NSWPIC 321
APPLICANT:	Deng Nouansengsy
RESPONDENT:	Gliderol International Training Pty Ltd
Member:	John Isaksen
DATE OF DECISION:	5 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; order sought by worker for the respondent to meet cost of a C4/5 and C5/6 discectomy and fusion; respondent accepts that the worker sustained injury to both upper limbs but not to his cervical spine; Held – worker sustained an injury to his cervical spine in the course of his employment with the respondent; the proposed surgery is reasonably necessary as a result of work injury; order made pursuant to section 60(5).
determinations made:	The Commission determines: 1. The applicant sustained an injury to his cervical spine in the course of his employment with the respondent on or about 2 May 2019. 2. The C4/5 and C5/6 discectomy and fusion proposed by Dr Abraszko is reasonably necessary as a result of the injury sustained by the applicant on or about 2 May 2019. The Commission orders: 3. Pursuant to s 60 (5) and s 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the C4/5 and C5/6 discectomy and fusion proposed by Dr Abraszko, and the reasonably necessary expenses associated with that surgery.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Deng Nouansengsy, claims that he sustained an injury to both shoulders, both elbows and cervical spine on 2 May 2019 while employed as a process worker for the respondent, Gliderol International Pty Ltd.
The respondent concedes that the applicant sustained injury to both shoulders and both elbows, but disputes that the applicant sustained an injury to his cervical spine.
The applicant seeks an order pursuant to s 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pay the cost of a C4/5 and C5/6 discectomy and fusion proposed by the applicant’s treating neurosurgeon, Dr Abraszko.
The respondent disputes this claim on the basis that any medical or related treatment of the cervical spine is not reasonably necessary as a result of an injury sustained by the applicant in the course of his employment with the respondent.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to his cervical spine in the course of his employment with the respondent (s 4 of the 1987 Act), and
(b) whether the C4/5 and C5/6 discectomy and fusion proposed by Dr Abraszko is reasonably necessary as a result of an injury sustained by the applicant to his cervical spine in the course of his employment with the respondent (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 25 May 2023. 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.
Mr Moffet appeared for the applicant, instructed by Mr Covic. Ms Goodman appeared for the respondent, instructed by Mr Balan.
Mr Moffet made the following amendments to the Application to Resolve a Dispute (ARD) at the commencement of the hearing:
(a) The “Injury Description” was amended to:
“As a result of the nature and conditions of employment at or around 2 May 2019, or in the alternative from 2009 to 2 May 2019, the applicant sustained a personal injury to his neck, or in the alternative, an aggravation, acceleration, exacerbation or deterioration of a disease is alleged”, and
(b) The s 66 claim was discontinued.
The respondent did not object to the amendment of the “Injury Description” in the ARD on the basis that the applicant does not claim any other frank injury in the course of his employment with the respondent other than the injury claimed to have been sustained on or around 2 May 2019.
Mr Moffet asked that it be noted that the applicant attended two further appointments with Dr Powell on 23 April 2023 and 12 May 2023, and that no reports from Dr Powell had been served following those consultations. Mr Balan on behalf of the respondent advised no reports had yet to be received from Dr Powell following those two consultations.
Submissions from the parties could not be completed within the time allocated for the conciliation and arbitration on 25 May 2023 and the following directions were made:
(a)    The respondent is to lodge and serve the balance of its submissions in writing by 15 June 2023.
(b)    The applicant is to lodge and serve written submissions in reply by 29 June 2023.
(c)    A written decision will be delivered after 29 June 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    The ARD and attached documents;
(b)    Reply and attached documents;
(c)    written submissions filed by the respondent on 15 June 2023, and
(d)    written submissions filed in reply filed by the applicant on 30 June 2023.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

FINDINGS AND REASONS

Whether the applicant sustained an injury to his cervical spine in the course of his employment with the respondent on or around 2 May 2019

