Pallone v Woolworths Group Limited
[2023] NSWPIC 107
•15 March 2023
CERTIFICATE OF DETERMINATION OF MEMBER Citation:
Pallone v Woolworths Group Limited [2023] NSWPIC 107
APPLICANT: Mary Pallone RESPONDENT: Woolworths Group Limited Member: John Wynyard DATE OF DECISION: 15 March 2023 CATCHWORDS:
WORKERS COMPENSATION - Claim for lump sum compensation for accepted injuries to the lumbar spine and scarring; claim for injury or consequential condition to the cervical spine denied; whether applicant claimed that she injured her neck in the subject incident; whether medico-legal advice confused; whether lack of corroboration by treating surgeon as to applicant’s complaints of neck pain on awakening from surgery relevant; whether there was a lack of corroboration by hospital nursing staff in the clinical notes for that claim; whether clinical notes of the relevant medical centre relevant in causation argument; Held – applicant’s statement to medico-legal specialist without contemporaneous support and initially speculative and in second statement reconstructed and unreliable as to whether she injured her cervical spine in the subject injury of 10 March 2018, both statements having been made in 2022; observations about effect of legal assistance in preparation of statements; medico-legal opinion accepted that no injury as the evidence did not support question of contributing factor; also accepted as to cause of cervical symptoms being applicant’s positioning during back surgery; claim that applicant’s statement regarding her complaints to hospital staff and the treating surgeon not reliable rejected; Qannadian v Bartter Enterprises considered and applied on analysis of evidence; claim that subsequent complaints not contemporaneous rejected; award for the applicant in respect of cervical spine consequential condition.
determinations made: The Commission finds:
1. Ms Pallone suffered a consequential condition in her cervical spine as a result of the way she was positioned during her back surgery on 28 June 2019.
The Commission orders:
1. I remit this matter to the President for referral to Medical Assessor on the following bases:
Date of injury: 10 March 2018.
Matters for assessment: lumbar spine; cervical spine, and TEMSKI/scarring.
Evidence: Application to Resolve a Dispute and attached documents; Application to Admit Late Documents dated 30 January 2023 from the applicant, and Reply and attached documents.
STATEMENT OF REASONS
BACKGROUND
1.Mary Pallone, the applicant, brings a claim for lump sum compensation against Woolworths Group Limited, the respondent, in respect of an accepted injury to the lumbar spine and scarring, together with additional impairment caused to the cervical spine.
2.Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.
ISSUES FOR DETERMINATION
3.The parties agree that the following issues remain in dispute:
(a) did the applicant suffer injury to her cervical spine?
(b) did the applicant suffer a consequential condition to her cervical spine resulting from the injury to her lumbar spine?
PROCEDURE BEFORE THE COMMISSION
4.This matter was listed for conciliation and arbitration hearing on 7 February 2023. The applicant was represented by Mr Ty Hickey of counsel instructed by Ms Melina Cugalj. The respondent was represented by Mr Tony Baker of counsel instructed by Mr Brad Quillan.
Mr Marco Amprimo appeared for the insurer.5.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
6.The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
Oral evidence
7.No application was made regarding oral evidence.
FINDINGS AND REASONS
8.At the commencement of the proceedings Mr Hickey amended the pleadings by deleting the second paragraph of the injury description in the ARD form and substituting therefor “She also suffered an injury to her neck on that occasion and/or a consequential condition as a consequence of her positioning during surgery on her back”.
9.Ms Pallone injured her lumbar spine whilst lifting bin liners in the course of her duties for the respondent, Woolworths Group Limited. Liability was accepted. Ms Pallone made two statements regarding her declined claim for lump sum compensation for impairment caused to her neck. She claims that she either injured her neck in the subject incident of
10 March 2018, or that as a result of her positioning on the operating table when she came to back surgery with Associate Professor Mark Sheridan on 28 June 2019, she suffered a consequential injury. For convenience, I shall refer to Associate Professor Sheridan in these reasons as “Dr Sheridan”.Applicant’s statement dated 7 September 2022
10.In her first statement the applicant said:
“1. I refer to the injury suffered in the course of my employment on 10 March 2018 to my back and consequential injury to my neck.
2. Liability for my back injury continues to be accepted by the workers compensation insurer, however liability for my neck has been disputed.”
11.She described the onset of her neck symptoms as follows:[1]
“5. I developed symptoms into my right and left leg, predominantly my right leg. These symptoms included pins and needles as well as a sharp, stabbing sensation into my legs. At times I feel as though my right foot becomes dead.
6. I came under the care of Dr Mark Sheridan, who performed a discectomy surgery on 28 June 2019.
7. Immediately following surgery, I began to experience pain in my neck, extending down my arms, primarily my right arm. The arm pain was in the form of numbness and tingling.”
[1] ARD page 1.
12.Ms Pallone alleged she had support from the treating surgeon, Dr Sheridan as she said:
“8. I consulted Dr Sheridan about my neck pain, and he advised that it was not unusual, as I was not lying flat during surgery. He indicated that my neck was craned in awkward position during surgery, so that Dr Sheridan could access the correct disc in my lumbar spine.”
13.Ms Pallone detailed her subsequent neck treatment, which included MRI investigation and physiotherapy.
14.Ms Pallone described the restrictions caused by her neck pain. They included driving difficulties, migraine, and a continued experience of sharp pain in the neck going down the right arm and through to the hand. This has affected her grip strength in her right hand, and she gave a number of examples.
Applicant’s supplementary statement
15.On 6 December 2022 the applicant made a further statement which was part of an Application to Admit Late Documents. In view of the significance that has been attached to this document it has been necessary to copy and paste most of it in these reasons. In this statement Ms Pallone stated:
“1. I refer to my neck injury, which I assert was injured as a consequence of my employment, either in the incident of 10 March 2018 or consequential to my back injury.
2. I understand the workers compensation insurer is critical of limited complaints that I made to doctors in relation to my neck injury, both around the time of 10 March 2018 and after my surgery by Dr Sheridan.
3. I have read and reviewed the report of Dr John Brian Stephenson, who indicates that it is likely that I suffered an injury to my neck during the incident on 10 March 2018 itself.
