Rapisardi v Cotton on Group Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Rapisardi v Cotton On Group Services Pty Ltd [2021] NSWPIC 314
APPLICANT:	Elyse Rapisardi
RESPONDENT:	Cotton On Group Services Pty Ltd
MEMBER:	Jill Toohey
DATE OF DECISION:	31 August 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; weekly payments; medical expenses; accepted injuries to lumbar spine and left ankle in fall from the ladder at work; whether applicant injured cervical spine as well; consideration of clinical notes; finding that applicant injured cervical spine in the fall; matter referred to Medical Assessor for assessment of whole person impairment of lumbar spine, left ankle, cervical spine; Held - finding that applicant had partial incapacity during the period claimed; respondent to pay the applicant weekly compensation as claimed; respondent pay the applicant’s reasonably necessary medical expenses; liberty to apply with respect to the calculation of weekly payments and medical expenses.
DETERMINATIONS MADE:	1. The applicant sustained injury to her lumbar spine, left ankle and cervical spine arising out of or in the course of her employment with the respondent on 20 August 2018. 2. The applicant’s employment was a substantial contributing factor to the injuries to her lower back, left ankle and cervical spine. 3. The respondent to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act1987 for the period 24 September 2019 to 30 December 2019 equivalent to $739.20 per week. 4. The matter is remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment of the whole person impairment of the applicant’s lumbar spine, left ankle and cervical spine as a result of injury on 20 August 2018. 5. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Application to Admit Late Documents and attachments. 6. The respondent to pay the applicant’s reasonably necessary medical expenses pursuant to section 60 of the Workers Compensation Act 1987. 7. Parties have liberty to apply with respect to the calculation of the weekly payments and medical expenses.

STATEMENT OF REASONS

BACKGROUND

On 20 August 2018, Ms Elyse Rapisardi (the applicant) was working as a full-time sales assistant for Cotton On Group Services Pty Ltd (the respondent) when she fell approximately two metres from a ladder while trying to remove a heavy sign.
Ms Rapisardi claims she suffered injuries to her lumbar spine, left ankle and cervical spine as a result of the fall.

By an Application to Resolve a Dispute (ARD) lodged with the Commission on 13 May 2021, Ms Rapisardi claims lump sum compensation pursuant to section 66 of the Workers Compensation Act1987 (the 1987 Act), weekly payments for the period 24 September 2019 to 30 December 2019, and past medical expenses of $1,019.50.
The respondent accepts liability for injuries to Ms Rapisardi’s lumbar spine and left ankle but disputes liability for injury to her cervical spine.

Dr James Bodel assessed Ms Rapisardi’s whole person impairment as a result of injuries to her lumbar spine, left ankle and cervical spine injury as 15 per cent, of which he assigned 5% to her cervical spine. Dr Graeme Doig assessed whole person impairment of 13%, of which he assigned 5% to her cervical spine. Initially, both agreed that Ms Rapisardi had suffered injuries to her lumbar spine, left ankle and cervical spine as a result of the fall. Dr Doig subsequently revised his opinion and said the impairment in Ms Rapisardi’s cervical spine was unrelated to the workplace injury.
Dr James Bodel and Dr Graeme Doig initially assessed Ms Rapisardi’s whole person impairment as a result of injuries to her lumbar spine, left ankle and cervical spine injury as 15 per cent and 13 per cent respectively, of which both assigned 5 per cent to the cervical spine. Dr Doig subsequently revised his opinion and said the impairment of Ms Rapisardi’s cervical spine was unrelated to the workplace injury
Parties agree that, if Ms Rapisardi’s claim in relation to injury to the cervical spine fails on the question of injury, the lump sum compensation claim must fail.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a)    whether Ms Rapisardi suffered injury to her cervical spine in the fall on 20 August 2018;
(b)    whether, as a result of her injuries, she has or has had partial or total incapacity for employment;
(c)    whether she is entitled to payment of reasonably necessary medical expenses.

PROCEDURE BEFORE THE COMMISSION

Parties attended a hearing before the Commission on 5 July 2021. The hearing was conducted by telephone. Mr James McEnaney of counsel appeared for Ms Rapisardi, instructed by Ms Megg Ross. Mr Paul Stockley of council appeared for the respondent, instructed by Mr Stephen Lee.
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 and attached documents;
(b) Reply and attached documents, and

(c) Application to Admit Late Documents (AALD) lodged by the respondent on
29 July 2021 and attached documents.