The applicant’s evidence

The applicant has provided a statement dated 27 February 2023.
The applicant states that he commenced work as a process worker with the respondent in October 2009.
The applicant states that on 2 May 2019 he was assembling large panels of a warehouse roller door with three colleagues. He states that they had to manually lift and move the door after it was assembled, and he estimates that the door weighed around 200kg. The applicant states that he developed significant pain and burning sensation in both arms and the pain immediately travelled upwards towards his neck as he was moving the door.
The applicant states that he reported the incident to his supervisor, Dario, and that he was in such a bad state that day that he had to leave work early.
The applicant states that he saw his usual general practitioner, Dr Tjeuw, and explained to Dr Tjeuw how his injuries developed. He states that in the ensuing week he underwent ultrasounds of both shoulders and both elbows.
The applicant states that he was told to go and see the company doctor, Dr Mulkeen. He states that he initially saw Dr Mulkeen on 14 May 2019 and commenced physiotherapy treatment. The applicant states that he continued working on light duties.
The applicant states that he had injections in both elbows between August and October 2019. He states that he started seeing Dr Chiwara at the same practice as Dr Mulkeen, and was referred to Dr Moses, who is a sports physician. The applicant states: “During this time, my neck pain was continuing to worsen.”
The applicant states that he changed his general practitioner from Dr Chiwara to Dr Hengpoonthana because Dr Hengpoonthana was closer to his home. He states that he had a MRI of the cervical spine on 26 March 2020 and his first consultation with Dr Abraszko was on 23 April 2020. He states that he has had many consultations with Dr Abraszko since then.

