Oghenetega v G. James Glass & Aluminium (QLD) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Oghenetega v G. James Glass & Aluminium (QLD) Pty Ltd [2023] NSWPIC 149
APPLICANT:	Oghenetega Ifoni
RESPONDENT:	G James Glass & Aluminium (QLD) Pty Limited
Member:	Anthony Scarcella
DATE OF DECISION:	12 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 4(b)(ii) injury to the cervical spine disputed; proposed treatment to the cervical spine disputed; contemporaneous evidence; Davis v Council of the City of Wagga Wagga; King v Collins; Mastronardi v State of New South Wales, Mason v Demasi; Bugat v Fox, Department of Aging, Disability and Home Care v Findlay, Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, State Transit Authority v El-Achi, AB v AW, Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd considered and applied; Held – the applicant suffered an injury to the cervical spine within the meaning of section 4(b)(ii) and his employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition deemed to have occurred on 11 February 2021; the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Michael Donnellan is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 11 February 2021 within the meaning of section 60; the respondent is to pay for the costs of and ancillary to the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Michael Donnellan at the gazetted rates.
determinations made:	The Commission determines: 1. The applicant suffered an injury to the cervical spine within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 and his employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition deemed to have occurred on 11 February 2021. 2. The right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Michael Donnellan is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 11 February 2021 within the meaning of s 60 of the Workers Compensation Act 1987. The Commission orders: 3. The respondent is to pay for the costs of and ancillary to the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Michael Donnellan at the gazetted rates.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Oghenetega Ifoni, is a 35-year-old man who was employed by the respondent, G James Glass & Aluminium (QLD) Pty Limited (James Glass & Aluminium), as a full-time truck driver.
Mr Ifoni alleges that, on 11 February 2021, he sustained injuries to his lumbar spine and cervical spine during the course of his employment with James Glass & Aluminium whilst lifting a window about 2 m in height, 1.5 m in width and about 70kg to 90kg in weight with a co-worker. He also alleges that, following the incident, he informed his supervisor but was advised to continue undertaking his duties and lifted about 10 more windows. On the same date, he was required to load a door and windows onto another truck for delivery. Mr Ifoni’s shift was of about 15 hours duration and involved a prolonged period of driving and repetitive lifting.
Mr Ifoni alleges that, as a result of the above incident, he sustained injuries to his lumbar spine and cervical spine by way of an aggravation, acceleration, exacerbation or deterioration of a disease process and/or due to the nature and conditions of his employment with James Glass & Aluminium.
Mr Ifoni lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act) and continues to receive weekly benefits compensation.
On 15 September 2021, Dr Michael Donnellan, neurosurgeon, requested approval for Mr Ifoni to undergo right C5/6 and C6/7 transforaminal steroid injections.[1]
[1] Application to Resolve a Dispute at page 38.
On 20 October 2021, AAI Limited t/as GIO (GIO), acting as the agent of NSW Self Insurance Corporation (icare), issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying injury to Mr Ifoni’s cervical spine within the meaning of s 4 of the 1987 Act and denying that the proposed right C5/6 and C6/7 transforaminal steroid injection was reasonably necessary treatment as a result of injury within the meaning of s 60 of the 1987 Act.[2]
[2] Application to Resolve a Dispute at pages 34-37.
On 15 June 2022, GIO issued a dispute notice under s 78 of the 1998 Act disputing liability for Mr Ifoni’s claimed cervical spine condition.[3]
[3] Application to Resolve a Dispute at pages 26-29.
On 12 July 2022, Mr Ifoni, through his lawyers, requested a review of the decision contained in GIO’s dispute notice dated 15 June 2022 under s 287A of the 1998 Act.[4]
[4] Application to Resolve a Dispute at page 23.
On 26 July 2022, icare issued the outcome of its review under s 287A of the 1998 Act maintaining GIO’s decision to deny liability in respect of Mr Ifoni’s cervical spine.[5]
[5] Application to Resolve a Dispute at pages 12-17.
Mr Ifoni, through his lawyers, lodged an Application to Resolve a Dispute (ARD) dated 19 December 2022 in the Workers Compensation Division of the Personal Injury Commission (the Commission) seeking a finding that the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Michael Donnellan and the caudal epidural steroid and L5/S1 translaminar epidural steroid injections proposed by Dr Laurent Wallace are reasonably necessary treatment as a result of the injury sustained by Mr Ifoni on 11 February 2021 within the meaning of s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remain in dispute:
(a) whether Mr Ifoni suffered an aggravation, acceleration, exacerbation or deterioration of any disease process to his cervical spine deemed to have occurred on 11 February 2021 within the meaning of s 4(b)(ii) of the 1987 Act;
(b) and/or whether Mr Ifoni suffered an injury to his cervical spine on 11 February 2021 (deemed) as a result of the nature and conditions of employment with the James Glass & Aluminium as alleged, within the meaning of s 4(b)(ii) of the 1987 Act, and
(c) whether the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Michael Donnellan are reasonably necessary treatment as a result of the injury sustained by Mr Ifoni on 11 February 2021 within the meaning of s 60 of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the dispute notices referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference and arbitration hearing via MS Teams on 2 March 2023. Mr Craig Tanner of counsel appeared for Mr Ifoni, instructed by Mr Fady Dous, solicitor and Mr Bill Loukas of counsel appeared for James Glass & Aluminium, instructed by Mr Darran Russell, solicitor.
During the conciliation phase and again, at the commencement of the arbitration hearing, Mr Loukas conceded on behalf of James Glass & Aluminium that the caudal epidural steroid and L5/S1 translaminar epidural steroid injections proposed by Dr Laurent Wallace are reasonably necessary treatment as a result of the lumbar spine injury sustained by Mr Ifoni on 11 February 2021 within the meaning of s 60 of the 1987 Act.
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) ARD dated 19 December 2022 and attached documents, and
(b) Reply to ARD (Reply) dated 11 January 2023 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Mr Oghenetega Ifoni’s evidence

In evidence there is a statement by Mr Ifoni dated 8 December 2022. I will now refer to the relevant parts of that statement.
Mr Ifoni stated that he had been employed by James Glass & Aluminium from 2013 until 10 November 2022, when his employment was terminated due to the extent of the injuries he suffered on 11 February 2021. At the commencement of his employment with James Glass & Aluminium, he was employed as an offsider on a full-time basis. In or about 2018/2019, he commenced employment as a full-time truck driver with James Glass & Aluminium. He worked 38 hours per week and regularly worked overtime of about 10 to 15 hours per week.
Mr Ifoni stated that his duties included, but were not limited to, loading and unloading trucks, planning routes and driving trucks for prolonged periods. The work was labour-intensive, strenuous and involved repetitive manual labour.
Mr Ifoni stated that, on 11 February 2021, he injured his back in the course of his employment whilst loading a truck with windows weighing about 80kg each with the assistance of a colleague. As he lifted a window, he felt an immediate sharp pain in the middle to lower part of his back. He reported the injury to his supervisor, Daniel, but was instructed to continue working because seven more windows required unloading. After unloading the windows, he drove a truck some five hours to deliver a sliding door that comprised of three panels weighing about 50kg each. He unloaded the truck at the delivery point and then drove five hours back to Sydney.
Mr Ifoni stated that, throughout his shift on 11 February 2021, he was in significant pain and discomfort. He completed the shift with great difficulty. On the following day, he found it difficult to get out of bed. He took some painkillers and went to work. The pain and discomfort continued. He noticed a burning pain in his lower back with electric shocks and tingling sensations down his right thigh and leg. There was also pain from his right leg to the top of his foot and toes. He experienced persistent pain in the thoracic spine and noticed a weakness and/or stiff sensation in his neck and right hand.
Mr Ifoni stated that, on 14 February 2021, he consulted Dr Magdi Zakhary, general practitioner, because of his deteriorating symptoms. Dr Zakhary certified him unfit for work for a week. Mr Ifoni returned to work three days per week, four hours per day between 22 February 2021 and April 2021. Between April 2021 and about June 2021, his work capacity fluctuated significantly due to his ongoing symptoms and he did not return to work after June 2021.
Mr Ifoni stated that he underwent an X-ray and MRI scans of his thoracic spine, lower back and cervical spine. He also underwent a nerve conduction test. He consulted Dr Michael Donnellan, neurosurgeon, who recommended injections to his lumbar spine and cervical spine. He consulted Dr Laurent Wallace, pain management specialist, who recommended an injection to his lumbar spine. He consulted Dr Omprakash Damordaran, neurosurgeon, who recommended the cortisone injections referred to by Dr Wallace. He consulted Dr Kayvan Haghighi, neurologist to ascertain whether his bladder issues were related to his back pain or the medication he was taking.
Mr Ifoni stated that he continues to undergo physiotherapy and exercise physiology once per week.
Mr Ifoni stated that he also experiences ongoing stiffness, weakness and fatigue in his neck. He struggles to move his head from side to side. The neck feels strained and he struggles to carry out repetitive movements of his neck. Range of motion and flexibility is significantly restricted. He finds it difficult to drive for prolonged periods. Turning his neck from side to side whilst driving aggravates his neck pain and because of this, he avoids driving.
Mr Ifoni stated that he relies on pain relieving medication including, Naproxen, Norflex, Allegrom, Panadeine and Endone to get through the day. Reliance on such medication and his back pain have caused him ongoing neurological issues (urinary urgency and discomfort) for which he remains under the care of Dr Haghighi.
Mr Ifoni stated that his mental health has deteriorated significantly as a result of the chronic pain he continues to experience. He now consults a psychologist fortnightly at the St Luke the Physician Medical Centre.
Mr Ifoni stated:
“I am eager to undergo the recommended injections as recommended by Dr Wallace, Dr Donnellan and Dr Iskarous to hopefully relieve my pain and discomfort to gain some control in my life.”[6]
[6] ARD at page 5 at [26].