4. I remember experiencing some stiffness and slight pain in my neck immediately following the 10 March 2018 incident, but it was not substantial and wasn't bad enough for me to seek any treatment. At the same time, the pain in my back was excruciating and naturally was the focus of my attention.
5. Because of my back pain, I was constantly taking painkillers. This also helped with any minor neck pain I was experiencing, and the neck was very manageable.
6. Certainly, I did not think that my neck was noteworthy or of significant concern at that time, and my priority was my back. For this reason, I did not talk to my doctors about my neck.
7. I experienced immediate pain in my neck after the surgery, with numbness down my right arm.
8. I definitely complained to the physiotherapist at the Hospital that my neck was sore. This happened when the physiotherapist was helping me out of bed. I do not recall the name of that physiotherapist, although this may be reflected in the St George Hospital records.”
16.Ms Pallone said:
“9. I was extremely distressed by the numbness in my arm, and remember calling for help while in hospital. The Hospital staff came running and gave me an injection into my IV. I do not know what this was. The injection helped relieve the problems in my arm but I was terrified, so the Hospital staff continued monitoring me. The Hospital staff told that they would advise Dr Sheridan of the neck problems.”
17.Ms Pallone stated that she did not react well to anaesthetic and that she was extremely unwell when she was in hospital, where managing her nausea was a priority.
18.She said:
“10. …. I do recall that I complained further about my neck than the above. I was obviously still in pain while recovering from surgery, but my short-term attention while I was in Hospital was my general nausea and the consequences of the anaesthetic.”
19.Ms Pallone noted that the insurer was critical of her for not having complained to Dr Sheridan for several months but she said “I did not get a post-op appointment with him for some time”.
20.Ms Pallone said at [12]:
“Additionally, I was still focused on my recovery post-back surgery and was taking heavy painkillers, which was addressing the neck pain too. The neck pain was ongoing and, while the painkillers helped, they were not enough and the pain continued. Over time, I realised I could not manage the neck problems, and sought help from my doctors.
13. Clearly something changed about my neck about my neck after my surgery and when I left hospital, because my modest neck problems were very manageable prior to the surgery.”
St George Hospital notes
21.Ms Pallone lodged the handwritten Patient Progress Notes from 28 June 2019 to
30 June 2019 following her lumbar surgery.[2] They showed the following:[2] ALD from page 4.
“● At .40pm on 28 June Ms Pallone was nauseated and incontinent.
· At 5am on 29 June she was mobilised to toilet. She was complaining of nausea and IV Maxalon was given.
· At 12pm on 29 June the physiotherapist attended, but was not otherwise identified. The notes may have been entered by the physiotherapist. They noted complaints of nausea and that she stood and mobilised but was limited by nausea. ‘D/C advice’ was given and explained.
· At 1pm on 29 June the entry noted ‘pain ++ when mobilising’ and that Ms Pallone was reluctant to take analgesia due to her nausea.
· At 6pm on 29 June it was noted that she had been seen by Dr Sheridan and that she could go home the following day.
· At 4am on 30 June she was given analgesia for her pain with good effect.
· At 10:45am on 30 June further notes stated that Ms Pallone reported ongoing nausea and slight dizziness. Other observations show her to be stable, but she was limited by her nausea and pain issues and the note said that it was ‘not appropriate for [discharge] home today’.
· At midnight on 30 June Ms Pallone was nauseous with no vomiting observed. The notes read: ‘Tingling sensation both arm [sic]. Feeling hot temp’. Ms Pallone was given an antiemetic for her nausea.
· At 12:30am on 30 June a further note in the nursing observations said ‘tingling sensation VL (bilateral arm)’. Nausea was also recorded. The handwriting was unclear, but what appears to be ‘neuro[illegible] deficit’ appears next to some unintelligible writing. Two lines further down Ms Pallone’s vital and neurological signs were observed to be stable. The entry concluded ‘continue neuro obs + care.’
· On 1 July at 2am the entry noted that Ms Pallone nil complaints of nausea and vomiting. ‘Neuro obs satisfactory.’
· At 9:15pm on 1 July 2019 and the nursing notes stated that the patient was ‘coherent and orientated.’ She was to be discharged and the IVC was removed.”
Clinical notes Harrington Park Medical Centre
22.There was no complaint from Ms Pallone concerning her neck until 5 September 2019, when Dr Abi-Hanna recorded:[3]
“struggling with duties
continuously busy for 4 hrs
lethargic
ongoing numbness to left leg
right sided neck pain / stiffness
given stretches by physiotherapist
may need some hands on therapy
slight stiffness to neck range of motion”
[3] ARD page 115.
23.Complaints about neck and arm pain were thereafter regularly made to Dr Abi-Hanna.
Dispute notices
24.Liability was declined in the dispute notices of 3 June 2021 and 6 September 2022 on the basis that Ms Pallone had suffered neither a neck injury nor a consequential neck condition.
25.On 3 June 2021 the insurer asserted that no doctor had provided any convincing opinion regarding the cause of Ms Pallone’s cervical spine symptoms. The contemporaneous reporting, the insurer said, suggested development over a year after the work incident. Whilst Dr Sheridan, Dr Wallace and Dr Stephenson accepted Ms Pallone’s account of cervical spine symptoms extending into her right arm, the insurer said none of the doctors addressed how they were attributable to the work incident, or to the onset of a consequential condition.
26.The insurer had obtained advice from Dr Richard Powell, who although taking a consistent history of the onset of Ms Pallone’s cervical spine condition following surgery, was not convinced that her complaints were related to her employment.
27.In the second dispute notice dated 6 September 2022, again the insurer noted that the clinical records obtained did not support either Ms Pallone’s claim that she injured her neck on 10 March 2018 or that her cervical spine symptoms had been caused as a result of the surgery with Dr Sheridan. It was noted that Dr Sheridan did not record any complaint of neck pain until three months following the surgery on 28 June 2019.
Dr Sheridan
28.Dr Mark Sheridan, neurosurgeon, wrote three reports relevant to this dispute dated
24 September 2018, 16 September 2019, and 8 November 2019.29.In his report of 24 September 2018, which was addressed to Ms Pallone’s general practitioner (GP) Dr Roy Abi-Hanna, Dr Sheridan suggested that surgery on the lower back might be warranted.