The medical evidence

The clinical notes from Dr Tjeuw are handwritten and abbreviated. The entry made on 2 May 2019 includes:
“Burning sensation
R & L shoulders R & L elbows
No trauma
Onset y’day”
The next entry on 6 May 2019 includes “Pain in R elbow” and what appears to be “burning sensation”. There is a Certificate of Sickness issued by Dr Tjeuw on 6 May 2019 which states: “pain in upper limbs -> neck”.
The clinical notes for an ultrasound report of the right shoulder dated 3 May 2019 are: “painful shoulder, right and left, exclude rotator cuff injury.”
The clinical notes for ultrasound reports of the right elbow on 6 May 2019 and the left elbow on 7 May 2019 are: “painful right and left elbows, over the lateral epicondyles, R>L. Clinically lateral epicondylitis.” Those reports record findings of epicondylitis in both elbows.
The clinical notes from Dr Mulkeen are in evidence. The first entry made on 14 May 2019 does not record any complaints of neck. There is a record made that upon examination there was a full range of movement of the applicant’s neck.
There is also a referral for physiotherapy from Dr Mulkeen dated 14 May 2019 which records the applicant hurting himself when lifting a 200kg garage door with a workmate. Dr Mulkeen opines that the applicant has “simple low-grade strains of rotator cuff, forearm musculature, a degree of DOMS” from the ultrasound scans of shoulders and elbows and miscellaneous findings.
The clinical notes from Dr Mulkeen record some nine attendances by the applicant between 14 May 2019 and 20 August 2019, but there is no reference to neck pain or symptoms at any of those consultations.
There are reports from Bernard Rusterholz, physiotherapist, from 17 May 2019 to 23 June 2020. The initial report dated 17 May 2019 refers to the applicant having bilateral shoulder and arm pain. The next report dated 31 May 2019 reports the applicant having “70% improvement in symptoms, though some pain remains.” A report on 9 July 2019 reports intermittent increase of left and right shoulder and elbow pain, but the applicant being able to tolerate carrying up to 20kg.
The first reference to the applicant having neck pain in the reports of Mr Rusterholz is on 4 March 2020 when Mr Rusterholz writes that the applicant “continues to be troubled by persistent and fluctuating neck and bilateral shoulder and arm pain” and that the applicant is “concerned about undiagnosed pathology in the neck and shoulders.”
There is a referral from Dr Chiwara to Dr Moses dated 19 December 2019 which refers to shoulder and elbow pain. There is no reference to any neck pain.
There is a report from Dr Moses, Sports and Exercise Medicine Physician, dated 6 January 2020 which records the applicant having injured himself on 2 May 2019 while moving an extremely heavy garage door weighing 200kg. Dr Moses writes that the applicant has no pain radiation and no neuropathic component.
Dr Moses diagnoses the applicant as suffering from both bilateral common extensor origin and distal biceps tendinosis. His recommendations for treatment are to continue with exercises and some medication.
In his next report dated 17 February 2020, Dr Moses records the applicant complaining of increased sensitivity and swelling in his elbows and burning pain. Dr Moses records on 5 March 2020 that the applicant is still experiencing “burning pain.”
On 6 April 2020, Dr Moses writes to Dr Hengpoonthana and suggests there be a referral of the applicant to a neurosurgeon.
The clinical notes from Dr Hengpoonthana are in evidence. There are references to the applicant having neck pain within two years of 2 May 2019 in attendances on 15 February 2018, 1 August 2018 and 7 December 2018. There is an entry on 6 August 2019 of pain in both elbows and both shoulders. The first reference to any neck pain is an entry on 16 April 2020, which also includes “pain radiates to both arms”. However, there are only two consultations with Dr Hengpoonthana between 6 August 2019 and 16 April 2020 which relate to the work injury, which is a period when the applicant was also attending Dr Mulkeen, Dr Chiwara, Dr Moses and Mr Rusterholz.
A MRI scan of the cervical spine is obtained prior to the applicant’s initial consultation with Dr Abraszko. The clinical notes recorded on the report of that scan dated 26 March 2020 are: “Neck pain radiating to both arms.” The report concludes:
“Moderate spondylitic changes with central local osteophytes in the proximal cervical region and broad-based osteophyte in the mid and lower cervical region compressing the thecal sac and the cord.
There is no focal disc herniation or specific nerve compression.”
In her first report dated 23 April 2020, Dr Abraszko records that the applicant was pushing a 200kg warehouse door with another person on 2 May 2019 when he immediately had neck pain and a burning sensation radiating from his neck to both shoulders. She records that the applicant denied any previous injuries.
Dr Abraszko records the applicant having painful movements of his neck towards the left and right side. She writes that the MRI of the cervical spine showed a C4/5 disc protrusion with a central right protrusion compressing the thecal sac and spinal cord, and the same right paramedian protrusion at the C5/6 level.
Dr Abraszko also records that he returned to heavy lifting about three or four months after his injury and immediately had severe pain.
Dr Abraszko recommended conservative management and pain management, which would include facet joint injections performed by Dr Manohar.
There is a report from Dr Abraszko to “Icare Workers Compensation EML” dated 30 October 2020 which is in response to reports from Dr Powell dated 21 August 2020 and 14 October 2020. Dr Abraszko confirms the history of the injury which she obtained when she first consulted the applicant. Dr Abraszko then writes:
“Dr Powell states in his report… that patient started to feel burning sensation in both the shoulders and elbows.