The treating medical evidence

After having been struck on the occiput by a boom gate, Mr Ifoni underwent an X-ray of his cervical spine and a CT scan of his brain on 3 July 2017 by Dr M Liu, radiologist. The CT scan of the brain demonstrated no acute intracranial bleed or displaced skull fracture. In respect of the cervical spine, there was normal cervical lordosis maintained; there was no significant wedging or loss of cervical vertebral body height; there was no listhesis of visualised cervical vertebrae; and there was no widened predental space or significant prevertebral soft tissue swelling.[7]
[7] ARD at page 131.
In evidence, are Mr Ifoni’s clinical records produced by St Luke the Physician Medical Centre (the clinical records).[8] The first entry in the clinical records is dated 16 October 2018 and the last entry is dated 27 May 2022. There were no complaints of neck pain or of weakness in the right upper limb recorded in the clinical records prior to Mr Ifoni’s injury on 11 February 2021.
[8] ARD at pages 78-132.
On 14 February 2021, Mr Ifoni consulted Dr Zakhary of the St Luke the Physician Medical Centre. In the clinical records, Dr Zakhary recorded that Mr Ifoni had hurt his back at work on the previous Thursday and was complaining of pain in his mid-back, thoracic spine and left paraspinal muscles. There was tenderness on touch and bending was limited. No complaint of neck pain or of weakness in the right upper limb was recorded. Dr Zakhary issued Mr Ifoni with a certificate of capacity; referred him for a plain X-ray of his thoracic spine; and prescribed an analgesic and Voltaren Rapid.[9]
[9] ARD at page 96.
On 17 February 2021, Mr Ifoni consulted Dr Zakhary. In the clinical records, Dr Zakhary recorded the results of the X-ray of Mr Ifoni’s thoracic spine, namely, a compression of the T7, which had been present in imaging in 2017. Dr Zakhary advised Mr Ifoni to avoid heavy lifting and to look for a safer job.[10] No complaint of neck pain or of weakness in the right upper limb was recorded. Dr Zakhary issued Mr Ifoni with a certificate of capacity certifying him as having capacity for some work from 22 February 2021.[11]
[10] ARD at pages 96-97.
[11] ARD at pages 221-223.
On 8 March 2021, Mr Ifoni consulted Dr Zakhary. In the clinical records, Dr Zakhary recorded that Mr Ifoni complained of ongoing thoracic pain and that his employer provided him with light duties. Dr Zakhary referred Mr Ifoni for an MRI scan of his thoracic spine. No complaint of neck pain or of weakness in the right upper limb was recorded.[12]
[12] ARD at page 98.
On 15 March 2021, Mr Ifoni consulted Dr Zakhary. In the clinical records, Dr Zakhary recorded that Mr Ifoni complained of still feeling back pain when driving a truck. Dr Zakhary noted that the MRI scan of Mr Ifoni’s thoracic spine was good. Dr Zakhary recommended no heavy lifting and that Mr Ifoni continue with physiotherapy and the use of Voltaren gel. No complaint of neck pain or of weakness in the right upper limb was recorded.[13]
[13] ARD at pages 98-99.
On 7 April 2021, Mr Ifoni consulted Dr Zakhary. In the clinical records, Dr Zakhary recorded that Mr Ifoni was experiencing burning pain in his back and heaviness in his right leg. Driving to work triggered the pain. Dr Zakhary certified Mr Ifoni unfit for work for two weeks and referred him to a neurologist. No complaint of neck pain or of weakness in the right upper limb was recorded.[14]
[14] ARD at pages 100-101.
On 22 April 2021, Mr Ifoni consulted Dr Zakhary. In the clinical records, Dr Zakhary recorded that the pain in Mr Ifoni’s right leg had lessened but that he still felt intermittent weakness in the right leg. Mr Ifoni also complained of weakness in the right upper arm that had been present for months but was getting worse. On examination, reduced motor power in the right upper limb was demonstrated. Dr Zakhary referred Mr Ifoni for MRI scans of his cervical spine and brain.[15]
[15] ARD pages 101-102.
On 4 May 2021, Mr Ifoni underwent an MRI scan of his brain and cervical spine by Dr Gerrie Potgieter, radiologist. Dr Potgieter reported the clinical details as being right upper limb and lower limb weakness and radiculopathy. Dr Potgieter concluded that the MRI scan of Mr Ifoni’s brain was normal and that the cause of his symptoms could not be identified. In respect of the cervical spine, Dr Potgieter reported that alignment and vertebral body heights were preserved and that no fractures were demonstrated. The craniocervical junction to C2/3 was normal. At C3/4, left uncovertebral osteophytes formation was noted without neural compromise; the disc was within normal limits and demonstrated normal hydration; and facet joints were normal. C4/5 was normal. At C5/6, there was a small volume bilateral uncovertebral osteophytes formation without neural compromise and facet joints were normal. C6/7 was within normal limits; there was small volume bilateral uncovertebral osteophytes formation without neural compromise; and facet joints were normal. At C6/T1, the findings were normal. Dr Potgieter concluded that the MRI scan of the cervical spine was unremarkable.[16]
[16] ARD at pages 75-76.
On 31 May 2021, Mr Ifoni consulted Dr Mina Iskarous, general practitioner, also of St Luke the Physician Medical Centre. In the clinical records, Dr Iskarous, on neurological examination, noted right hand weakness; weakness in right hip flexion; right hand numbness; and right leg and right foot numbness. Dr Iskarous referred Mr Ifoni to Dr Donnellan, neurosurgeon.[17]
[17] ARD at page 105.
On 23 June 2021, Mr Ifoni consulted Dr Donnellan.[18] Dr Donnellan took the following history of injury from Mr Ifoni:
“On 11 February 2021, he was lifting some windows which weighed 70 to 80kg with a colleague. He felt sharp pain in the interscapular region. Despite the pain, he finished his shift which was actually 16 hours because of a long drive. Three days later he saw Dr Zakhary who organised further investigations. Within one to two weeks he also starts to note weakness in his right hand as well as pain in his right leg. The right-hand weakness is not associated with any pain. He says that his right hand sometimes feels clumsy. He has got pain in his right posterior calf and also across the dorsum of the foot into his right great toe. It can feel like an electric shock at times. He says his right leg does sometimes feel weak.”[19]
[18] ARD pages 138-139.
[19] ARD at page 138.
On examination, Dr Donnellan observed that Mr Ifoni had a reasonable range of motion in his cervical spine; normal power in his left upper limb; mild weakness with elbow extension, wrist extension and finger extension; right triceps jerk was reduced; and altered sensation in the right C6, C7 and C8 dermatome.
Dr Donnellan reviewed the MRI scan of Mr Ifoni’s cervical spine and observed that it demonstrated an osteophyte at C3/4 on the left and a mild disc prolapse at C6/7, which was slightly worse on the right. This, however, was unreported.