Oral Evidence

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

THE EVIDENCE

Ms Rapisardi’s evidence

Ms Rapisardi provided a written statement dated 11 May 2021[1]. She states she was born on 17 August 1987. She did not have any significant medical conditions or injuries affecting her ability to carry out her duties prior to the fall on 20 August 2018. In particular, she does not recall ever experiencing pain or restriction in her lower back, neck or left ankle.
[1] ARD page 1.
Ms Rapisardi’s employment with the respondent involved the general duties of a retail sales assistant including restocking shelves and serving customers.
On 20 August 2018, Ms Rapisardi’s manager asked her to move a “visual merchandising sign”, a task Ms Rapisardi says would usually be done by a “visual merchandiser”. The sign was out of reach and she had to carry “a huge industrial ladder” from the back room to the sign.
Ms Rapisardi states she is “only 4”11”. She had to stand on the last step of the ladder to reach the sign. Her manager wanted her to move it from one point on the shelf to the other side. The sign was a plank of wood wrapped in perspex and weighed approximately 20 to 30 kilograms. She was unable to get a good grip on it. As she shifted her body, the weight of the sign caused her to lose her balance and she fell about two metres to the floor below.
Ms Rapisardi states that she “landed awkwardly on my left foot and ankle, followed by the rest of my body as I crashed to the floor and jarred my lower back and neck in the process”. Within minutes she felt “severe, shooting pain” in her neck, lower back, left ankle and foot. She carried on working until, around 10 or 20 minutes later, her manager, who could see she was in pain, told her to leave work and get a medical clearance before returning.
On the same day, Ms Rapisardi saw her general practitioner, Dr Selvavathy Anandakumar. She says she told the doctor about the fall and that she felt severe pain in her lower back, neck and left foot. Dr Anandakumar sent her for x-rays of her lower back, left knee, left ankle and foot.
On 22 August 2018, Ms Rapisardi saw Dr Anandakumar because of “continuing pain and restrictions”. Dr Anandakumar certified her unfit for work. Ms Rapisardi states:
“In hindsight, I think she neglected to mention my neck pain in my Certificate of Capacity as, although the pain in my lower back and neck were entirely connected, the focus would have been more on my lower back. I am certain that I would have told Dr Dr [sic] Anandakumar about the pain I suffered in my neck as the onset of this pain was simultaneous to the pain in my lower back.
Dr Anandakumar recommended I apply an ice pack to my ankle and take analgesic pain medication to manage my neck and lower back symptoms. I was also referred for physiotherapy treatment to assist with my recovery.”

About a week after this appointment, Ms Rapisardi commenced physiotherapy with Catherine Reese from Momentum Physiotherapy. She says Ms Reese provided various forms of treatment and “actively treated the pain in both my neck and lower back around once a week”. However, she states, she often left feeling as though the pain in her lower back and neck had been aggravated.
Ms Rapisardi states that, despite treatment, she continued to suffer from constant pain and stiffness in her lower back and neck, particularly her lower back. She reported this to Dr Anandakumar who referred her for a CT scan of her lower back.
Around September 2018, Ms Rapisardi return to work on restricted duties. When performing duties sitting down, she had to take breaks every 10 to 15 minutes as the pain in her lower back and neck “quickly became excruciating due to the repetitiveness of the task”.
Around this time, Ms Rapisardi took pain medication to manage her symptoms and had regular physiotherapy, hydrotherapy and chiropractic treatment, none of which helped reduce the pain and restrictions in her lower back and neck. She became concerned about the onset of numbness in her feet and, on 2 October 2018, she had an MRI of her lower back which she understands identified an annular tear and disc protrusion.
Ms Rapisardi states that she was referred to neurosurgeon, Dr Randolf Gray, shortly after the MRI but “ultimately” she did not consult with him. (Dr Gray’s report, referred to below, indicates that he saw her on 25 October 2018).
On 23 May 2019, Ms Rapisardi had a bone mineral density scan on referral from her rehabilitation provider.
Around mid-2019, Ms Rapisardi moved suburbs and started seeing doctors at Norwest General Practice. She states she also wished to “start fresh with a doctor who called me by my name and provided greater attention to the treatment of my work related injuries.”
On 18 June 2019, Ms Rapisardi had a CT scan of her lower back with nuclear medicine bone scan fusion to investigate the cause of the ongoing pain in her lower back. Around July 2019, Dr Tan referred her to Dr Corey Cunningham, exercise physiologist, for treatment of her lower back and neck pain. She was unable to get approval from the insurer to see Dr Cunningham, so did not see him. (Dr Cunningham’s report, referred to below, indicates he saw her on or around 27 September 2019).
Ms Rapisardi states that, during the remainder of 2019, she was unable to undergo physiotherapy because she was pregnant. She continued to suffer severe pain in her lower back which radiated up into her neck, and she frequently felt a tingling or numbness sensation in her feet, and pain and stiffness in her left ankle.
After giving birth in March 2020, Ms Rapisardi states she continued to manage the pain and restricted movement in her lower back, neck and left ankle with pain medication. She was unable to recommence physiotherapy or chiropractic treatment due to the outbreak of Covid-19.