30.On 16 September 2019 Dr Sheridan reported that Ms Pallone was slowly recovering from her microdiscectomy and was back at work on light duties. He said:
“She also has some pain in her neck and right arm. “
31.On 8 November 2019 Dr Sheridan stated:
“…… Her main concern at the moment is pain, paraesthesia and numbness down her right arm in a C7 or 8 distribution, neck pain and headaches….”
32.Dr Sheridan noted that an MRI scan showed right sided C6 – 7 disc protrusion with nerve compression “entirely consistent with her neck and arm symptoms”.
33.Ms Pollone’s solicitors emailed Dr Sheridan’s rooms on 31 March 2022. Regrettably the solicitors neglected to lodge the content of the email, but in answer to a follow-up email dated 5 May 2022 an email was received on behalf of Dr Sheridan, which said:[4]
“I wish to advise that A/Prof Mark Sheridan does not do medico-legal reports.”
[4] ARD page 29.
Dr Wallace
34.Dr Lorent Wallace was the pain specialist to whom Ms Pallone was referred by Dr Abi-Hanna. She did not treat Ms Pallone until 21 May 2020, and noted complaints of “right sided neck pain, much greater than left, with right C8+/-C7 radicular pain also”.
35.This complaint was again noted in a report of 9 September 2020, but no attention was paid to the question of causation.
Dr Powell
36.Dr James Powell, orthopaedic surgeon, gave medico-legal advice to the respondent on
22 April 2021. Dr Powell took a history that Ms Pallone suffered a lumbosacral injury in the accident of 10 March 2018. As to Ms Pallone’s neck complaint, Dr Powell said:[5]“When [Ms Pallone] awoke from anaesthesia, she was aware of the feeling of numbness involving the right upper limb, extending from the lateral arm down to the ulnar side of the forearm and ulnar two digits.”
[5] Reply page 3.
37.Dr Powell later repeated that history, and added that Dr Sheridan had indicated that the symptoms were due to positioning on the operating table. He noted that Dr Sheridan had first mention those difficulties to Dr Abi-Hana on 16 September 2019, and that subsequent MRI imaging showed pathology at C6/7.
38.Dr Powell was asked to comment as to whether the cervical spine condition was sustained as an injury and/or consequential to the lumbar spine injury. Dr Powell acknowledged that “this is rather difficult to determine,” but advised:[6]
“Dr Sheridan indicated that the symptoms and examination findings were consistent with a C7 or C8 radicular origin arising from her neck. He does not, however, indicate the mechanism of the development of these symptoms. Ms Pallone indicated that
Dr Sheridan had said that this was from intra-operative positioning, but this was not reflected in his correspondence.Cervical spondylosis is a common condition throughout the community, increasing in frequency with advancing age. Clinical presentation is widely variable between individuals and across the time course of the disease process, generally become more severe with advancing age. Reasons for development of symptoms are widely variable with some being associated with a specific incident, but many having no mechanical explanation and coming on spontaneously.
At this point, the only association with Ms Pallone’s lumbar injury is that the cervical and right upper limb symptoms first developed in the post-operative period from an operation undertaken for her lumbar spine injury, but in the absence of a more specific explanation as to why her symptoms developed at that time, little else can be added at present.”
[6] Reply page 11.
Dr Brian Stephenson
39.On 13 March 2020, Ms Pallone was assessed by Dr Brian Stephenson at the request of her solicitors. Dr Stephenson noted the back injury, and that Ms Pallone came to surgical treatment with Dr Sheridan on 28 June 2019. Dr Stephenson noted the results of a cervical MRI scan of 16 October 2019. He said:[7]
“There is pain at neck extending over to the right upper extremity in the dorsum right forearm with tingling in the fourth and fifth fingers and headaches.
The neck pain she was aware of on the morning of recovery from the surgery. She thought it was probably there before but masked by the more severe back pain which was a predominant lesion.”
[7] ARD page 34.
40.Dr Stephenson set out the assumption upon which he was then working as to causation of Ms Pallone’s neck pain. He said:[8]
“You advise it appeared the Workers’ Compensation insurer accepts liability for her neck. In that regard, the insurer accepted liability for cortisone injections to the neck, which she has chosen not to proceed with.”
[8] ARD page 36.
41.As to causation, the following appeared at page 8 of the report:
“The relationship between the condition found on examination and the injuries sustained in the accident.
There is a direction relationship between the condition found on examination and the injuries sustained in the accident as regards the neck and the back, and the right upper and lower extremity.”
Addendum report 31 March 2022
42.Dr Stephenson supplied a further report dated 31 March 2020. He was asked to comment on Dr Sheridan’s reports. Dr Stephenson reviewed Dr Sheridan’s involvement, noting the cervical MRI of 8 November 2029. Dr Stephenson said:[9]
“The above material, namely the report of Associate Professor Sheridan, is helpful and complementary but does not, in any way, alter my opinion as expressed in my report of 13 March 2020 including my assessment of Whole Person Impairment.”
[9] ARD page 42.
Supplementary report 26 April 2022
43.Dr Stephenson issued a further report on 26 April 2022.[10] He noted the declinature regarding Ms Pallone’s neck condition, and the opinion of Dr Powell regarding
Ms Pallone’s back condition. With regard to the cervical spine, Dr Stephenson recorded the following:[11][10] ARD page 43.
[11] ARD page 47.
“1. In your report, you have taken a history that our client first became aware of neck pain on the morning of recovery post surgery undertaken on 28 June 2019.
Please explain what the likely positioning of our client’s neck would have been during surgery.
There are generally two alternative methods of surgical approach to the lumbar spine, say at the lumbosacral disc. One is using a padded frame which allows the patient to lie comfortably over the frame, reducing some of the lumbar lordosis and facilitating the hemilaminectomy approach to the lumbar spine. An alternative method is perhaps a little less frequent, where the operation is performed with the patient on her side and in this case will be on the left side with the right paralumbar spine available for posterolateral hemilaminectomy.
2. On the balance of probabilities, is our client’s neck pain consequential to her back injury and/or surgery undertaken on 28 June 2019? Please explain why/why not.
The reason is given above. I answer in the affirmative.