Dr Donnellan opined that, in respect of the right hand weakness, Mr Ifoni might have some mild right C7 nerve root irritation. He recommended a nerve conduction study to exclude an ulnar or median nerve problem. He also recommended an MRI scan of the right brachial plexus.
On 15 July 2021, Mr Ifoni underwent an MRI scan of his right brachial plexus by Dr Stephen Morris, radiologist. Dr Morris reported a clinical history of right hand weakness. He also reported that limited assessment of the cervical spine demonstrated posterocentral disc protrusions at C5/6 and C6/7 without suggestion of nerve root avulsion. Dr Morris concluded that there was no evidence of a right brachial plexopathy.[20]
[20] ARD at page 74.
On 28 July 2021, Mr Ifoni consulted Dr Iskarous. In the clinical records, Dr Iskarous referred Mr Ifoni for a bone scan due to severe neck and lower back pain. Dr Iskarous diagnosed neuropathic pain.[21]
[21] ARD at pages 108-109.
On 14 September 2021, Mr Ifoni underwent a bone scan by Dr Rahul Patel, radiologist.[22] Dr Patel reported no significantly active bony abnormality at C1/C2; no significantly active discovertebral arthritis or facet joint arthritis at C2/C3, C3/C4, C4/C5 and C5/C6; and moderately active discovertebral arthritis but no significantly active facet joint arthritis at C6/C7 and C7/T1.
[22] ARD at pages 72-73.
On 15 September 2021, Dr Donnellan issued a request for right C5/6 and C6/7 transforaminal steroid injections.[23]
[23] ARD at page 38.
On 24 September 2021, Mr Ifoni consulted Dr Iskarous, who issued a referral to Dr Laurent Wallace, specialist anaesthetist and specialist pain medicine physician.[24]
[24] ARD at page 110.
On 1 December 2021, Mr Ifoni consulted Dr Wallace, who reported to Dr Iskarous.[25] Dr Wallace’s focus was on the pain in Mr Ifoni’s lumbar spine.
[25] ARD at page 53-54.
On 3 March 2022, Mr Ifoni consulted Dr Donnellan. Dr Donnellan reported to Dr Iskarous that Mr Ifoni had not had the steroid injection recommended in his cervical spine. Dr Donnellan opined that Mr Ifoni required a right C7 perineural steroid injection and a right C5/6 and right C6/7 transforaminal steroid injection. Dr Donnellan stated that the injections were both diagnostic and therapeutic in purpose and that they would assist in isolating the main pain generators in Mr Ifoni’s neck. He observed that, sometimes, a few rounds of steroid injections was enough to actually resolve the condition. He was hopeful of obtaining approval from the insurer soon.[26]
[26] ARD at page 55.
On 29 June 2022, Mr Ifoni underwent a CT scan of his brain on the referral of Dr Iskarous. The reporting radiologist concluded that there was no acute intracranial abnormality identified.[27]
[27] ARD at page 70.
On 13 July 2022, Mr Ifoni underwent an X-ray of his thoracic spine by Dr Jan Masesa, radiologist, on the referral of Dr Iskarous. Dr Masesa reported that the thoracic spine was held in minimal right lateral flexion; there was no segmental subluxation; there was no vertebral wedge compression; the disc spaces were preserved; pedicles were intact; there was no lytic lesion; and there was no paravertebral soft tissue pathology.[28]
[28] ARD at page 71.
On 8 November 2022, Mr Ifoni consulted Dr Omprakash Damodaran, consultant neurosurgeon, on the referral of Dr Wallace and he reported to the latter.[29] Whilst Dr Damodaran’s focus was on Mr Ifoni’s lower back, he noted that Mr Ifoni reported feeling discomfort in the right neck and periscapular region. He also reported weakness in his right hand and right arm. Dr Damodaran was unable to explain Mr Ifoni’s right hand weakness.
[29] ARD at pages 39-40.
In a report dated 2 July 2022, Dr Iskarous diagnosed, amongst other things, a C7 nerve irritation. He noted that Mr Ifoni complained of severe weakness in the right hand affecting his grip, with an inability to hold things for long and having things falling from his hand frequently. Dr Iskarous opined that nerve injections in the cervical spine of both diagnostic and therapeutic value were recommended by Dr Donnellan but were refused by the insurer. Dr Iskarous opined that injections were commonly used as an option for treatment of nerve irritation disorders and that Mr Ifoni’s treatment to date had not yielded the desired effect.[30]

The forensic medical evidence

[30] ARD at pages 48-50.

Dr Robert Breit: 15 June 2021

On 7 June 2021, Mr Ifoni consulted Dr Robert Breit, orthopaedic surgeon, at the request of GIO. In evidence, there is a report by Dr Breit dated 15 June 2021.[31] I will now refer to the relevant parts of that report.
[31] Reply at pages 2-6.
Dr Breit took the following history of injury from Mr Ifoni:
“On 11 February 2021 he and a co-worker were lifting a window from ground level on to [sic] the truck. It was being held vertically, the bottom placed on to [sic] the truck table and then moved close to the other items against which it was placed. This gentleman felt pain in the middle of his back which was reported. He thought it was a simple strain and completed his deliveries that day but when there was still pain a few days later he saw his GP, had some tests and was given some analgesia. There was referral for physiotherapy which only started a month later and in the interim he was doing light duties. Those duties however included driving which predictably made the pain worse.”[32]
[32] Reply at page 2.
Dr Breit recorded Mr Ifoni’s complaints to include pain in the thoracic, thoracolumbar and low back region. When Mr Ifoni turned his head, he felt some posterior thoracic pain. There was low back pain and an electric shock type sensation running posteriorly in the right leg into the foot where there may be a sensation of pins and needles on the sole and around the great toe. More recently, the right hand was feeling weak but there were no radicular complaints.
On examination, Dr Breit observed a normal gait with an ability to stand on heel and toe; some tenderness at about T7 in the midline as well as in the upper part and the lower part of the lumbar spine; there was no spasm; there was an ability to forward flex to the top of the knees with symmetrical loss of extension; thoracic rotation to the right was markedly restricted compared to the left; and shoulder movement above the horizontal produced some pain in the trapezius in the thoracic region. On neurological examination, Dr Breit observed a diminished sensation in all of the right leg and below the right elbow; and carpal tunnel provocation testing was equivocal due to a complaint of a sensation of vibrating in the right hand (maybe pins and needles).
Dr Breit diagnosed mechanical back pain involving both the thoracic and lumbar regions. He opined that the shoulder restrictions related to the thoracic spine because the trapezius arises from all of the posterior spinous processes of the thoracic spine and inserts into the shoulder so that irritation of that muscle from the thoracic spine can lead to muscular restriction and secondary shoulder restriction. Thoracic rotation to the right was markedly restricted compared to the left and there was no evidence of radiculopathy. There were multiple potential pain generators in the lumbar spine.
Dr Breit opined that there was nothing to suggest that Mr Ifoni actually sustained a fracture of the T7. He opined that the lumbar disc protrusions could be attributed to the nature and conditions of Mr Ifoni’s work with repetitive heavy lifting of up to 200kg (with two people) since 2013.