Injury claim form

Ms Rapisardi completed a Worker’s Injury Claim Form on 21 August 2018.[2] She described the injury and affected parts of her body as “left side of body – foot, ankle, whole lower back incl spine”. In response to a question whether there were any issues that might delay or prevent her from returning to work, she wrote “Back & leg problems/complications”.

Medical evidence

[2] Reply page 1.

Evidence from Ms Rapisardi’s treating doctors and independent assessors is set out below. As there is no dispute as to the injury to the lumbar spine and left ankle, I have not included reports relating to those injuries except where they have some bearing on the claim in relation to the cervical spine.

Carlingford Court Medical Centre records

Records of Carlingford Court Medical Centre date from 2 November 2009 to 29 October 2018.
On 20 August 2018, the day of the fall, Dr Anandakumar recorded “fall from ladder at work 10.30am” and imaging requests for the left foot, left ankle, lumbo-sacral spine and left knee. She issued a medical certificate addressed “To whom it may concern” certifying that Ms Rapisardi was suffering from “a medical condition” and would be unfit for work from 20 August 2018 to 22 August 2018.[3] Given that she had noted the fall was at work, it is not clear why Dr Anandakumar issued a general medical certificate rather than a Certificate of Capacity.
[3] ARD page 130.
On 23 August 2018, Dr Anandakumar noted “pain L hip” and “SLRT L side painful”, and that she had given Ms Rapisardi the results of the x-rays of her lumbosacral spine, ankle/left foot and knee. She noted a further request for x-rays of the left hip and pelvis. She noted that she had written a medical certificate[4]. The certificate was in the same terms as that issued on 20 August 2018 and stated Ms Rapisardi was unfit from 23 August 2018 to 26 August 2018.[5]
[4] ARD page 102.
[5] ARD page 131.
On 24 August 2018, Dr Anandakumar noted that she had given Ms Rapisardi the results of the x-rays of the pelvis and left hip, and provided a Certificate of Capacity[6]. The Certificate gave the date of injury as 20 August 2018 and the diagnosis as “Work-realted [sic] injury”.[7]
[6] ARD page 132.
[7] ARD page 132.
On 27 August 2018, Dr Steve Lok noted “pain on lower back after 2 wks”. He issued a Certificate of Capacity describing the diagnosis as “Work-realted injury” and noting referrals for “x-rays, physio & chiro”.[8]
[8] ARD page 135.
On 6 September 2018, Dr Anandakumar’s notes show “a letter from another GP”, that
[9] ARD page 103.
Ms Rapisardi was “not willing to go to Ed and wait”, that she was taking Tramal at night with “some relief of pain”, and that a CT scan of the lumbar spine in relation to the fall on 20 August 2018 had been requested.[9]
On 6 September 2018, Dr Lok issued a Certificate of Capacity for a “Work-realted injury” (incorrectly stating the date of injury as 24 August 2018, while noting
[10] ARD page 138.
Ms Rapisardi was first seen at the practice in relation to the injury on 20 August 2018)[10].
On 11 September 2018, Catherine Reese, physiotherapist, reported to
Dr Anandakumar[11] that she had seen Ms Rapisardi for five sessions. She had been intermittently managing her pain and seeing small improvements. Ms Reese wrote:
“[She] has been reporting “neck pain in association with the fall, on review of her neck [Range of movement] we found increased pain 7/10 with neck LF and rot R&L, with restriction in all directions. Can you please review her suitability for an hour treatment session to allow us to treat both her lower back and neck region.”
[11] ARD page 168.
On 14 September 2018, Dr Anandakumar noted “[symptoms] improving w physio”.[12]
[12] ARD page 103.
On 24 September 2018, Dr Lok’s notes record “some pain is spine last week doing 3 hrs a days [sic]” and “some numbness in both feet, 3 wks”. He issued a Certificate of Capacity (again, incorrectly stating the date of injury as 24 August 2018). He noted a diagnosis of “Work realted injury” and referrals for x-rays, physio and chiro, and CT lumbar spine.[13]
[13] ARD page 171.
Dr Anandakumar’s notes for 28 September 2018 show “Ph call from Wc” and “Need diagnosis”[14]. This appears to refer to a call from the insurer.
[14] ARD page 103.