3. If you do not consider that our client’s cervical spine injury has arisen as a consequence of her back injury, do you consider that our client may have injured her cervical spine in the accident on 10 March 2018?
(a) If so, do you consider her employment with Woolworths to be the main contributing factor to the development of her cervical spinal or problems?
On the balance of probability that is more probable than not, in my opinion, the description of the injury is likely to be consistent with her neck being injured at the time of the accident on 10 March 2018. I noted in Page 2 of my report of 13 March 2022
Ms Pallone has a height of 5’4’, weighs 65 kg.”
44.Later in his report Dr Stephenson reproduced again the earlier questions he had already considered, this time with different answers:[12]
[12] ARD page 48.
“1. In your report, you have taken a history that our client first became aware of neck pain on the morning of recovery post surgery undertaken on 28 June 2019.
Please explain what the likely positioning of our client’s neck would have been during surgery.
The neck would have been somewhat extended as she was leaning over the Watson frame which is concave like the Harbour Bridge and can be made more concave by winding a handle on the side of the frame.
2. On the balance of probabilities, is our client’s neck pain consequential to her back injury and/or surgery undertaken on 28 June 2019? Please explain why/why not.
Yes, on the balance of probabilities; the neck pain which was felt on the morning of waking up after the surgery in hospital, it is likely that the neck would have been somewhat hyperextended causing musculoligamentous strain with the symptoms that persisted.
3. If you do not consider that our client’s cervical spine injury has arisen as a consequence of her back injury, do you consider that our client may have injured her cervical spine in the accident on 10 March 2018?
No. The cervical spine pain was felt on the morning of recovery from the back injury and therefore is likely to be related to positioning of the neck during the operative procedure.
(a). If so, do you consider her employment with Woolworths to be the main contributing factor to the development of her cervical spinal or problems?
Only as a consequential factor as I have mentioned related to the position of the neck during the operative procedure.”
45.Dr Stephenson also recorded:[13]
“6. At question 5 of his report (pages 11 and 12), Dr Powell expresses a view that our client’s “disease in the cervical spine is age and constitutionally related and is degenerative and of long-standing”.
(a). Do you agree or disagree?
Well, I do agree it terms of the conclusion that the radiological report, 22 October 2019, the radiology refers to multilevel degenerative spine changes, most marked at C5/6 and C6/7 but nevertheless that does not rule out an aggravation of degenerative change related to the cervical spine which I have taken a history that Ms Pallone’s first pain was neck pain on the morning of recovery post surgery undertaken on
28 June 2019. It was consequential and I would also respond in the affirmative that it is likely to have been due to the position of the neck throughout the surgery on the back and the most likely level of injury is at the C6/7 level on the right side as I have noted from the radiology report.I agree that the radiology has found those findings but I take the view that the degenerative change has been aggravated by the position of the neck in the operating theatre for the lumbar spine surgery.”
[13] ARD page 50.
Superseding report 2 May 2022
46.On 2 May 2022 Dr Stephenson issued a further report.[14] He acknowledged the following question:[15]
“You [Dr Stephenson’s instructing solicitor] state, The questions I have asked have been reproduced and answered twice (in different ways).
On page 5, Dr Stephenson answers my questions 1-3, and gives an opinion at question 3 that the neck was injured at the time of the original incident on 10 March 2018.
Dr Stephenson then answers questions 1-3 again on page 6; however, provides an opinion that our client’s neck injury is consequential to the back surgery.
You state, I may be reading it wrong, but I think Dr Stephenson may have meant to remove the answers on page 5? Could you please ask him to review and amend as appropriate?”
[14] ARD page 52.
[15] From ARD page 52.
47.Dr Stephenson answered by referencing the answers he gave the second time he considered the questions, which were given from page 6 of his report (at [45] above).
48.He referred to his earlier opinion that if analgesics were taken for her troublesome back after 10 March 2018 “then the degree of neck discomfort is likely to have been masked by that factor”.
49.He explained his opinion that there was probably also an injury to the neck on
10 March 2018:“…..but masked by the degree of severity of the lumbar spine and therefore she became more aware of it when she woke up the next morning from the anaesthetic after the surgery on the back. In addition, with the difficulty emptying rubbish into the large industrial bin then a musculoligamentous strain to the cervical spine with that event also, is likely. Therefore, in my opinion the neck condition is related to the employment activity with the employer, Woolworths.”
SUBMISSIONS
Mr Baker
50.Mr Baker said that the purpose of his submissions was to cast doubt on the versions given by Ms Pallone as to the onset of her neck condition. He submitted that the MRI scan and physiotherapy treatment did not occur for some time after the discectomy, which was the cause, Ms Pallone said in her first statement, of her neck symptoms.
51.Mr Baker submitted that whilst Ms Pallone claimed she had complained to the physiotherapist and to Dr Sheridan, there was no corroboration available for either claim.
Ms Pallone had been confident that the St George Hospital records would confirm her complaints of neck pain when she was recovering from her back surgery and particularly when the physiotherapist was helping her out of bed, but Ms Pallone had lodged the
St George Hospital records and they made no comment about any neck complaint. Similarly Mr Baker submitted whilst Ms Pallone deposed to a conversation about her neck with
Dr Sheridan, there had been no corroboration from Dr Sheridan himself.52.Mr Baker noted that Ms Pallone’s second statement was a “less than impressive” document and would not assist a trier of fact in assessing the case. He referred to the St George Hospital notes, which he said did not support her claims at all. The notes showed, Mr Baker said, that Ms Pallone was nauseated and had an IV. Mr Baker referred to the observations of the following day which involved nausea and incontinence. No other issues were noted, he submitted and the physiotherapist’s notes did not mention neck pain. Mr Baker noted the entry of “pain ++”.
53.Dr Sheridan was reported as visiting Ms Pallone, and there was still no record of any complaint of neck pain. Mr Baker submitted that the reference in the notes to a tingling in both arms was associated with the antiemetic medication. Mr Baker noted that the neurological signs were stable. I could not rely on what the applicant deposed to, Mr Baker said.
54.With regard to the clinical notes from the Harrington Park Medical Centre, Mr Baker said that in a blood test in August 2015 complaints of a vitamin deficiency, joint pains and a stiff back were noted. The GP notes also showed a complaint of chronic back pain for a few months in 2015. The applicant told a number of doctors that she had not had a prior back problem, Mr Baker said, which “flies in the face” of that 2015 entry.