Dr Robert Breit: 22 November 2021

On 22 November 2021, Dr Breit conducted a file review without re-examining Mr Ifoni at the request of GIO. In evidence, there is a file review report by Dr Breit dated 22 November 2021.[33] I will now refer to the relevant parts of that report.
[33] Reply at pages 7-9.
Dr Breit reported that Mr Ifoni made no mention of a neck issue per se in his consultation on 7 June 2021. However, Mr Ifoni did say that turning his head would result in some posterior thoracic pain and there was said to be some weakness in the right hand. Such history was repeated to Dr Adeniyi Borire, neurologist, on 18 June 2021, who carried out neurophysiological studies that did not detect any abnormality. In Dr Breit’s opinion, Mr Ifoni did not sustain an injury to his neck.
In respect of the proposed right sided transforaminal steroid injections at C5/6 and C6/7, Dr Breit stated that he had not seen a request for the injections and in his opinion, they are not reasonably necessary. Dr Borire found no clinical abnormality and the MRI scan did not report any impingement. The bone scan demonstrated discovertebral arthritis, which would not be altered by the injection procedure. Dr Breit could see no grounds on the available information for an injection.

Dr Robert Breit: 1 March 2022

On 1 March 2022, Dr Breit prepared a supplementary report without re-examining Mr Ifoni, which related to the caudal epidural steroid and L5/S1 translaminar epidural steroid injections proposed by Dr Wallace.[34] As James Glass & Aluminium has now conceded that those injections are reasonably necessary treatment as a result of the injury sustained by Mr Ifoni on 11 February 2021, this supplementary report is irrelevant.
[34] Reply at pages 14-16.

Dr Robert Breit: 30 May 2022

On 26 May 2022, Mr Ifoni consulted Dr Breit at the request of GIO’s lawyers. In evidence, there is a report by Dr Breit dated 30 May 2022.[35] I will now refer to the relevant parts of that report.
[35] Reply at pages 17-24.
Dr Breit referred to a report by Dr Borire, who described symptoms in the hand; no wasting; slightly reduced grip strength associated with poor effort; and intrinsic hand muscle groups of reasonable strength apart from occasional give way weakness. Dr Borire undertook some neurophysiological studies which were normal and demonstrated no evidence of peripheral neuropathy or radiculopathy.
When Dr Breit questioned Mr Ifoni as to when he commenced having head and neck problems, the response was that he could not recall. Dr Breit noted that, at the last assessment, there was some weakness in the right hand but that he noticed there were no radicular complaints at the time.
Dr Breit reported that Mr Ifoni’s present complaints were of constant neck pain, sometimes associated with headaches and radiating into the trapezius. There were complaints of neck noises without radicular pains. However, sometimes, the right hand felt numb and grip felt weak.
On examination of Mr Ifoni’s neck, Dr Breit observed that light axial compression of the skull produced neck pain; there was said to be tenderness in the right side of the neck extending into the trapezius; and there was symmetrical loss of movement to about one third. Neurologically, there was said to be diminished sensation in a wide area of the right upper extremity. However, it varied with re-testing.
Dr Breit opined that there was nothing to indicate that the complaint of neck pain was related to Mr Ifoni’s injury on 11 February 2021. In response to a question about whether factors other than the alleged work injury were playing a part in any incapacity for work, Dr Breit responded:
“The issue of his neck does play a part in his incapacity and whatever the reasons are for his presentation of maximisation and invalidism.”[36]
[36] Reply at page 24 at [15].

Dr Peter Khong: 6 July 2022

On 6 July 2022, Mr Ifoni consulted Dr Peter Khong, neurosurgeon and spine surgeon, at the request of his lawyers. In evidence, there is a report by Dr Khong dated 6 July 2022.[37] I will now refer to the relevant parts of that report.
[37] ARD at pages 41-47.
Dr Khong took the following detailed history from Mr Ifoni:
“Mr Ifoni reported no significant medical history.
Mr Ifoni was working as [sic] truck driver. He had been with the same company since 2013. He started working full time in 2014. He was initially the offsider in the truck, and then he became a driver. His work included loading and unloading trucks, planning routes and driving trucks. He sustained an injury on 1/2/21. He was loading a truck with windows weighing 80kgs each with a colleague. As he was lifting the window he felt a sharp pain in the mid thoracic spine. He reported the injury to his supervisor. He then went on to load 7 more windows. After this, he drove 5 hours to deliver a sliding door comprised of 3 panels weighing 50kgs each. He loaded and unloaded these. He then drove 5 hours back to Sydney.
Mr Ifoni had difficulty getting out of bed the next day due to ongoing back pain, but still went to work. He then went to see his doctor and had some imaging. Over 2 weeks he developed worsening symptoms. He noticed a burning pain in his entire lumbar spine with electric shocks and tingling sensations down the posterior right thigh and leg, and also down the anterior right leg to the top of the foot and toes. His back pain was worse with sitting. He had persistent pain in the thoracic spine. He also noticed weakness in the right hand, and had difficulty writing and would drop things. He also started to experience neck pain.
Mr Ifoni went to see a neurologist and had nerve conduction studies. He saw Dr Michael Donellan [sic], neurosurgeon, who recommended some steroid injections. He also saw a pain specialist.
Mr Ifoni complains of persistent burning pain along the entire lumbar spine. He has difficulty sitting due to this pain. He continues to have pain radiating down the right leg to the toes. When bending, he experiences midline mid to lower thoracic back pain. When turning his neck, he gets some paraspinal neck pain which radiates to his thoracic spine. His neck pain causes regular headaches.
Mr Ifoni also complains of urinary urgency with incomplete emptying. He has seen a urologist and is on medications for this.
Mr Ifoni takes Naproxen, Panadeine and Endone for pain, though the last 2 make him drowsy. He is having physiotherapy and exercise physiology.
Mr Ifoni continued to work until around June/July 2021 when he found he could not work due to worsening pain. He lives with his wife.
Mr Ifoni previously hurt his lower back in 2016 and 2017. At the time there was no radiation down the legs, and the pain gradually resolved. He also had a head injury previously when something fell on his head.
Regarding activities of daily living, Mr Ifoni cannot do any work in the garden. He tries to help with home duties but with difficulty. He can undertake activities of self care.”[38]
[38] ARD at page 42 at [2].
Dr Khong identified the medical imaging reports made available to him and reviewed the same. In respect to the MRI scan of the cervical spine dated 4 May 2021, he noted some degenerative disc disease and foraminal stenosis at the left C3/4 without cord compression.
Dr Khong’s diagnosis was one of lower back pain due to musculoligamentous strain and exacerbation of pre-existing degenerative changes at L5/S1; musculoligamentous strain in the thoracic spine; and musculoligamentous strain and exacerbation of pre-existing degenerative changes in the cervical spine.
Dr Khong noted that it was difficult to identify a pain generator for Mr Ifoni’s thoracic back pain and neck pain. There was no clear cause for his right hand weakness.
Dr Khong opined that employment was a substantial contributing factor to Mr Ifoni’s injury. Mr Ifoni was pain free, working full-time in a job requiring hours of sitting and driving as well as repetitive and often heavy lifting without any restrictions. The lifting injury caused significant pain which had persisted.
Dr Khong concluded that Mr Ifoni sustained a back injury whilst lifting at work. Over a few weeks, he started to notice lower back pain as well as neck pain. Mr Ifoni’s cervical spine injury was also related to his lifting injury. “He did not have this pain prior to his injury”.[39]
[39] ARD at page 46 at [13].
In respect of the issue as to whether the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Donnellan are reasonably necessary treatment as a result of the injury on 11 February 2021, Dr Khong stated:
“There is not much in the way of right sided C5/6 and C6/7 foraminal stenosis. The brachial plexus MRI was normal. Nerve conduction studies were normal. Mr Ifoni does not complain of radicular pain. The cause of his hand weakness is not clear. A new cervical MRI with foraminal views may provide a clearer picture to see if there is any degree of foraminal stenosis. Nonetheless these injections could still be considered reasonably necessary for diagnostic value.”[40]
[40] ARD at page 46 at [14].
Dr Khong opined that the treatment proposed by Dr Donnellan would be causally related to the subject injury. Mr Ifoni developed right hand weakness several weeks following his injury. He did not have right hand weakness prior to the injury.
Dr Khong opined that steroid injections were low risk and unlikely to cause significant adverse effects but they can have diagnostic value. Steroid injections are unlikely to cause a poor outcome and are widely accepted as a low-risk treatment option with both diagnostic and therapeutic value.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will refer to the parties’ submissions under each relevant issue for determination set out below.