Dr Anandakumar’s notes for 4 October 2018 record a referral to Dr Randolph Gray but nothing as to diagnosis or the injury itself[15]. She issued a Certificate of Capacity certifying Ms Rapisardi unfit to 5 October 2018 and describing the diagnosis as:
“Upper & lower back pain, neck pain, pain & numbness feet/toes, numbness lower back”[16]
[15] ARD page 104.
[16] ARD page 144.
In a referral to Dr Gray on 4 October 2018, Dr Anandakumar referred to Ms Rapisardi’s “Lower & upper back pain and numbness feet post fall from ladder on 20/8/18”.[17] For reasons which are not clear, the referral did not refer to neck pain.
[17] ARD page 147.
On 8 October 2018, Dr Anandakumar noted that Ms Rapisardi and her mother had met with her supervisor who “advised her to have time off until she see the spine specialist or her symptoms improves [sic]”. She noted Ms Rapisardi had an appointment with
[18] ARD page 148.
Dr Gray on 25 October 2018. She issued a Certificate of Capacity describing the diagnosis of injury in the same terms, including neck pain, as the certificate on 4 October 2018 and describing factors affecting recovery as “lower & upper back pain, neck pain”.[18]
On 29 October 2018, Dr Sandya Wanigaratne noted the fall on 20 August 2018, an MRI, that Ms Rapisardi had seen a spine specialist, “pain back 10/10 severity” and leg pain, tingling and numbness affecting sleep[19]. She issued a Certificate of Capacity in the same terms to the diagnosis and factors affecting recovery as those issued by
[19] ARD page 104.
[20] ARD page 151.
Dr Anandakumar on 4 and 8 October 2018.[20]

Dr Gray’s report

Dr Randolf Gray, spinal surgeon, reported to Dr Anandasivan [sic] on 25 October 2018[21] in response to a referral for assessment of Ms Rapisardi’s back symptoms. He noted her back pain was “at risk of becoming a chronic pain syndrome”.
[21] ARD page 24.
Dr Gray noted that Ms Rapisardi “fell 2.5 m off the ladder on her back”. Since then, she had “symptoms distributed along her whole back, left upper limb and lower limbs and feet”. She had widespread numbness in her thoracic and lumbar region and “quite widespread pain arising from her cervical spine, left upper limb, down her left lower limb and neck”. Most of the pain was in her lower back.
Dr Gray referred to the MRI of Ms Rapisardi’s lumbar spine on 24 September 2018 which showed “a very minor annular” tear of the L5/S1 disc centrally. He said, essentially, the MRI scan findings did not corroborate with her widespread clinical presentation and symptoms, and he suspected some of the neurogenic symptoms in her legs were inflammatory in origin.

Norwest General Practice records

Records for Norwest General Practice date from 5 September 2018 to 13 May 2021.[22]
[22] AALD page 4.
Although Ms Rapisardi states that she moved suburbs and changed medical practices around mid-2019, the records show she first attended the Norwest practice on 5 September 2018. There was an overlap of approximately two months when she saw doctors at both.

On 5 September 2018, Dr Ashok Doraiswamy recorded “New patient”, noting that
[23] Reply page 32.
Ms Rapisardi had been sent from the physiotherapist for review. She reported landing on her side, causing back pain in the fall at work and “over the last two days she has had worsening back pain”. Given her report of “bladder incontinence and bowel disturbance”, Dr Doraiswamy noted she needed to go to hospital for review. She wrote a referral to Westmead Hospital, noting the fall at work onto Ms Rapisardi’s left ankle, since when she had been having ongoing back pain “worsening in the last two days” and bladder incontinence and bowel changes.[23]
On 26 November 2018, Dr Robert Marsham noted the fall at work, lower back pain, that CT and MRI review showed mild disc protrusion at L4 5 S1, and that Ms Rapisardi had been “referred to ED but didn’t go”. He noted the reason for visit as “Workers Compensation paperwork back injury”. On examination she had pain over paravertebral muscles and glutes, and limited range of movement in the lower back. He noted symptoms of depression and anxiety, and a plan comprising a range of treatment including psychologist, exercise physiologist and hydrotherapy.[24]
[24] AALD page 4.

On 17 December 2018, Dr Marsham noted “Yellow flags++” and “slow recovery, generalised pain”. He noted extreme depression and anxiety, and that Ms Rapisardi had “Bang to R knee Friday … then had pain shooting to R throcic [sic] spine 10/10 cause”.[25]
[25] AALD page 6.
There was a further consultation on 8 January 2019 for epigastric discomfort and “Back injury”. He referred Ms Rapisardi to Active Back Care Spine and Sports Injury “for opinion and management of back injury sustained at work”.[26]
[26] Reply page 38.