I discussed it with Mr Nouansengsy during his last consultation on 29 October 2020 and he confirmed that he felt pain in the neck radiating to his shoulders with burning sensation.
Dr Powell did state that Mrs Nouansengsy was a poor historian and this was probably a reason for the discrepancies in the history of the injury.”
Dr Abraszko opines that the applicant suffers from right C4/5 disc protrusion and aggravation of the previously asymptomatic disc protrusions at C5/6 and C6/7 levels. She disagrees with the opinion of Dr Powell that the right C4/5 disc protrusion is a constitutional degenerative disease process.
Dr Abraszko referred the applicant to Dr Manohar for pain management following her initial consultation with the applicant in April 2020. Dr Manohar records in his first report dated 27 May 2020 that the applicant was lifting and pushing a garage door weighing 200kg with his left hand “when he suddenly developed pain in the left hand shooting up into the neck and down the right arm.”
In his next report dated 10 June 2020, Dr Manohar writes that the applicant has pain which originates in the C4/C5, C5/C6 and C6/C7 levels. He also refers to ultrasounds taken of both elbows and the left shoulder. Dr Manohar opines that the “incident occurred on 2 May 2019 and due to his persisting symptoms, there are some chronic pain features to his current presentation.”
In his next report dated 1 July 2020, Dr Manohar writes that the applicant’s elbows were treated first, but that the applicant continued to have pain in the neck and both shoulders. Dr Manohar opines:
“There is a direct correlation between the original injury and the consequential neck pain which started at the same time when he was lifting and pushing the heavy garage door.”
The applicant has undergone further MRI scans of the cervical spine as follows:
(a) on 4 March 2021: the report records disc herniations at the C4/5, C5/6 and C6/7 levels, and
(b) on 19 August 2022: the report records multilevel disc protrusions, the worst being at C4/5 level.
The applicant sought a second opinion from another neurosurgeon, being Dr Khong, on 31 October 2022. Dr Khong records in his report of the same date that the applicant sustained an injury on 2 May 2019 when he was lifting and pushing up sheet metal panels weighing 200kg. He also records that the applicant was doing this multiple times a day. Dr Khong records that the applicant started to experience burning pain in his neck and both shoulders and arms.
Dr Khong concludes that the applicant “likely experienced a severe musculoligamentous strain as well as an exacerbation of the degenerative changes in his cervical and lumbar spine.” Dr Khong also writes that there is no neural compression to account for the applicant’s upper limb symptoms.
The applicant has been examined by Dr Endrey-Walder on three occasions at the request of his lawyers. In his first report dated 22 October 2020, Dr Endrey-Walder records that 2 May 2019 the applicant was lifting a warehouse roller door which weighed around 200kg with three other colleagues when he developed a burning pain in both upper limbs extending up to the neck.
Dr Endrey-Walder reviews the medical evidence following the incident on 2 May 2019. He concludes that the applicant suffered injuries to his upper limbs and neck while straining, lifting and shifting some very large panels of a warehouse roller door in early May 2019. Dr Endrey-Walder writes:
“Given the nature and conditions of his daily work it is not difficult to see how the heavy lifting, shifting the roller door panels, stapling, riveting would impact on his upper limbs.
The clinical impression is that his neck stiffness is now likely to be secondary to referred pain from his upper limbs to the cervical area, this impacting on some underlying, age-appropriate spondylitic changes in the cervical spine.”
Dr Endrey-Walder does not alter his opinion on the cause of the applicant’s symptoms in his cervical spine in subsequent reports dated 7 February 2022 and 23 February 2023.
Dr Powell, orthopaedic surgeon, has provided reports at the request of the respondent dated 21 August 2020, 14 October 2020, 11 January 2021 and 5 July 2022.
In his first report dated 21 August 2020, Dr Powell notes that the applicant was a compliant and cooperative patient but was not a good historian. Dr Powell writes that the applicant was accompanied to the consultation with his wife, but there is no mention of any assistance from an interpreter.
The history obtained by Dr Powell is that the applicant became aware of a burning pain involving his shoulders, upper arms and elbows during the process of assembling large panels of a warehouse door. He records that the applicant subsequently complained of the development of neck pain and was referred for a MRI scan on 26 March 2020.
Dr Powell opines that the applicant’s employment represents a substantial contributing factor in the development of bilateral elbow symptoms, but that the applicant has cervical spondylosis which is constitutional in nature. He writes that the development of these cervical spine symptoms was delayed and developed while the applicant was on light duties, and that those symptoms are consistent with the diagnosis of cervical spondylosis which represents a constitutional degenerative disease process.
In his report dated 11 January 2021, Dr Powell writes that the applicant’s complaints of neck pain “developed in an insidious fashion with investigations revealing evidence of cervical spondylosis.”
In his report dated 5 July 2022, Dr Powell writes:
“Although I accept the possibility of some overlap between the cervical spine and shoulders, I think Mr Nouansengsy’s cervical spine condition is essentially constitutional in nature, and although there are overlapping symptoms between the neck and intrinsic injuries to the shoulders and elbows, I do not think there is sufficient evidence to conclude that his employment represents the main contributing factor in the degenerative process involving the cervical spine or the lumbar spine.”