James Glass & Aluminium’s submissions

Injury to the cervical spine within the meaning of s 4(b)(ii) of the 1987 Act is disputed. There is no support for such proposition.
Mr Ifoni does not have diagnostic support for the proposition that there was an injury to the cervical spine at C5/6.
Mr Ifoni claimed an exacerbation or acceleration of a disease process in the cervical spine and therefore, there needs to be support for the proposition that work was the main contributing factor. There is insufficient material before the Commission for it to be satisfied that work was the main contributing factor.
Mr Ifoni’s statement does not illuminate the issue of main contributing factor.
There was no mention of any problems with Mr Ifoni’s cervical spine in the report by Dr Damodaran dated 8 November 2022.
In his report dated 6 July 2022, Dr Khong, on whom Mr Ifoni relies, observed that there was not much in the way of right sided C5/6 and C6/7 foraminal stenosis. He did not opine that the proposed injections in respect of the cervical spine were reasonably necessary treatment.
There was some confusion between Dr Wallace and Dr Donnellan. Dr Wallace was unaware that Dr Donnellan was planning facet joint injections. Dr Wallace did not find evidence of facet joint pain. So, there was no support from Dr Wallace in respect of that issue.
The bone scan dated 14 September 2021 did not support any clinical basis for the proposed injections in respect of the cervical spine. There was no facet joint involvement. There was no nerve root impingement.
The MRI scan of the cervical spine dated 4 May 2021 reported that cervical spine alignment and vertebral body heights were preserved and that there were no fractures seen. At C5/6, there was small volume bilateral uncovertebral osteophyte formation without neural compromise and facet joints were normal. At C6/7, the disc was within normal limits. There was small volume bilateral uncovertebral osteophyte formation without neural compromise and facet joints were normal. Dr Donnellan proposed facet joint injections where the MRI scan demonstrated that everything was within normal limits and that there was no impingement.
The X-ray of the cervical spine dated 3 July 2017 revealed no significant wedging or loss of cervical vertebral body height and no spondylolisthesis of the visualised cervical vertebrae.
There are X-rays, an MRI scan and a CT scan of the cervical spine, none of which demonstrate any specific issue at the level of C5/6 where the facet joint injections are proposed.
There was no opinion in evidence that work was the main contributing factor to the claimed injury to Mr Ifoni’s cervical spine.
Mr Ifoni failed at the first evidentiary hurdle, that is, proving injury to the cervical spine from a diagnostic, pathological or historical point of view.

In the event the Commission finds that there has been an injury to the cervical spine, there is no explicit support for the injections proposed by Dr Donnellan. The criteria espoused in Diab v NRMA Ltd[41] (Diab) have not been met.
[41] Diab v NRMA Ltd [2014] NSWWCCPD 72.

Mr Ifoni’s submissions

I will firstly refer to the principal submissions made in respect of the issue as to whether Mr Ifoni sustained an injury to his cervical spine.
In Mr Ifoni’s statement dated 8 December 2022, he described the circumstances of his injury at [5]. The activities Mr Ifoni was performing on 11 February 2021 were heavy lifting activities that were typical of his job. Mr Ifoni relied on a nature and conditions basis of injury to his cervical spine to the lumbar spine and also an aggravation on 11 February 2021. Mr Ifoni was able to perform his work duties right up until that date, which was clearly the point of no return. Thereafter, he reported symptoms.
The submission that Mr Ifoni has not provided sufficient evidence to satisfy that the described activities at work were not the main contributing factor to the exacerbation of the condition in his cervical spine should not be accepted. It is a matter of common sense that Mr Ifoni was able to perform heavy lifting duties right up until 11 February 2021. There was no evidence of any other factor other than heavy lifting that would explain the sudden onset of the problems he experienced in both his lumbar spine and in his cervical spine.
In considering the issue of main contributing factor, there is an evaluation of a variety of contributing factors and the Commission is required to determine whether the work-related factor is the greatest factor. In other words, the main contributing factor overriding the contribution of other factors. There is no evidence of other contributing factors different from a contribution of work-related aggravation. So, in that sense, the Commission would be satisfied that the only evidence of aggravation is in respect of the kind of heavy lifting that Mr Ifoni performed in the course of his employment.
Dr Khong is a neurosurgeon and spine surgeon and properly qualified to comment on spinal injuries and their cause. The history taken by Dr Khong was one of the development of worsening symptoms over a period of two weeks following the episode on 11 February 2021. Dr Khong noted various symptoms that Mr Ifoni was experiencing in the neck, including paraspinal neck pain which radiated to his thoracic spine and caused headaches.
Dr Khong’s diagnosis included an exacerbation of pre-existing degenerative changes in the cervical spine. The only evidence of exacerbation was the evidence of the heavy lifting that Mr Ifoni performed as part of his employment. Contrary to James Glass & Aluminium’s submission, Dr Khong’s opinion that employment was a substantial contributing factor included the diagnoses in respect of the lumbar spine, thoracic spine and cervical spine.
There was no evidence that Mr Ifoni had cervical spine pain prior to 11 February 2021. Whilst the term substantial contributing factor is not the relevant test under s 4(b)(ii) of the 1987 Act, the Commission would be satisfied that the only explanation for the onset of cervical spine symptoms after 11 February 2021 would be stresses to the spine as a whole and in particular, to the cervical spine that day and also in the lead up to that day given the repetitive load Mr Ifoni would have had to cope with in the heavy nature of his duties.
I will now refer to the principal submissions made in respect of whether the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Donnellan are reasonably necessary treatment as a result of the injury sustained by Mr Ifoni on 11 February 2021 within the meaning of s 60 of the 1987 Act.
The Commission should defer to the treating specialist, Dr Donnellan, who has assumed professional responsibility for the care of Mr Ifoni. It cannot be suggested that the treating specialist would propose gratuitous treatment, that is, treatment of no value at all.
In his report dated 23 November 2021[42] (in evidence there appears an identical report to which I have referred but it is dated 23 June 2021), Dr Donnellan noted that Mr Ifoni had right hand weakness that had commenced within one to two weeks and that his right hand sometimes felt clumsy. Dr Donnellan noted that Mr Ifoni had a reasonable range of motion in his cervical spine; had normal power in his left upper limb; had mild weakness with elbow extension, wrist extension and finger flexion; right triceps jerk was reduced; and there was altered sensation in the right C6, C7 and C8 dermatome.
[42] ARD at pages 136-137.
Importantly, Dr Donnellan noted that the MRI scan of Mr Ifoni’s cervical spine demonstrated an osteophyte at C3/4 on the left and a mild disc prolapse at C6/7, slightly worse on the right. However, this was unreported. Dr Donnellan reviewed the medical imaging and identified pathology which the radiologist plainly missed. Dr Donnellan commented that, in terms of right hand weakness, Mr Ifoni may have some mild right C7 nerve root irritation.
Dr Khong opined that the injections proposed by Dr Donnellan could still be considered reasonably necessary for diagnostic value despite the fact that there was not much in the way of right sided C5/6 and C6/7 foraminal stenosis; the fact that the brachial plexus MRI was normal; the fact that nerve conduction studies were normal; the fact that there was no complaint of radicular pain; and that the cause of the right hand weakness was unclear.
Dr Khong opined that the treatment proposed by Dr Donnellan was causally related to the subject injury as Mr Ifoni had developed right hand weakness several weeks following his injury and did not have this prior to his injury. This provides the common sense causal connection.
In his report dated 3 March 2022, Dr Donnellan noted that, unfortunately, Mr Ifoni had not undergone the steroid injection in the cervical spine that he had recommended. Dr Donnellan stated that the injections he had proposed were both diagnostic and therapeutic in purpose and would assist in isolating the main pain generators in his neck and back. Sometimes, a few rounds of steroid injections were enough to actually resolve the condition. This was the opinion of the treating neurosurgeon.
There was no countervailing medico-legal opinion relied on by James Glass & Aluminium which could satisfactorily establish that the steroid injections may not resolve Mr Ifoni’s condition. In other words, there is a possibility that the injections may resolve the condition and Mr Ifoni is entitled to that prospect. In the alternative, both Dr Khong and Dr Donnellan confirm that there is a diagnostic value to the proposed injections.
James Glass & Aluminium did not have any medico-legal opinion that would provide a basis to exclude any diagnostic value of the proposed injections in a way that might assist Mr Ifoni’s treatment providers.
In Dr Damodaran’s report dated 8 November 2022, he reported the summary of presenting problem as a work related injury resulting in discogenic back pain and right arm weakness. Dr Damodaran noted that Mr Ifoni felt discomfort in the right neck, periscapular region and intermittent mild radiculopathy down the right arm and felt that his right hand and right arm are weak. Dr Damodaran noted that Mr Ifoni had not undergone any cortisone injections as part of his conservative management. Accordingly, it was understood by Dr Damodaran that Mr Ifoni had been involved in conservative management and that cortisone injections, if they were to be performed, would fall under the umbrella of conservative management. Dr Damodaran was unable to explain the right hand weakness, which makes three specialists grappling with that feature of Mr Ifoni’s symptoms.
Dr Khong stated that steroid injections are low risk, unlikely to cause significant adverse effects, can have diagnostic and therapeutic value and are unlikely to cause a poor outcome. There was no evidence from James Glass & Aluminium suggesting that there would be adverse effects or a poor outcome. There was no evidence contesting the proposition that they were of diagnostic value.
Dr Iskarous provided Mr Ifoni with a diagnosis that included cervical C7 nerve root irritation and that complications included severe weakness in the right hand affecting grip. Dr Iskarous noted that nerve injections in the cervical spine and lumbar spine of both diagnostic and therapeutic value were recommended by Dr Donnellan. Commenting on Dr Breit’s reference to the possible poor outcome of the proposed injections as part of Mr Ifoni’s treatment, Dr Iskarous observed that his treatment had, so far, not yielded the desired effect and that the injections were recommended as a diagnostic and therapeutic tool by his neurosurgeon. Dr Iskarous opined that injections are commonly used as an option for treatment of nerve irritation disorders.
In response to questions I posed to counsel for Mr Ifoni, it was accepted that the first reference to weakness in the right upper arm appeared in Mr Ifoni’s general practitioner clinical records on 22 April 2021. As to why it was not noted any earlier in the clinical records, Mr Ifoni relied on the case law that espouses that caution should be exercised in relation to the accuracy of clinical records. Further, in the early stages, treatment was focused on the lumbar spine as it was the immediate source of pain.
In the circumstances, Mr Ifoni sought a finding that he suffered an injury to his cervical spine and that the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Donnellan are reasonably necessary.