Notes for consultations in January and February 2019 refer to gastroenteritis, a plan to upgrade to pre-injury hours over the next three to four months, and ongoing pain.
On 5 February 2019, Dr Marsham noted that Ms Rapisardi reported her pain was severe at the moment, that she wanted to get back to normal duties in four to six months and the plan was to aim for light duties 38 hours a week by four months.[27]
[27] AALD page 6.
On 11 February 2019, Dr Marsham noted “Today whole back hurting” and “Pain worst in back and shoulders”. On 22 February 2019, he noted that Ms Rapisardi had been doing three hours, four days a week and was “mentally ready to get to work”. The range of movement in her spine was “ok but limited by pain”.[28]
[28] AALD page 10.
Notes of consultations in March and early April were in similar terms.
On 8 April 2019, Dr Marsham recorded that Ms Rapisardi was getting “very frustrated with slow return” and noted it was not helped by her refusal to take pain relief, refusing physiotherapy and hydrotherapy, and not attending a dietician or psychology. He noted “reports pain in trapezius muscles and throught [sic] back. Unchanged”.[29]
[29] AALD page 13.
On 7 May 2019, Dr Lena Thomas noted a request for bone densitometry and “ongoing backpain post fall last year”. On 8 May 2019 she printed a request for a whole body scan, noting “(cervical, thoracic and lumbar spine – known disc protrusion with ongoing pain)”.[30]
[30] AALD page 14.
On 13 May 2019, Dr Marsham noted Dr Silva’s involvement. He noted “Pain is worst in neck and shoulder blades.” He noted “vague cluster of neuro symptoms. Persistently in shoulders – unlikely related to lower back pain of the fall 8 months ago”.
Ms Rapisardi attended appointments in May and June for unrelated conditions. On 6 June 2019, Dr Marsham noted “pain severe in back up and down head, shoulders, all of R side of body. Unlikely related to mild lumbar injury in August last year”. He noted the diagnosis was now one of chronic pain.
On 2 July 2019, Ms Rapisardi attended on Dr Marsham in relation to pregnancy.
On 22 July 2019, Ms Rapisardi attended on Dr Tan who noted the work injury and “pain in lower back and can radiate on occasion to neck and feet”. On 19 August 2019,
Dr Tan noted “continued lower back pain” and “continued issues with intermittent radiation to feet and neck”.
Further consultations related mainly to Ms Rapisardi’s pregnancy, with some references to “back injury” and lower back pains, and “low back playing up with pregnancy”. On 11 May 2020, Dr Joanne Ma noted the birth of Ms Rapisardi’s baby.
On 18 November 2020, Dr Tan recorded “ongoing low back pain”.
On 13 May 2021 Dr Tan recorded the reason for visit as “neck pain” and “c/o neck pain more along with low back pain now”. He explained “from the history we’ve received the main issue has always been in her lumbar spine and that she complained of pain radiating from there to neck and LL’s will image neck after she has her baby”.

Norwest General Practice reports and Certificates of Capacity

On 18 December 2018, Dr Robert Marsham reported to Employers Mutual in response to comments and questions put to him[31]. The briefing letter is not in evidence but his responses indicated that Ms Rapisardi had unexplained weight loss and her BMI was 17.2. He said the relationship between her description of the cause and the injury was “uncertain”. She indicated she had a significant fall which immediately led to back pain but, whether this was the moment at which the minor disc bulge occurred was not clear. Her recovery had been “slowed significantly by some psychosocial ‘yellow flags’”, and he could not be certain that her pain was directly due to the workplace injury. He saw no reason why she should not be able to return to pre-injury duties.
[31] Reply page 37.

On 2 March 2020, Dr Tan reported to Unified Healthcare Group[32]. In response to questions, he said Ms Rapisardi reported having fallen from a ladder at work on 20 August 2018 and “landing on his side and experiencing immediate lower back pain”. He referred to L5/S1 disc prolapse and “chronic lower back pain – treated with physiotherapy including hydrotherapy and chiropractic manipulation”. Requirement was the main contributing factor to her condition. Her symptoms related to the disc bulge and not to osteopenia.
[32] ARD page 36.
Apparently in response to questions about Ms Rapisardi’s capacity for employment,
Dr Tan wrote that he hoped “with appropriate management” that she “would be able to return to pre-injury duties but her prognosis remains uncertain”. If she continued to fail to respond to treatment, her capacity would be limited to work that does not involve any lifting, long periods in the same position, and repetitive bending or twisting.

Certificates of Capacity in evidence from Norwest General Practice date from 3 December 2018[33] to 12 December 2019[34] with some gaps in between. All describe the workplace injury as either “Lower back pain” or “Lower back pain, L5/S1 disc prolapse”. None refer to the accepted left ankle injury.

[33] AALD page 31.

[34] AALD page 89.