A summary of submissions

Mr Moffet for the applicant submits that the reference to the “neck” in the Certificate of Sickness from Dr Tjeuw dated 6 May 2019 is a contemporaneous record which supports the claim made by the applicant that he did injure his neck on or about 2 May 2019. There is also the record made by Dr Tjeuw of “burning sensation” on 2 May and 6 May 2019 which is consistent with symptoms in the upper limbs which emanate from an injury to the cervical spine.
Mr Moffet submits that the restrictions on lifting and carrying which are set out in reports from Mr Rusterholz during 2019 are consistent with restrictions being placed on the applicant due to ongoing symptoms with the applicant’s neck. He also submits that when Mr Rusterholz writes in March 2020 that the applicant “continues to be troubled by persistent and fluctuating neck and bilateral shoulder and arm pain” and is “concerned about undiagnosed pathology in the neck and shoulders”, this supports an inference that the applicant’s neck pain had been persisting from the time that the applicant attended for physiotherapy treatment.

Mr Moffet submits that the history recorded by Dr Abraszko at her first consultation of the applicant having neck pain and a burning sensation radiating from his neck to both shoulders while pushing a 200kg warehouse door is consistent with the initial complaints made by the applicant when he saw Dr Tjeuw on 2 May and 6 May 2019.
Ms Goodman for the respondent submits that although there is a reference to “neck” in the Certificate of Sickness from Dr Tjeuw dated 6 May 2019, there is no reference to the neck or cervical spine in the clinical notes on 2 May and 6 May 2019.
Ms Goodman points put that there is no reference to problems with the neck in the clinical notes which form part of the ultrasound reports of both elbows and right shoulder.
Ms Goodman submits that the ultrasounds which the applicant was referred for, and the subsequent treatment from Dr Mulkeen, Mr Rusterholz and Dr Moses, all concentrate on the shoulders and elbows, which were the body parts which the applicant was complaining about. She submits that there is no reference to neck symptoms causing issues with the applicant’s lifting capacity.
Ms Goodman submits that the first reference in the medical records to problems with the applicant’s neck is the MRI scan of the cervical spine taken in March 2020. She submits that there is no evidence of any misdiagnosis of the applicant’s conditions in the 10 months which followed the injurious event.
Ms Goodman also refers to the gradual improvement in the applicant’s condition which is recorded by Mr Rusterholz during the second half of 2019 and the record made by Dr Abraszko that the applicant returned to 20kg lifting some three to four months after the work injury and immediately had severe pain. Ms Goodman submits that there has been no allegation of an injury to the applicant’s neck after 2 May 2019.
Ms Goodman points out that the history recorded by Dr Abraszko of pain radiating from the neck is not consistent with the contemporaneous record in the medical certificate provided by Dr Tjeuw on 6 May 2019 of pain going upwards from the arms to the neck.
Ms Goodman submits that the history of the injury taken by Dr Powell of the applicant becoming aware of a burning sensation in both shoulders and elbows is consistent with the contemporaneous evidence. She submits that Dr Powell’s opinion ought to be accepted rather than the opinion of Dr. Abraszko, which is based on a history that is not supported by the contemporaneous evidence.