55.The GP notes by Dr Abi-Hanna relating to the subject injury of 13 March 2018 Mr Baker acknowledged was consistent with Ms Pallone’s evidence. However there was no relevant mention of any neck complaints. She saw her GP on numerous occasions with intercurrent complaints of other issues, but no complaint was made regarding her neck, Mr Baker observed.
56.Mr Baker noted that at the first post-surgery appointment with Dr Abi-Hanna on 23 July 2019 Ms Pallone made no mention of her neck. It was clear that there was nothing wrong with her arms Mr Baker submitted in the light of Dr Abi-Hanna’s comment that she had to lever herself out of her chair because of her continued back pain. On 9 August 2019, Mr Baker said, again the consultation was concerned again with Ms Pallone’s back.
57.The third occasion Ms Pallone saw Dr Abi-Hanna was on 22 August 2019, some eight weeks post surgery, Mr Baker observed. Ms Pallone was back at work. On 5 September 2019,
Mr Baker said that the first complaint of neck pain was noted by Dr Abi-Hanna. This was two months and one week post-surgery. Mr Baker made some submissions about the lack of any further explanation given to Dr Abi-Hanna as to how the neck pain occurred. This was the first ever reference in the case to neck pain, Mr Baker said.58.Mr Baker then discussed the evidence from Dr Sheridan. At no point, Mr Baker asserted, did Ms Pallone mention her neck pain to Dr Sheridan whilst she was in hospital following her surgery on 28 June 2019. On 16 September 2019 Dr Sheridan reported that he saw
Ms Pallone on 11 September 2019 – almost three months after surgery, and it was then that he mentioned for the first time, her complaint of neck pain. By 8 November 2019 Dr Sheridan reported the main problem was the neck and right arm. The MRI of the cervical spine took place on 23 October 2019. Mr Baker submitted that was a year and seven months after the injury, and about four months after the surgery. Accordingly there was no evidence that the onset of Ms Pallone’s cervical condition was related to the surgical treatment, Mr Baker argued.59.Mr Baker referred to the first report of Dr Stephenson, and noted that Ms Pallone had been undergoing chiropractic treatment, massage therapy, physiotherapy and had been seeing a psychologist. None of these treaters had supplied reports, Mr Baker submitted, and I could infer therefore that their reports would not have assisted the applicant.
60.Mr Baker discussed Dr Stephenson’s report, and the history he recorded of her noticing neck pain following the surgery. He submitted that Ms Pallone’s ability to extend her neck to
30 degrees on examination was “quite remarkable” being certainly better than average. This was objected to by Mr Hickey as being a submission entirely without evidentiary support.61.Mr Baker quoted Dr Stephenson’s opinion regarding causation, which Mr Baker said was not made out.
62.So far as Dr Stephenson’s second report was concerned, Mr Baker said that it did not add much and particularly added nothing more regarding the neck condition. Mr Baker submitted that Dr Stephenson’s third report of 26 April 2022 contained what Mr Baker described as a “telling” comment when Dr Stephenson referred to Ms Pallone as “our client”. This gave a “flavour of the doctor’s thinking” Mr Baker said. It indicated that the doctor was being an advocate and therefore was giving a viewpoint that could hardly be called objective.
63.Dr Stephenson agreed with Dr Powell that the nature of the injury was the aggravation of cervical disc pathology, an opinion which Mr Baker said was embraced by the respondent and Dr Powell and which explained the upper limb weakness.
64.As to whether the neck condition was consequential as a result of Ms Pallone’s positioning during her lumbar surgery, Mr Baker submitted that Dr Stephenson was incorrect in assuming that a hemilaminectomy had been performed so “presumably” Ms Pallone had not been laid on her side, although she was on a padded table.
65.Mr Baker then referred to Dr Stephenson’s opinion that it was more likely that the injury was a result of the incident of 10 March 2018. Dr Stephenson then seemed to contradict himself, Mr Baker observed, and said that the neck was likely hyperextended on the Watson frame during the back surgery, which had aggravated her condition. Mr Baker submitted that
Ms Pallone’s arm extension on examination on the two times Dr Stephenson had examined her had been “excellent”. The argument was accordingly on one view counter-intuitive,
Mr Baker contended.66.Dr Stephenson did agree however, Mr Baker argued, with Dr Powell’s diagnosis of a pre-existing degenerative condition which was liable to cause these sort of symptoms.
Dr Stephenson’s rationale was that Ms Pallone’s awaking from the operation with neck and arm symptoms made it a consequence of the operation (and therefore the subject injury, I assume).67.The difficulty with that assumption, Mr Baker submitted, was that it was not supported by the evidence, and “unfortunately, Dr Stephenson has been misled”. Dr Stephenson’s acceptance of that history brought his opinion down, Mr Baker declared. Otherwise, he submitted, it accorded with that of Dr Powell, and dovetailed with the lack of complaint about her neck at the hospital or to her GP and Dr Sheridan after the surgery for some weeks.
68.The onset of the symptoms at that later time by both her GP and Dr Sheridan was consistent with an unrelated aggravation of her pre-existing condition, I understood Mr Baker to submit.
69.Mr Baker said that Dr Stephenson then was asked to explain his various views in his report of 22 May 2022. Dr Stephenson tried to say that he thought the cause of the neck condition was both the subject injury itself, and the consequence of her positioning during the lumbar surgery. That explained the pleadings that were before the Commission.
70.The alternative proposition was that advanced by Dr Powell, Mr Baker submitted.
Dr Stephenson also agreed, if one removed his mistaken assumptions. Mr Baker said support could also be found in the reports of the pain specialist Dr Laurent Wallace. Mr Baker conceded that Dr Wallace had taken no history of the onset of the neck pain. Her treatment was related to the back although she recorded complaints of pain from time to time.71.Dr Baker referred also to the reports of Dr Carney who was only concerned with the back.
72.Dr Powell’s summary was that the diagnosis was of the aggravation of the degenerative condition of Ms Pallone’s back, Mr Baker observed. Dr Powell noted Ms Pallone’s history that she had awaken from the back surgery with her neck pain but said that this was not borne out by the correspondence.