James Glass & Aluminium’s submissions in reply

The first reference to weakness in the right upper arm in the clinical records was on 22 April 2021, some 2.5 months after the work injury. There was no contemporaneous complaint at the time of injury by Mr Ifoni that he injured his right arm or cervical spine. There was injury to the lumbar spine with radiation downwards. The mechanism to explain injury to the cervical spine is non-existent.
It is not part of James Glass & Aluminium’s role to assist Mr Ifoni’s case in respect of a diagnosis. Mr Ifoni is expected to come to the Commission with evidence in support of a diagnosis of injury to the cervical spine. Mr Ifoni bears the onus of proof. If there was sufficient or compelling evidence, such as, diagnostic imaging or a contemporaneous complaint of an injury to the cervical spine, then there might be some grounding for the need of the proposed treatment. However, if it is now put on the basis that, the treatment as a diagnostic tool, will help Mr Ifoni determine the cause of injury, that does not fall within the parameters of s 60 of the 1987 Act.
The fact that someone has some pain in their arm some 2.5 months following an injury to a different part of their body, is not sufficient or compelling evidence that it has been caused by anything to do with that injury. The diagnostic imaging only demonstrated a pre-existing osteoarthritic change in the cervical spine. One does not know when a pre-existing osteoarthritic change might become symptomatic. Just because it happens at a certain point in time after a known injury is not compelling evidence.
The focus of treatment was on Mr Ifoni’s lumbar spine because it was the lumbar spine that was injured. It defies logic that a right-handed man would not complain of weakness in his right arm at the time of the injury, given that he is involved in manual labour. Saying a couple of months after the injury that he had also been having some pain in his right arm as well, might be revisionist.

FINDINGS AND REASONS

Injury

The legislation and legal principles

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act.
The onus of establishing injury falls on Mr Ifoni and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Department of Education and Training v Ireland[43] (Ireland) and Nguyen v Cosmopolitan Homes[44] (Nguyen).
[43] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[44] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[45] (Kooragang). As I understand it, when referring to applying “common sense”, Kirby P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[46] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.
[45] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
[46] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136].
As Parker ADP observed in Le Twins Pty Ltd v Luo,[47] “[m]ost conditions are the result of multiple factors. The question is always whether the facts as found satisfy the statutory criterion for causation.”
[47] Le Twins Pty Ltd v Luo [2019] NSWWCCPD 52 at [71].
Section 4(b) of the 1987 Act provides that “injury” includes a “disease injury”, which means a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease: s 4(b)(i); and the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease: s 4(b)(ii).
As to the meaning of disease, in Federal Broom Co Pty Ltd v Semlitch[48] (Semlitch), Kitto J said:
“In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason I can see for reading it in the present context as not extending to mental illness.”[49]
[48] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
[49] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 632.
In Commissioner for Railways v Bain[50] Windeyer J stated:
“The word ‘disease’ seems to me apt to describe any abnormal physical or mental condition that is not purely transient …”[51]
[50] Commissioner for Railways v Bain [1968] HCA 5; 112 CLR 246.
[51] Commissioner for Railways v Bain [1968] HCA 5; 112 CLR 246 at 272.
In Perry v Tanine Pty Ltd t/as Ermington Hotel[52] (Perry), Burke CCJ held carpal tunnel syndrome to be a “disease,” saying:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”[53]
[52] Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253.
[53] Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253 at [57].
In Semlitch, Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.[54]
[54] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
In Semlitch, Windeyer J said:
“The question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[55]
[55] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 639.
In Semlitch, Windeyer J also posed the following questions:
“Was the applicant suffering from a disease? If so, was there an aggravation, acceleration, exacerbation or deterioration of it? If so, was her (or his) employment a contributing factor? If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?”[56]
[56] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 638.
The proper test is whether the aggravation impacted the individual concerned. It is not necessary for the particular disease to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond[57] (Raymond) applying Semlitch and Cant. In Raymond, Roche ADP (as he then was) was satisfied that, on the whole of the evidence, it was open to the Arbitrator to conclude that the worker suffered an aggravation of his occupational asthma, in the sense that the symptoms increased and became more serious while employed.[58]
[57] Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132; (2006) 6 DDCR 79.
[58] Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132; (2006) 6 DDCR 79 at [45]-[47].
Section 4(b)(i) and 4(b)(ii) of the 1987 Act require that the employment must be the main contributing factor to the injury, namely, the contraction of a disease or the aggravation, acceleration, exacerbation or deterioration of the disease condition.[59] The word “main” in the phrase “main contributing factor” means “chief” or “principal”.[60]
[59] Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013: 8 April 2014).
[60] Meaney v Office of Environment and Heritage – National Parks and Wildlife Service [2014] NSWWCC 339 at [138]-[147] and Wayne Robinson v Pybar Mining Services Pty Ltd [2014] NSWWCC 248 at [78]-[88].
Roche DP in State Transit Authority v El-Achi[61] (El-Achi) said:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”[62]
[61] State Transit Authority v El-Achi [2015] NSWWCCPD 71.
[62] State Transit Authority v El-Achi [2015] NSWWCCPD 71 at [72].
In AB v AW[63], Snell DP agreed with the above quoted passage in El-Achi and observed that:
“The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.”[64]
[63] AB v AW [2020] NSWWCCPD 9.
[64] AB v AW [2020] NSWWCCPD 9 at [78].