Determination

The meaning of ‘personal injury’ in s 4 of the 1987 Act was considered by Roche DP in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear), where he observed:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in [Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is ‘a sudden identifiable pathological change’.”
In the decision of Felstead Roche DP had said at [81]:
“It follows that the description of a personal injury as ‘a sudden identifiable pathological change’ is consistent with the authorities. It suggests no more than that, to qualify as a personal injury, there must be some sudden and ascertainable or dramatic physiological change or disturbance of the physiological state. Such a change or disturbance may be as simple as a bruise or a soft tissue strain”.
Ms Goodman referred to some differences in the description of how the injury was sustained by the applicant on or about 2 May 2019 in various medical reports. However, the respondent has accepted that the physical manipulation of a heavy garage door or panel by the applicant caused an injury to the applicant’s shoulders and elbows. I accept that the physical manipulation of a heavy garage door or panel by the applicant could also cause an injury to the cervical spine.
However, the difficulty facing the applicant is the lack of contemporaneous evidence supporting a finding that he did sustain an injury to his cervical spine during that incident on or about 2 May 2019. The best evidence which can be relied upon by the applicant is the reference to the neck in the Certificate of Sickness issued by Dr Tjeuw on 6 May 2019. However, against that one piece of evidence are the clinical notes on 2 May and 6 May 2019 which make no reference to the neck, the subsequent referrals for scans which are limited to the shoulders and elbows, and treatment over the ensuing 10 months from Dr Mulkeen, Mr Rusterholz and Dr Moses where there is no record made by those practitioners of any symptoms in or emanating from the neck, and no treatment of symptoms relating to the neck.
The applicant states that “during this time” his neck pain worsened, but he does not provide any more detail of the period of time that he is referring to or describe how and in what circumstances there was a worsening of his neck pain. He also does not provide any explanation as to why there are no complaints of neck pain in the records from Dr Mulkeen, Mr Rusterholz and Dr Moses until April 2020.
I do not agree with the submission made by Mr Moffet that an inference can be drawn that the applicant had persisting neck pain during the period he underwent physiotherapy treatment in 2019 and the early part of 2020 by Mr Rusterholz merely stating in March 2020 that the applicant “continues” to have persistent neck pain.
Nonetheless, the reference to symptoms in the neck in the Certificate of Sickness provided by Dr Tjeuw just four days after the incident complained of by the applicant provides concrete evidence that there was a sudden pathological change or disturbance to the applicant’s neck. That evidence supports a finding that the applicant sustained a personal injury to his neck on or about 2 May 2019 when he was manipulating a very heavy garage door with other employees.
When Dr Abraszko initially sees the applicant in April 2020, she records that the applicant immediately had neck pain and a burning sensation radiating from his neck to both shoulders when pushing a 200kg warehouse door with another employee.
There is a difference between the Certificate of Sickness which indicates that the applicant was experiencing pain in his upper limbs going up into the neck and the details recorded by Dr Abraszko of pain radiating from the neck and down the arms. However, I consider that caution needs to be exercised in drawing a finite conclusion from this. As noted by Mason P, with Beazley and Tobias JJ agreeing in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]:
“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.”
I agree with the submission made by Mr Moffet that the details of the injury which the applicant claims to have sustained to his neck on 2 May 2019 and which are recorded by Dr Abraszko when she initially the applicant are consistent with the Certificate of Sickness issued by Dr Tjeuw on 6 May 2019. Both Dr Tjeuw and Dr Abraszko record symptoms in the neck as well as pain in both upper limbs.
Dr Abraszko does not provide any opinion in her first report back to Dr Hengpoonthana as to whether the symptoms in the neck which the applicant presented with were caused by the incident on 2 May 2019, although the report does contain an implicit acceptance by Dr Abraszko that the incident on 2 May 2019 was the catalyst for the onset of symptoms in and emanating from the neck.
However, her opinion on the cause of the applicant’s neck symptoms is made clear in her report to icare on 30 October 2019, namely that the incident on 2 May 2019 caused a right C4/5 disc protrusion and aggravation of previously asymptomatic disc protrusions at C5/6 and C6/7 levels.
I prefer and accept the opinion from Dr Abraszko on the cause of the condition affecting the applicant’s cervical spine. Dr Abraszko forms this opinion on causation notwithstanding that she is aware that the only radiology taken of the cervical spine occurs over 10 months after the injurious event, and there had been no active treatment of the cervical spine for almost one year following the injurious event. Dr Abraszko is nonetheless satisfied that her patient’s problems with his neck have been as a result of manipulating a heavy garage door on or about 2 May 2019.
It is apparent from the report which Dr Abraszko provides to icare that she has given due consideration to the cause of the applicant’s condition because she states that she took the opportunity to review this particular issue with the applicant at a consultation on 29 October 2020 and was able to confirm that the applicant felt pain in the neck, radiating to the shoulders, and with a burning sensation, when manipulating a heavy warehouse door.
Furthermore, the lack of any reference to neck pain in the reports from Mr Rusterholz, Dr Mulkeen and Dr Moses until at least March 2020 does not mean that the applicant was not experiencing some symptoms in his cervical spine during this period of time. Those medical practitioners were focused on treatment of the applicant’s shoulders, but the records from Dr Tjeuw confirm that the applicant had some neck symptoms in the days following the incident at work on or about 2 May 2019 and Dr Abraszko, in her capacity as the applicant’s treating neurosurgeon, had little difficulty in accepting that the applicant’s neck symptoms were due to the injury on or about 2 May 2019.
I prefer and accept the opinion from Dr Abraszko on the cause of the condition affecting the applicant’s cervical spine over the opinion provided by Dr Powell.
Dr Powell opines that the applicant’s cervical spine symptoms were “delayed and developed” while the applicant was on light duties, and “developed in an insidious fashion”. However, I agree with a submission made by Mr Moffet that these conclusions are not consistent with the available evidence.
The Certificate of Sickness completed by Dr Tjeuw some four days after the injurious event records symptoms in the neck. It is those same symptoms which the applicant then describes to Dr Abraszko, who is the first specialist in neck surgery that the applicant sees following his work injury. Those symptoms are consistent with a sudden pathological change or disturbance to the neck.
Dr Powell also does not engage in a consideration of whether the applicant’s degenerative cervical spine might have been aggravated by the heavy and onerous task of lifting or manipulating a garage door, other than to speculate that there might be some overlap between symptoms in the cervical spine and both shoulders.
I also prefer the opinion from Dr Abraszko in her role as the applicant’s treating specialist on the diagnosis of the condition affecting the applicant’s cervical spine as a result of the injury the applicant sustained on 2 May 2019, being a right C4/5 disc protrusion and aggravation of previously asymptomatic disc protrusions at C5/6 and C6/7 levels.
The diagnosis of the applicant’s cervical spine condition is based upon the clinical judgment of the treating specialist and considerable weight should be afforded to that opinion. It is the treating specialist who bears the responsibility in making a diagnosis of a particular condition, identifying a cause or causes for that condition, and then determining what is the best treatment for that condition.
Ms Goodman refers to the MRI scan report in March 2020 which states that there is no focal disc herniation or specific nerve compression. Ms Goodman also refers to the findings made by Dr Khong that there is no neural compression to account for the applicant’s upper limb symptoms, and Dr Powell’s opinion that the applicant is suffering cervical spondylosis which is constitutional in nature.
However, Dr Abraszko identifies disc pathology at the C4/5, C5/6 and C6/7 levels from the time of her initial consultation in April 2020. Dr Manohar also identifies disc pathology at those levels in the pain management treatment which he provides for the applicant’s cervical spine condition during 2020. MRI scans taken in March 2021 and August 2022 confirm disc pathology at those levels.
It is for these reasons that I prefer the opinion provided by Dr Abraszko of the condition which affects the applicant’s cervical spine as a result of the injury sustained on 2 May 2019.
There will be a finding that the applicant sustained an injury to his cervical spine in the course of his employment with the respondent on or about 2 May 2019.