Dr Silva’s reports

Dr Thomas Silva, consultant orthopaedic surgeon, provided reports to the insurer dated 9 April 2019, 3 June 2019 and 8 July 2019.[35]
[35] Reply pages 5, 10, 13.
In his first report, Dr Silva reported a history of the fall that Ms Rapisardi landed on her left leg and rolled onto her left side, and “complained of back pain radiating up to the neck”. She “still has some low back pain which radiates upwards to the root of the neck”. She had full mobility in both shoulders but three quarters of range of extension, flexion, rotation and lateral flexion of the cervical spine. There was no cervical radiculopathy, although some deep tenderness over the nape of the neck. He recommended a nuclear body scan of the cycle, thoracic and lumbar spine.
In his second report, Dr Silva noted the bone scan showed some osteopenia but said that was a matter for an endocrinologist to comment on. He expected her work-related lumbar strain would have resolved by now, enabling her to return to pre-injury hours and duties. It was probable that “some of her continuing aches maybe due to osteopenia”.
In his third report, Dr Silva confirmed his diagnosis of lumbosacral strain, and that
Ms Rapisardi should be considered fit for pre-injury hours and duties.

Dr Katafaris’ reports

Dr Con Katafaris, injury management consultant, reported to the insurer on 29 January 2019.[36] He noted that she described pain “over the entire lumbar spine and pain i.e. from her cervical spine into her thoracic spine and lumbar spine”. He noted “a degree of guarding an abnormal illness behaviour”.
[36] Reply page 15.
Dr Katafaris said he had discussed Ms Rapisardi’s condition with Dr Marsham at some length and they had agreed, among other things, that there was a “psychosocial component” to her presentation including distress and anxiety. That was not to say she have not sustained any injury at all but that her physical injuries were complicated by a psychological phenomenon.
As Ms Rapisardi’s capacity , Dr Katafaris proposed a graduated return to pre-injury hours within the next 12 to 14 weeks.
On 30 July 2019, Dr Katafaris reported on a file review including Dr Silva’s reports and scans[37]. He said Ms Rapisardi was fit for four hours per day, four days per week. He said clear recommendations and injury management were difficult because
[37] Reply page 20.
Ms Rapisardi “had not been seen by the proposed NTD”.

Dr Cunningham’s report

On 27 September 2019, Dr Corey Cunningham, sports and exercise medicine physician, reported to Dr Tan[38]. He described the fall at work, that Ms Rapisardi landed “Initially on her feet and there was she describes a rolling/twisting force through her back”. She was able to get up and walk around but quickly experience number back pain and muscle spasm.
[38] AALD page 1.
Dr Cunningham said Ms Rapisardi described “ongoing pain in the central lumbar region, radiating up towards her neck as well as down both legs”. Treatment to date had included physiotherapy, chiropractic treatment, hydrotherapy and intermittent massage. A SPECT CT Scan had excluded fracture in the lumbar spine but there was a minor central disc protrusion L5/S1. He said her ongoing pain “relates to her L5/S1 injury, complicated by chronic pain syndrome and sensitisation”.

Dr Bodel’s first report

Dr Bodel saw Ms Rapisardi for assessment on 25 October 2019 and provided a report of the same date.[39]
[39] ARD page 38.

Dr Bodel summarised Ms Rapisardi’s injuries at the start of his report as injuries to the lower part of the back and the left ankle. He noted the circumstances of the fall and that she “landed awkwardly on her left foot and ankle and jarred her back”. She had “ongoing pain in the back and to a lesser extent in her neck” and was treated with medication and physiotherapy, and chiropractic treatment. He noted she “still has pain in the back and to a lesser extent in the neck and also in the left foot and ankle”.
Dr Bodel described Ms Rapisardi’s current complaints as “continuing pain at the base of the neck and over the top of the left shoulder” pain in the lower part of her back, numbness down the right leg, and some discomfort in the left ankle.
Dr Bodel noted that Dr Doig indicated that Ms Rapisardi had lower back pain and also “niggling pain in the neck”. He noted Dr Doig’s initial assessment of whole person impairment and his retraction of the assessment of the cervical spine. Dr Bodel said he disagreed with Dr Doig based on the clinical findings at the time of his own assessment and the history of injury given.
On examination, Dr Bodel noted that Ms Rapisardi’s “neck and back are stiff”. He said:
“There is tenderness in the trapezius muscles at the base of the neck on the left and she has a slight restriction of neck flexion extension and rotation in all directions. There is some asymmetry of neck movement particularly on rotation to the right.”