Consideration and findings

The first reference to weakness in the right upper arm in the clinical records was on 22 April 2021. Dr Zakhary recorded that the weakness in the right upper arm had been present for months but was getting worse. On examination, Dr Zakhary observed that reduced motor power in the right upper limb was demonstrated. Dr Zakhary referred Mr Ifoni for MRI scans of his cervical spine and brain.
I reject James Glass & Aluminium’s submission that reporting right upper limb issues some 2.5 months after 11 February 2021 might be considered revisionist on the part of Mr Ifoni. I accept Mr Ifoni as a witness of truth, who did his best to provide a history of his injuries, his treatment and his complaints of symptoms to his various treating doctors and the forensic medical specialists. The histories he provided of injury, treatment and complaints of symptoms were, in the main, consistent. Further, I accept that in the early stages, treatment was focused on the lumbar spine as it was the immediate source of pain.

The value of contemporaneous evidence has been repeatedly endorsed by the courts. However, the absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence: Owen v. Motor Accidents Authority of NSW[65]and Bugat v Fox.[66] While independent corroboration of complaints of pain will often be helpful and relevant in assessing the probative value of the evidence overall, such evidence is not a “requirement” that must be satisfied before a decision maker can feel actual persuasion about the existence of a fact in issue: Department of Aging, Disability and Home Care v Findlay[67].
[65] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [52].
[66] Bugat v Fox [2014] NSWSC 888 at [31], [32] and [34].
[67] Department of Aging, Disability and Home Care v Findlay [2011] NSWWCCPD 65.
Histories in medical records are often used to attack the credit of a worker. Reference is made either to a failure to mention relevant matters, or a description in a medical record which is different to what the worker now says in evidence. Care should be taken when considering such evidence, not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga[68]; and applied in King v Collins[69] and Mastronardi v State of New South Wales[70]. Inconsistencies between a party’s evidence and medical histories in clinical records should be treated with caution: Mason v Demasi.[71]
[68] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
[69] King v Collins [2007] NSWCA 122.
[70] Mastronardi v State of New South Wales [2009] NSWCA 270.
[71] Mason v Demasi [2009] NSWCA 227.
I acknowledge that caution must be taken when relying on clinical records. I have exercised caution in this regard in respect of Mr Ifoni’s clinical records and considered the evidence relating to the disputed injury to the cervical spine.
In the MRI scan of Mr Ifoni’s cervical spine dated 4 May 2021, Dr Potgieter reported that there was a small volume bilateral uncovertebral osteophytes formation without neural compromise and facet joints were normal at C5/6. He reported that C6/7 was within normal limits; there was small volume bilateral uncovertebral osteophytes formation without neural compromise; and facet joints were normal.
However, on 23 June 2021 and 23 November 2021, Dr Donnellan, Mr Ifoni’s treating neurosurgeon, on reviewing the cervical spine MRI scan of 4 May 2021, observed a mild disc prolapse at C6/7, which was slightly worse on the right that had been unreported. On examination, Dr Donnellan observed that Mr Ifoni had a reasonable range of motion in his cervical spine; normal power in his left upper limb; mild weakness with elbow extension, wrist extension and finger extension; right triceps jerk was reduced; and altered sensation in the right C6, C7 and C8 dermatome. Dr Donnellan recommended a nerve conduction study to exclude an ulnar or median nerve problem and also recommended an MRI scan of the right brachial plexus.
The nerve conduction study revealed no abnormalities.
In Dr Morris’ report dated 15 July 2021 in respect of the MRI scan of the right brachial plexus, he stated that limited assessment of the cervical spine demonstrated posterocentral disc protrusions at C5/6 and C6/7 without suggestion of nerve root avulsion. He concluded that there was no evidence of a right brachial plexopathy.
In the bone scan report by Dr Patel dated 14 September 2021, he reported no significantly active bony abnormality at C1/2; no significantly active discovertebral arthritis or facet joint arthritis at C2/3, C3/4, C4/5 and C5/6; and moderately active discovertebral arthritis but no significantly active facet joint arthritis at C6/7 and C7/T1.
On 15 September 2021, Dr Donnellan issued a request for right C5/6 and C6/7 transforaminal steroid injections.
I do not accept James Glass & Aluminium’s submission that there was some confusion between Dr Wallace and Dr Donnellan because Dr Wallace was unaware that Dr Donnellan was planning facet joint injections. It was irrelevant that Dr Wallace was unaware that Dr Donnellan was planning facet joint injections because Dr Wallace was referring to the treatment and management of Mr Ifoni’s lumbar spine.
On 30 May 2022, Dr Breit opined that there was nothing to indicate that Mr Ifoni’s complaint of neck pain was related to his injury on 11 February 2021. Dr Breit provided a list of the documentation provided to him by the lawyers for GIO and included in that list, was the report of Dr Donnellan dated 23 November 2021. Dr Breit referred to “various radiological reports”[72] but did not specifically identify them. However, it was apparent from his report that he had access to the cervical spine MRI scan report dated 4 May 2021. Dr Breit did not refer to or engage with Dr Donnellan’s interpretation of his review of the MRI scan, namely, the unreported mild disc prolapse at C6/7, which was slightly worse on the right.
[72] Reply at page 18 at [17].
In a report dated 2 July 2022, Dr Iskarous diagnosed, amongst other things, a C7 nerve irritation. He noted that Mr Ifoni complained of severe weakness in the right hand affecting his grip, with an inability to hold things for long and having things falling from his hand frequently.
On 6 July 2022, Dr Khong diagnosed, amongst other things, that Mr Ifoni had suffered a musculoligamentous strain and exacerbation of pre-existing degenerative changes in the cervical spine and that employment was a substantial contributing factor to Mr Ifoni’s injury. The only evidence of exacerbation was the evidence of the heavy lifting that Mr Ifoni performed as part of his employment.
I prefer the opinions expressed by Dr Donnellan over those expressed by Dr Breit. As the treating neurosurgeon, Dr Donnellan was in a better position to assess Mr Ifoni’s symptoms and any relevant pathology. Dr Donnellan found pathology in the cervical spine MRI scan itself that other medical practitioners had not. Dr Breit acknowledged Mr Ifoni’s reported symptoms (constant neck pain, sometimes associated with headaches and radiating into the trapezius) but did not explain the actual path of reasoning by which he arrived at the opinion that Mr Ifoni did not injure his cervical spine. He simply concluded that there was nothing to indicate that Mr Ifoni’s complaint of neck pain was related to his injury on 11 February 2021. It was nothing more than a mere assertion without proof. I give little weight to Dr Breit’s evidence for the reasons stated above.
Whilst Dr Khong observed that there was not much in the way of right sided C5/6 and C6/7 foraminal stenosis, he also did not refer to or engage with Dr Donnellan’s interpretation of his review of the cervical spine MRI scan dated 4 May 2021, namely, the unreported mild disc prolapse at C6/7, which was slightly worse on the right. Dr Khong nevertheless diagnosed a musculoligamentous strain and exacerbation of pre-existing degenerative changes in the cervical spine.
I accept that Mr Ifoni has experienced right sided neck and upper limb symptoms shortly after 11 February 2021. There was no evidence that he had experienced such symptoms prior to 11 February 2021. There is no evidence of other contributing factors other than from a contribution of work-related aggravation or exacerbation of pre-existing degenerative changes in the cervical spine.
The unchallenged evidence is that, on 11 February 2021 and for many years prior, Mr Ifoni had performed heavy lifting activities in his employment with James Glass & Aluminium. There was no evidence of any other factor other than heavy lifting that would explain the sudden onset of the problems he experienced in his lumbar spine, cervical spine and right upper limb.
I am satisfied that the only explanation for the onset of cervical spine and upper limb symptoms after 11 February 2021 were stresses to the spine as a whole and in particular, to the cervical spine on that day and also in the lead up to that day, given the repetitive loads Mr Ifoni had to cope with in the heavy nature of his duties.
I reject James Glass & Aluminium’s submission that there was no opinion in evidence that work was the main contributing factor to the claimed injury to Mr Ifoni’s cervical spine. Medical evidence to address the ultimate question of whether the test of “main contributing factor” is relevant and desirable. However, its absence is not necessarily fatal, as satisfaction of the test is to be considered on an evaluation of the whole of the evidence, which I have addressed above.
I am satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Mr Ifoni suffered an injury to the cervical spine within the meaning of s 4(b)(ii) of the 1987 Act and that his employment with James Aluminium & Glass was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition deemed to have occurred on 11 February 2021.