Whether the surgery proposed by Dr Abraszko is reasonably necessary as a result of the injury sustained by the applicant in the course of his employment with the respondent

The respondent’s submissions concentrated on whether the applicant sustained an injury to his cervical spine in the course of his employment with the respondent. The submissions did not specifically address the issue of whether the surgery proposed by Dr Abraszko is reasonably necessary as a result of an injury to the cervical spine.
The specific request for surgery has not been the subject of a dispute notice. However, notices issued on behalf of the respondent by icare on 14 September 2020 and by EML on 19 July 2022 dispute that any medical or related treatment for the cervical spine is reasonably necessary as a result of injury to the cervical spine.
A representative from EML wrote to the applicant’s lawyers on 20 February 2023 stating: “In relation to the surgery request please note all treatment for the cervical spine has been declined, as per dispute notice dated 14/9/20.”
I therefore consider it remains necessary for the particular issue of whether the surgery proposed by Dr Abraszko is reasonably necessary as a result of his injury to be addressed.

The applicant’s evidence

The applicant states that he has significant pain in his neck. He states that he has trouble turning his neck. He states that he has trouble sleeping and that the pain in his neck wakes him. The applicant states that he has significant pain going down the left arm from the neck.
The applicant states that he wants to have the surgery proposed by Dr Abraszko. He states that he has tried medication, injections and a lot of physiotherapy treatment, and nothing has helped his neck.