73.Mr Baker concluded by saying there was no contemporaneous material to support the proposition relied on by Dr Stephenson, and the probabilities, particularly in view of the delay in any complaint, favoured a conclusion that Ms Pallone’s cervical symptoms were unrelated.
Mr Hickey
74.There were two issues to resolve, Mr Hickie submitted, The first was the fact that
Dr Sheridan had not confirmed Ms Pallone’s neck complaint when she awoke from her surgery, and the second was the supplementary statement. Mr Hickey submitted that
Ms Pallone had given a clear account of her conversation with Dr Sheridan about her neck at the time she first saw him, and Dr Sheridan’s refusal to involve himself with medico-legal reports meant that she was unable to obtain corroboration from him.75.Mr Hickey said that Ms Pallone had conceded in her second statement that she had not made any complaint regarding her neck pain prior to the back surgery, but Mr Hickey rejected Mr Baker’s assertion that she had not mentioned that she was suffering from neck pain since the surgery of 28 June 2019, as Dr Stephenson referred to her complaint in his first report. Mr Hickey referred to the specificity of Ms Pallone’s evidence.
76.The respondent’s criticism relied on the apparent inconsistency between that evidence and the content of the St George Hospital notes, which did not confirm her account. However,
Mr Hickey submitted, authorities such as of Davis v Wagga Wagga City Council and Mason v Demasi, cautioned against reliance on health professional notes for making findings about causation. Bugat v Fox was also significant when considering submission that decisions about causation should be made on the basis of the content of clinical notes.77.Such decisions should also involve a consideration of other evidence, Mr Hickey submitted, and in this case Ms Pallone had been shown to be nauseous after the surgery. She had been unwell, and was on significant medication but nonetheless she noted the pins and needles in her arms and the onset of neck pain, about which she advised the nursing staff. A consideration of the content of the hospital notes revealed in the first few days that
Ms Pallone was nauseous and that she was complaining of pain. Mr Hickey said that notwithstanding Dr Sheridan’s opinion that Ms Pallone could be discharged from hospital, she was kept in hospital for another day and on that occasion complaints of tingling in the arms were recorded. It was significant that after Ms Pallone had been administered antiemetic medication, she continued to complain of tingling in the arms.78.Thus, Mr Hickey submitted, it could be seen that some of Ms Pallone’s complaints had made their way into the notes. The reality was that Ms Pallone had undergone a significant surgical procedure and within two days the hospital notes showed that she was complaining of tingling in the arms.
79.While the respondent said that it was significant that Dr Sheridan had seen and discharged the applicant, the fact remained that there was no note or report from Dr Sheridan himself. The notes showed that there had been a conversation between the applicant and
Dr Sheridan but there was no contemporaneous entry from Dr Sheridan as to the content of that conversation. Neither did Dr Sheridan subsequent reports make any mention of that conversation.
80.Mr Hickey noted that Ms Pallone had reported the neck symptoms and tingling in the upper extremities to her GP in September 2019. Those complaints were also made to Dr Sheridan when Ms Pallone attended his rooms during her recuperation, and Mr Hickey said, those complaints were made continuously.
81.Accordingly, when considering whether a consequential condition had been established,
Mr Hickey submitted that the evidence should be looked at in its totality. It also had to be viewed in context, which was that Ms Pallone had just come through significant spinal surgery. Although the treating practitioners were primarily concerned with the lumbar spine, nonetheless the references to the neck and the tingling were also made, and Ms Pallone was subsequently sent off for an MRI scan demonstrating pathology in the neck.82.Mr Hickey noted the criticism made of Dr Stephenson’s advice in his first report of
13 March 2020. However, Dr Stephenson had assumed that injury was not in dispute,
Mr Hickey said, and the fact that his opinion on causation was “not particularly detailed” was hardly surprising therefore. Mr Hickey observed in passing that the submissions made by
Baker regarding the 30° extension Dr Stephenson found on examination in March 2020 had no medical evidence to support them, and that if Mr Baker had wished to make such a submission he should have provided medical evidence accordingly.83.When Dr Stephenson became aware that causation was indeed at issue, through the report of Dr Powell, he confirmed that the cause of Ms Pallone’s neck symptoms was, in the final analysis, the position she had been placed in for the purposes of the lumbar spine surgery. It was unsurprising that Dr Stephenson did not change his opinion having seen Dr Powell’s report, Mr Hickey said.
84.Dr Powell, whilst given the specific history of Ms Pallone’s neck condition having been caused by her positioning during the discectomy, simply disregarded it entirely, Mr Hickey submitted. Whilst Dr Stephenson considered that causal nexus, Dr Powell simply gave “radio silence” when asked to advise.
85.Mr Hickey commented that the reports of Dr Laurent Wallace were irrelevant to this issue. She was a treating pain specialist and was not concerned with causation.
Mr Baker in reply
86.Mr Baker rejected Mr Hickey’s submission that the clinical notes in the hospital were connected to cervical symptoms. It was more likely, he argued, that they reflected her being so unwell, as she stated in her second statement, with nausea and the consequences of the anaesthesia. The symptoms relied on by the applicant concerned only tingling and there was no complaint regarding the neck recorded.
87.These facts affected the reliability of Dr Stephenson’s opinion, Mr Baker submitted, as if he had been given access to the clinical records both of St George Hospital and the GP notes, Dr Stephenson may well have not found that the first symptoms experienced by Ms Pallone were when she awakened from the back surgery. Mr Baker also emphasised that the reports and notes of the health professionals referred to by Dr Stephenson were not before him, or the Commission.
DISCUSSION
Did Ms Pallone suffer an injury to her cervical spine?
Medico-legal
88.Much was made of an apparent disparity in Dr Stephenson’s opinions, but I did not find his exposition of the causal factors at play in this case to be inconsistent. Dr Stephenson was asked to give a medico-legal opinion, and was specifically asked on many occasions for his advice as to whether Ms Pallone had suffered a consequential condition in her neck following her spinal surgery, or whether she had suffered an injury in the event of 10 March 2018.
89."Injury” has a statutory definition, as is well known. Section 4 of the 1987 Act relevantly provides:
“‘injury’ -
(a)means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means—(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
90.Section 9A of the 1987 Act provides relevantly:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.”