The proposed treatment
The legislation and legal principles

Section 60(1) of the 1987 Act relevantly provides that, if as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the worker’s employer is liable to pay, in addition to any other compensation under the Act, the cost of that treatment or service.
Section 60(5) of the 1987 Act relevantly provides the Commission with jurisdiction to determine a dispute concerning any proposed treatment or service and the compensation that will be payable under s 60 of the 1987 Act in respect of any such proposed treatment or service. In this case, the proposed treatment is the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Donnellan.
There are two elements to s 60(1) of the 1987 Act that must be considered. The first element is “as a result of an injury received by a worker”. The second element is that of “reasonably necessary” treatment.
Dealing with the first element, namely, “as a result of injury received by a worker”, I am required to conduct a common sense evaluation of the causal chain to determine whether the proposed right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Donnellan are reasonably necessary treatment as a result of the injury sustained by Mr Ifoni on 11 February 2021 within the meaning of s 60 of the 1987 Act.
Murphy v Allity Management Services Pty Ltd[73] referred to Kooragang and is authority for the proposition that an injured worker must establish that the injury materially contributed to the need for the treatment or the surgery. The need for surgery can arise from multiple causes. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. Mr Ifoni only has to establish, applying the common sense test of causation, that the treatment is reasonably necessary “as a result of” the injury. That is, he has to establish that the injury materially contributed to the need for the surgery.
[73] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
Turning to the “reasonably necessary” element, Roche DP in Diab set out the “standard” test adopted for determining if medical treatment is reasonably necessary in Rose v Health Commission (NSW)[74] (Rose) and he noted subsequent appellate authority with respect to the use of the words “reasonably necessary”.
[74] Rose v Health Commission (NSW) (1986) 2 NSWCCR 32.
Roche DP’s observations in Diab of the words “reasonably necessary”, after noting the appellate authority, may be summarised as follows:
(a)     reasonably necessary does not mean “absolutely necessary”;
(b)    depending on the circumstances, a range of different treatments may qualify as “reasonably necessary” and a worker only has to establish that the treatment claimed is one of those treatments;
(c)    the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ in Rose:
(i)the appropriateness of the particular treatment;
(ii)the availability of alternative treatment, and its potential effectiveness;
(iii)the cost of the treatment;
(iv)the actual or potential effectiveness of the treatment, and
(v)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
(d)    in respect of the criteria referred to in (c)(iv) above, while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost;
(e)    bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary;
(f)    while the above matters are useful heads for consideration, the essential question remains whether the treatment was reasonably necessary, and
(g)    as always, each case will depend on its facts.

Consideration and findings

Dr Breit opined that the right sided transforaminal steroid injections at C5/6 and C6/7 were not reasonably necessary. He formed the view that there were no grounds for the procedure on the available information. Dr Breit opined that the MRI scan did not report any impingement; the bone scan demonstrated discovertebral arthritis, which would not be altered by the injection procedure; and the nerve conduction study demonstrated no abnormality. However, Dr Breit did not have regard to Dr Donnellan’s interpretation of the MRI scan dated 4 May 2021, namely, the unreported mild disc prolapse at C6/7, which was slightly worse on the right. For the reasons already stated above, I give Dr Breit’s opinion in this regard little weight.
On 23 June 2021, Dr Donnellan examined Mr Ifoni and reviewed the MRI scan dated 4 May 2021. Dr Donnellan opined that, in respect of the right hand weakness, Mr Ifoni might have some mild right C7 nerve root irritation. He recommended a nerve conduction study to exclude an ulnar or median nerve problem. He also recommended an MRI scan of the right brachial plexus.
On 28 July 2021, Mr Ifoni consulted Dr Iskarous, who referred Mr Ifoni for a bone scan due to severe neck and lower back pain. Dr Iskarous diagnosed neuropathic pain.
On 15 September 2021, Dr Donnellan issued a request for right C5/6 and C6/7 transforaminal steroid injections after having had the benefit of the results of the nerve conduction study, the MRI scan of the right brachial plexus and the bone scan, which did not explain the symptoms in Mr Ifoni’s cervical spine and right upper limb.
On 3 March 2022, Dr Donnellan opined that Mr Ifoni required a right C7 perineural steroid injection and a right C5/6 and right C6/7 transforaminal steroid injection. Dr Donnellan stated that the injections were both diagnostic and therapeutic in purpose and that they would assist in isolating the main pain generators in Mr Ifoni’s neck. Dr Donnellan observed that, sometimes, a few rounds of steroid injections were enough to actually resolve the condition. I prefer the opinion of the treating neurosurgeon, Dr Donnellan, in this regard for the reasons previously stated. Dr Donnellan’s opinion was supported by Dr Iskarous and Dr Khong.
On 2 July 2022, Dr Iskarous diagnosed, amongst other things, a C7 nerve irritation. He opined that the injections proposed by Dr Donnellan were commonly used as an option for treatment of nerve irritation disorders and that Mr Ifoni’s treatment to date had not yielded the desired effect.
Whilst Dr Khong suggested, on 6 July 2022, that a new cervical MRI with foraminal views may provide a clearer picture to see if there was any degree of foraminal stenosis, he nonetheless opined that the proposed injections could still be considered reasonably necessary for diagnostic value. Further, Dr Khong opined that steroid injections were low risk and unlikely to cause significant adverse effects but can have diagnostic value. He opined that steroid injections are unlikely to cause a poor outcome and are widely accepted as a low-risk treatment option with both diagnostic and therapeutic value.
There was no countervailing medico-legal opinion relied on by James Glass & Aluminium which could satisfactorily establish that the steroid injections may not resolve Mr Ifoni’s condition or be of diagnostic assistance in isolating the main pain generators in Mr Ifoni’s cervical spine, which in turn, could lead to other appropriate treatment.
Dr Khong opined that the treatment proposed by Dr Donnellan was causally related to the subject injury as Mr Ifoni had developed right hand weakness several weeks following his injury and did not have this prior to his injury and this provided the common sense causal connection that the injury to Mr Ifoni’s cervical spine materially contributed to the need for the proposed treatment.
I am satisfied and find that the injury to Mr Ifoni’s cervical spine materially contributed to the need for the proposed treatment.
Mr Ifoni had undergone conservative treatment to date in respect of his cervical spine and upper limb symptoms. Mr Ifoni’s treatment and medical investigations to date had not yielded the desired effect. I am satisfied that the proposed treatment was conservative in nature. I am satisfied that the proposed treatment has the potential effect of alleviating or even resolving Mr Ifoni’s symptoms. He should not be denied that opportunity. No issue was raised by James Glass & Aluminium in respect of the cost of the proposed treatment. The preponderance of the medical evidence supports the proposed treatment as being reasonably necessary and likely to be beneficial in the circumstances of this case.
I am satisfied and find that, applying the principles referred to in Diab, the treatment proposed by Dr Donnellan is reasonably necessary.
Accordingly, I am satisfied and find that Mr Ifoni has discharged the onus of proving that the right C5/6 and C6/7 transforaminal steroid injections proposed by Dr Donnellan are reasonably necessary treatment as a result of the injury sustained by Mr Ifoni on 11 February 2021 within the meaning of s 60 of the 1987 Act.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2023] NSWPIC 149

12 April 2023