The medical evidence

Dr Abraszko initially saw the applicant in April 2020. She commenced her treatment of the applicant with a referral to Dr Manohar for pain management and specifically for facet joint injections in the cervical spine, although the reports from Dr Abraszko indicate that it was another 12 months before the applicant underwent an injection to the neck. The applicant states that he had the injection on 9 April 2021.
Dr Abraszko writes in a report dated 29 April 2021 that the applicant had a left C5-C6 facet joint injection which decreased his pain from 7 and 8 to about 5/10 on the 10 point pain scale. She also writes that if injections in the shoulder do not give him much improvement and the best improvement is what was achieved from the neck injection, then there is the possibility of discectomy and fusion at the C5/6 level if the neck pain is predominant, or a left-sided C5/6 for foraminal decompression if there is significant left arm pain.
Dr Abraszko writes on 8 July 2021 that the applicant reported a decrease in pain in the shoulders from level 7 to level 3 following injections to both shoulders.
Dr Abraszko referred the applicant to a rheumatologist, Dr Rozario, for an opinion on pain that the applicant was experiencing in the joints of his hands. Dr Abraszko also recommended that the applicant see Dr Dave for his shoulder problems.
Dr Dave writes to Dr Abraszko on 15 July 2021 that he had organised physiotherapy to treat the applicant’s shoulders, but that he considered “the priority is for him to have his cervical spine pathology addressed first.”
Dr Abraszko recommends physiotherapy for the applicant’s neck, as well as his shoulders and lower back, following a consultation on 2 December 2021.
Dr Abraszko writes following a consultation on 11 August 2022 that the applicant’s main problem is neck pain radiating down to his left shoulder. Dr Abraszko orders a new MRI scan which she reports as showing bulges on the right side at C3/4 and C4/5, and a moderate sized disc bulge at C5/6. She writes that there is no significant compression of the nerve roots on the left side. Dr Abraszko also writes that the applicant continues to have physiotherapy treatment for his neck.
Dr Abraszko writes on 27 October 2022 that she went through old scans with the applicant. She opines that the applicant’s neck pain is due to disc bulges at C3/4, C4/5, and C5/6 levels. Dr Abraszko also writes that the applicant also suffers from discogenic back pain and that the applicant is seeing Dr Khong for this condition.
Dr Abraszko writes on 8 December 2022 that the applicant is complaining of more neck pain and that the neck pain radiates to both sides. Dr Abraszko then writes:
“I reviewed his scans, MRI of the cervical spine; he had a C4-5, C5-6 disc bulge, which corresponds most likely to his problems. The rest of the changes are not clinically significant. I explained to him that his neck would never be perfect, but if the pain is related to the disc bulges, he will need to have an anterior cervical discectomy and fusion.”
In his report dated 5 July 2022, Dr Powell opines that the applicant does not require any further specific treatment for his musculoskeletal injuries and should be encouraged to expand a home based exercise program. He considers that surgery is not indicated for any of the applicant’s injuries.

Determination

I have already provided my reasons as to why I have accepted the opinion of Dr Abraszko on the cause and diagnosis of the applicant’s cervical spine, being that the incident on 2 May 2019 caused a right C4/5 disc protrusion and aggravation of previously asymptomatic disc protrusions at C5/6 and C6/7 levels.
Dr Abraszko has been treating the applicant for some three years now and has seen the applicant on over 20 occasions during this period of time. Dr Abraszko raised the possibility of neck surgery in April 2021 when the applicant appeared to have some good pain relief following an injection at the C5/6 level. However, Dr Abraszko continued to pursue non-operative treatment for the condition of the applicant’s neck, in particular pain management and physiotherapy.
Dr Abraszko referred the applicant to other specialists to allow for consideration of other medical conditions which might impact on a decision to perform surgery on the cervical spine. The shoulder specialist, Dr Dave, considered that priority should be given to treatment of the applicant’s neck condition.
I accept from the history of treatment recorded by Dr Abraszko that she has adequately pursued non-operative treatment for the applicant and has given proper consideration to the merits of the surgery which she now recommends.
Dr Abraszko identified disc pathology at the C4/5, C5/6 and C6/7 levels when she initially saw the applicant in April 2020, and she continued to identify that pathology in late 2022 as being the likely source of the applicant’s problems. This has led her to conclude that fusions at the C4/5 and C5/6 levels, which she opines from her clinical judgment to be the most significant levels of damage in the cervical spine, will alleviate some of the neck pain that the applicant has experienced although his neck “would never be perfect”.
The recommendation for surgery by Dr Abraszko, which aims to relieve pain in the neck and down the applicant’s arms, meets a central principle set out by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; NSWCCR 32 at [48A] that: “Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury”.

There will be an order that the respondent pay for the C4/5 and C5/6 discectomy and fusion proposed by Dr Abraszko, and the reasonably necessary expenses associated with that surgery.

[2023] NSWPIC 321

5 July 2023