91.It can be seen that there is no “injury” as defined unless employment has been either a substantial contributing factor, or the main contributing factor – in Ms Pallone’s case the relevant condition being a main contributing factor, as the degenerative state of her neck would constitute a disease condition, as agreed by both Dr Stephenson and Dr Powell.
92.Dr Stephenson was directly asked as to whether employment was the main contributing factor, to which he replied that employment was only a consequential factor. Whilst
Dr Stephenson acknowledged Ms Pallone’s history that she may have hurt her neck on
10 March 2018, he stated that the cervical pain was felt on the morning of her recovery from the back surgery, and that any pain from the neck prior to that event had been masked. It was when she awoke that she became more aware of it. He conceded that the actions described in emptying rubbish into the industrial bin were likely to have caused a musculo-ligamentous strain and in that context said the neck condition was “related” to her employment activity. Such an observation was in keeping with the thorough and careful analysis Dr Stephenson brought to his task, notwithstanding that he answered the same set of questions twice in this complex and detailed case.93.Thus, when asked about that apparent contradiction in his opinion, Dr Stephenson explained that his opinion was that Ms Pallone’s neck condition was consequential. The highest his opinion regarding injury reached was that whilst the subject injury to the back may have been “related,” or that Ms Pallone’s “description of the injury [was] likely to be consistent” with a neck injury, he did not accept that there had in fact been an injury as such. This is an acceptable interpretation of the facts, as inherent in his opinion is an acknowledgement that Ms Pallone’s description was a reconstruction following the onset of cervical symptoms when she awoke from the lumbar discectomy. As Mr Baker took a great deal of trouble to explain, there had been no suggestion before then that Ms Pallone had reported any cervical symptoms – and indeed I did not read Ms Pallone’s evidence as suggesting that she had done so. She simply recalled to Dr Stephenson that when she became aware of her neck pain following the surgery, she “thought” it was “probably there before”.
Ms Pallone’s statement of 6 December 2022
94.In that regard, I have some difficulty in accepting Ms Pallone’s statement that she “[remembered] experiencing some stiffness and slight pain in my neck” immediately following the event of 10 March 2018, as was recorded in her supplementary statement of
6 December 2022. As is unremarkable in legal practice, a deponent is usually assisted in the preparation of a statement by his/her legal advisors, and I assume that Ms Pallone was similarly assisted in the preparation of her supplementary statement. I doubt whether she advised her solicitor that she had read and reviewed Dr Stephenson’s “report” (he wrote four), and it is probable that her understanding that the insurer was critical of her complaints came from properly given advice from her solicitors.95.It follows that Ms Pallone’s statement that she remembered experiencing some stiffness and “slight” pain in her neck immediately following the incident of 10 March must be viewed with some caution. In the first place, Ms Pallone was recollecting her memory of the events of four and a half years earlier, for which there was no contemporaneous record to assist her. Whilst Dr Stephenson gave some support in his report of 13 March 2020, some two years later, it simply recorded that Ms Pallone told him at that consultation that she “thought” the pain was “probably there before but masked”. I do not read that as anything more than speculation on her part at the time, and it is no support for her statement of 6 December 2022 that she actually remembered experiencing the symptoms she spoke of. I hasten to add that I do not think that Ms Pallone was deliberately attempting to mislead, but in view of the period of time since the event, and in view of the fact that she had been discussing her case in order for her statement to be provided, it may be that she has quite innocently reconstructed her memory of those events. Even so, her statement that her symptoms were “not substantial” and not “bad enough …to seek any treatment” do not in any event without more satisfy her onus to establish that employment was either the main or a substantial contributing factor to her now serious cervical condition.
96.I would accept Dr Stephenson’s opinion that it was the positioning during the discectomy on 28 June 2019 that was the cause of her cervical symptoms, but note that the respondent resisted this conclusion on the ground that there was no support for it, and I now turn to address those arguments.
Did Ms Pallone suffer a consequential condition to her cervical spine resulting from the injury to her lumbar spine?
Relevant authority
97.In that regard Mr Hickey referred to a number of decisions regarding the use of clinical notes in making decisions regarding causation. In view of Mr Baker’s careful and detailed submissions it is preferable to refer to the authorities. They were conveniently encapsulated by President Judge Keating in Qannadian v Bartter Enterprises.[16] His Honour first referred to the appellant’s submissions at [24]. He said:
[16] [2014] NSWWCCPD 50.
“The appellant submits that it was unreasonable to draw such an inference, ‘in circumstances where there was no evidence from the maker of the clinical notes as to the circumstances of the consultations’. In support of this submission the appellant quotes the following passage from Mason v Demasi[2009] NSWCA 227 (Mason) at [2]:
‘... such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)the record did not identify any questions which may have elucidated replies;
(d)the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
98.From [36], his Honour held:
“Mason is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force[2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:
‘It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36])’.
37. The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence.”
99.It can thus be seen that in some circumstances a finding as to causation can be made on the basis of clinical notes, but that caution should be used in doing so. As discussed with
Mr Baker during this case, it is often suggested that the clinical notes are capable of proving a negative – that is, that there was no mention of a particular complaint in the notes concerned and that therefore an inference can be drawn that the claimant’s version of events cannot be accepted. In the present case Mr Baker relied on the absence of such complaints in both the St George Hospital and the Harrington Park Medical Centre clinical notes.
Analysis
100.However, the caution to be exercised concerns a consideration of the totality of the evidence, including the applicant’s evidence. One of the features of Ms Pallone’s statement was the detail she provided. She described her experiences with some particularity and confidence, giving details that were precise and of a nature that would be difficult to invent. She was confident that her account would be supported in the St George Hospital notes, and although the respondent submitted that such support was not evident, I do not accept that to be the case. Ms Pallone averred in her statement of 7 September 2022 that:
(a) immediately following the surgery she began to experience pain in her neck;
(b) the pain extended down her arms, primarily her right arm, in the form of numbness and tingling;
(c) she consulted Dr Sheridan about her neck pain, and
(d) Dr Sheridan advised:
(i)her complaint was not unusual;
(ii)she was not lying flat during surgery, and
(iii)her neck was craned in an awkward position during surgery.