Dr Bodel noted Dr Silva’s report of 9 April 2019 that Ms Rapisardi had suffered mainly a lumbosacral strain “and the pain radiates up the spine to the root of the neck”.
Dr Bodel said he agreed with that summation of the pathology in the lumbosacral region. He noted that bone mineral studies indicated Ms Rapisardi was in “osteopenic range”. He noted the Carlingford Court Medical Centre notes, WorkCover certificate and treatment reports from Pinnacle Rehab.
In response to specific questions, Dr Bodel described the fall and that Ms Rapisardi landed “heavily on her left foot and ankle and jarring her back and also her neck”. He diagnosed soft tissue injury to the lower part of the back and damage to the L5/S1 disc, a soft tissue muscular ligamentous injury to the neck, and probable ligamentous injury to the left ankle. The injuries to the neck, back and left foot and ankle, had been caused by the fall.
As to Ms Rapisardi’s capacity for work, Dr Bodel noted she had been able to return to work on reduced hours and duties which, he said, was appropriate. Improved physical fitness levels would enhance her ability to upgrade her hours. In the meantime, she had restricted capacity for work. She had had appropriate treatment including rest, analgesic medication and physiotherapy. She would benefit from remedial massage, hydrotherapy and exercise.

Dr Doig’s first report

Dr Doig saw Ms Rapisardi for assessment on 10 July 2020 and provided a report dated 15 July 2020[40]. He had Dr Silva’s reports, Dr Bodel’s first report, and various scans.
[40] Reply page 23.
Dr Doig took a history of the fall consistent with that taken by other doctors. He noted that Ms Rapisardi’s left ankle continued to improve and that her “other injuries were to the lower-back and cervical-spine regions”. He noted that her “main, ongoing problems are related to her lower back with niggling discomfort and a locking sensation in her cervical spine”.
On examination, Dr Doig said Ms Rapisardi “remained tender over both trapezius muscles at the base of the neck and at the lumbosacral junction”.
As to whether Ms Rapisardi’s ongoing symptoms were due to osteopenia, Dr Doig said that was a radiological diagnosis and “completely unrelated to the work injury on 20 August 2018”.
Dr Doig concluded that Ms Rapisardi suffered from permanent impairment which, included a 5% whole person impairment of the cervical spine. He said his impairment rating differed from Dr Bodel’s only in respect of the left ankle.

Dr Doig’s supplementary report

In a supplementary report dated 26 August 2020[41], Dr Doig responded to a statement and questions from the insurer. Because submissions at the hearing went to the wording of what EML asked of Dr Doig and, therefore, to his responses, they are reproduced in full as follows (Dr Doig’s responses in italics):
“EML note that the cervical spine injury has not been accepted on this claim nor has there been any report of a cervical spine or neck injury on any of the certificates of capacity provided by Ms. Rapisardi. EML also do not have any radiology on file for this body part.
A. In your opinion, how is the cervical spine injury related to the mechanism of injury? In your answer, could you also please refer to which documentation describes Ms. Rapisardi as having sustained a cervical spine injury.
Many thanks for informing me that the cervical-spine condition/injury has not been accepted as a result of the work injury, with no prior report of neck problems or any certificate of incapacity confirming a neck injury. It therefore would appear that unless there is evidence to the contrary that any current neck problems, in particular tightness in the trapezius muscles in inter-scapular area of the base of Ms Rapisardi's neck, appears unrelated to the incident at work.
B. As per the IME with Dr. T. Silva and subsequent supplementary reports, EML have declined ongoing liability for the ankle and lumbar spine. Could you please clarify how the cervical spine is related to the accepted injuries given that EML have declined these on the basis they are no longer related to the workplace injury and any ongoing symptomology is pre-existing disease (emphasis added). Please also note that the Section 78 notice declining the lumbar spine and ankle has been maintained after a recent iCare review dated 17/07/2020.
Based on the documentation supplied, it would therefore appear that any restrictions in the cervical spine are completely unrelated to the incident at work when she fell off a ladder as outlined in my original report. The purpose of my assessment was to provide a whole person permanent impairment based on
[41] Reply page 28.
Ms Rapisardi's current, clinical findings using the AMA5 and the NSW WorkCover Guidelines respectively. If the anatomical areas that currently reveal examination findings of pathology and restrictions, based on the documentation supplied, this appears to be unrelated to the previously described work injury in that the lumbar spine and ankle conditions have been declined.”

Dr Bodel’s supplementary report

In a supplementary report dated 2 November 2019[42], Dr Bodel noted that Dr Doig indicated that Ms Rapisardi had lower back pain and also “niggling pain in the neck”. He noted Dr Doig’s initial assessment of whole person impairment and his retraction of the assessment of the cervical spine. Dr Bodel said he disagreed with Dr Doig based on the clinical findings at the time of his own assessment and the history of injury given.
[42] ARD page 39.
Dr Bodel said the history of Ms Rapisardi’s fall was that she fell from a height of about 2 to 2.5 m injuring her left foot and ankle and jarring her back initially, and “within a very brief period of time” she also felt pain in the neck. She continues to complain of neck, back, left foot and ankle pain. He said:
“The neck was always less troublesome than the back but clinically, at the time of my assessment there was a rateable restriction of neck movement [and other body parts], which justified the level of impairment that I gave.”