101.In her 6 December 2022 statement Ms Pallone added that:
(a) she experienced neck pain immediately after the surgery, with numbness down her right arm;
(b) she complained about it to her physiotherapist as she was being helped out of bed;
(c) although she could not recall the physiotherapist’s name, she thought the records might help;
(d) she called for help whilst in the hospital as she was extremely distressed by the numbness in her arm;
(e) the hospital staff came running and gave an injection into her IV;
(f) the staff said they would advise Dr Sheridan of her neck problems, and
(g) she was extremely unwell as a result of her reaction to the anaesthetic and resultant nausea.
102.The St George Hospital notes confirmed that from 28 June 2019 to 1 July 2019 the staff were dealing with nausea and pain. It was clear that Ms Pallone was indeed extremely unwell following her procedure. The notes also established that Dr Sheridan had seen Ms Pallone at 6pm on 29 June 2019 – the day after the surgery. The notes established that she was, unsurprisingly, given an IV, and that her physiotherapist did indeed help her out of bed at
12pm on 29 June, as I assume she was unable to do so unaided in order to mobilise. Whether the staff “came running” or not would not be a matter for entry in the notes, but they did show two further matters of significance.103.Firstly Ms Pallone did complain of bilateral tingling in the arms on 30 June at midnight, and secondly it was not until the tingling was noted that the notes recorded observations regarding her neurological status during the remainder of her stay. These matters raise an inference that the nursing staff regarded Ms Pallone’s complaints about her arms as both genuine and potentially serious.
104.These matters coalesce around the central issue raised by the respondent – that
Dr Sheridan did not corroborate her account of the conversation, which was shown by the notes to have occurred at 6pm on 29 June 2019. However what Ms Pallone alleges she was told by Dr Sheridan has not been challenged, (although Mr Baker attempted to give some evidence from the bar table as to how he thought Dr Sheridan would have positioned
Ms Pallone. I put that to one side, and accept the evidence of Dr Stephenson in that regard as to the use of the Watson frame).105.Ms Pallone could not have known that her complaint of neck pain was not unusual because of her positioning during the surgery. It is highly unlikely that she would have known that she was not lying flat during the surgery, and she could not have known that her neck was craned in an awkward position during surgery. She said she was told these things by
Dr Sheridan and it is difficult to see how else she would have come by this detail.106.It is also relevant that although Dr Sheridan authorised her discharge from hospital on
30 June, the hospital staff declined to do so on account of both her nausea and, significantly, her pain. The site of the pain was never identified in the notes, but the notes confirm a continuing involvement of pain in the decision not to discharge her in accordance with
Dr Sheridan’s direction. The presence of that pain again militates against a finding that the content of these notes did not support the applicant’s evidence. Ms Pallone said she was suffering pain from her back and her neck, and the notes do not contradict that assertion.107.Then there is the issue of Dr Sheridan’s refusal to involve himself in medico-legal reports. It is a reasonable assumption that the request from Ms Pallone’s solicitors asked for a report on that conversation. Whilst orthopaedic surgeons are very important members of the medical profession, such an attitude might well have caused an injustice to be perpetrated in Ms Pallone’s case and it displays a nonchalance that is perhaps misplaced, with respect.
108.In any event, in the present case Dr Sheridan’s attitude is a matter I can take into account as a reasonable explanation as to why there was no corroboration regarding that conversation. For the reasons I have outlined the absence of any report from Dr Sheridan has not been detrimental to Ms Pallone’s case. I am satisfied that she did indeed experience her neck and arm symptoms as she described. The absence of any record about her tingling arms until midnight on 30 June 2019 may well be because the nursing staff got the same response from Dr Sheridan as Ms Pallone did. I accept that Ms Pallone was told that the nursing staff would advise Dr Sheridan. In any event I accept that Ms Pallone notified Dr Sheridan of her neck and arm complaints at 6pm on 29 June 2019.
Lack of contemporaneity
109.The respondent sought to cast further doubt on Ms Pallone’s case because it contended that the temporal gap between the alleged onset of her neck symptoms in hospital and her complaints to her GP and Dr Sheridan raised a doubt as to whether her cervical symptoms had been caused by the surgery, but had occurred as an unrelated aggravation some time later. That submission falls away in the light of my findings above, but an examination of the evidence does not in any event support that proposition.
110.Ms Pallone saw Dr Sheridan post-surgery on 11 September 2019, when she complained of her cervical symptoms. I accept Ms Pallone’s evidence that she had been unable to get a post operation appointment with Dr Sheridan for some time, and I infer that
11 September 2019 was the first available opportunity. I do not in any event regard the passing of about 12 weeks as being such a temporal gap as would of itself raise questions as to the veracity of Ms Pallone’s claim, even had she not been able to rely on the matters I have above found. I accept her evidence that she attempted to medicate her cervical symptoms in conjunction with the “heavy painkillers” she was taking in any event for her post-back surgery symptoms, but that her cervical symptoms persisted notwithstanding until she sought medical help because she was not managing.111.Similarly, of itself the temporal gap between the onset of the cervical symptoms and
Ms Pallone’s first complaint to Dr Abi-Hanna on 5 September 2019 I do not regard of itself as being outside a reasonable chronological range, and therefore contemporaneous in any event. The matters I have referred to above outweigh any negative inference the respondent would have me find. She waited about 10 weeks before seeking medical help, during which time, as I have said, she was attempting to manage on her painkillers prescribed for her back. It is pertinent to observe also that Ms Pallone has been shown to be a hard-working person, who has continued at Woolworths doing such work as she has been able throughout the history of her back and neck injuries. She is entitled to have her positive approach to her misfortune also taken into account.
Finding and order
112.Accordingly, I am satisfied that Ms Pallone suffered a consequential condition in her cervical spine as a result of the way she was positioned during her back surgery on 28 June 2019.
113.I remit this matter to the President for referral to a Medical Assessor on the following bases:
Date of injury: 10 March 2018.
Matters for assessment: lumbar spine; cervical spine, and TEMSKI/scarring.
Evidence:Application to Resolve a Dispute and attached documents;
Application to Admit Late Documents dated 30 January 2023 from the applicant, and Reply and attached documents.
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