Dr Bodel said he disagreed with Dr Doig’s retraction of the rating for the cervical spine. He confirmed his view that Ms Rapisardi developed symptoms in the neck soon after the accident and jarred her neck.

SUBMISSIONS
The applicant’s submissions

For Ms Rapisardi, Mr McEnaney submits that the undisputed evidence is that she fell awkwardly from a height of approximately 2 m. Her evidence is that, within minutes, she felt severe shooting pain in her neck, lower back, left ankle and foot. Within approximately 20 minutes, her manager sent her to her doctor. It is plausible, consistent with a fall of that nature, that she injured her neck.
Mr McEnaney submits the only real issue at this point is why the doctor did not record neck pain. In contrast, on 23 August 2018, the notes refer to the left hip and pelvis, neither of which is relevant to the claim. Mr McEnaney submits that Dr Anandakumar was not taking a “laundry list of complaints” but, rather, broad notes of what had been happening.
Mr McEnaney refers to the Certificate of Capacity issued by Dr Anandakumar on
8 October 2018, approximately six weeks after the fall, which refers to neck pain.
Dr Gray, a spine surgeon, reported back on 25 October 2018, eight weeks after the fall, that Ms Rapisardi had symptoms in her whole back including widespread pain arising from the cervical spine.
Mr McEnaney submits that the doctors’ focus was on Ms Rapisardi’s lumbar spine. She does not dispute the lumbar spine was her main problem but says so was her neck.
Dr Bodel took a history, 12 months after Dr Gray, that Ms Rapisardi jarred her back in the fall and had ongoing pain in her back and, to a lesser extent, in her neck. Consistent with Dr Gray, he found most of the problems were in her lower back. However, he found some asymmetry in neck movement on examination and slight restriction of movement in all directions. Her neck and back were stiff and there was tenderness in the trapezius muscles at the base of the neck.
Relying on Mason v Demasi[43] and Davis v Council of the City of Wagga Wagga[44],
[43] [2009] NSWCA 227 (Demasi).
[44] [2004] NSWCA 34; 4 DDCR 358 (Davis).
Mr McEnaney submits that I should not draw conclusions from the clinical notes, and should not take them as an unerring account. When Dr Marsham saw her as a new patient, his real concern seems to have been her mental well-being. So, for example, he made a note of a bang to the right knee that seems immaterial; he was trying to work out the whole picture. On 11 February 2019, he noted she had pain worst in her back and shoulders, consistent with other records about pain in the trapezius muscles. Further, on 8 May 2019, Dr Thomas requested a whole body nuclear scan including the cervical, thoracic and lumbar spine.
In contrast to Ms Rapisardi’s strong case, Mr McEnaney submits the respondent’s case rests on Dr Doig. In his first report, Dr Doig accepted the injury to the cervical spine and apparently had no difficulty with the mechanism of injury. It was then put to him that no Certificate of Capacity referred to Ms Rapisardi’s neck, whereas Certificates of Capacity issued on 4 October 2018 and 8 October 2018 both cited neck pain, and
Dr Gray noted “quite widespread pain arising from her cervical spine”.
Further, Mr McEnaney submits, Dr Doig said Ms Rapisardi’s neck appeared to be unrelated to the incident at work unless there was evidence to the contrary, in particular tightness in the trapezius muscles in inter-scapular area at the base of the neck. There was such evidence because Dr Bodel found tenderness in the trapezius muscles at the base of the neck on the left and other symptoms.

Mr McEnaney submits the respondent’s case is founded on an incorrect basis. I should accept Ms Rapisardi’s statement. He submits is not fatal that she did not refer to the neck on the injury claim form. The evidence is in all other respects consistent with the evidence including of Dr Gray and Dr Marshall. It is supported by Dr Bodel’s report and Dr Doig’s first report.
With respect to her capacity for employment, Mr McEnaney submits the evidence shows Ms Rhapsody had continuing pain throughout 2020. For the period in question, she returned to work for four hours, two days a week, for approximately three weeks, then went on maternity leave. There is no dispute that her pre-injury average weekly income (PIAWE) was $924. She was able to earn approximately $272.33. The only question for determination is whether the work she did in those three months was to the limit of her capacity.

Mr McEnaney submits that Ms Rapisardi is entitled to a general order under section 60 of the 1987 Act for medical expenses, as itemised in the ARD.

The respondent’s submissions

Mr Stockley submits the respondent has no argument with Demasi or authorities including The Waterways Authority v Fitzgibbon[45] on the reliability of clinical records as evidence of facts. The respondent does not suggest that clinical notes are conclusive, but they nevertheless form part of the evidentiary matrix.
[45] [2005] HCA 57; 79 AJR 1816.
Mr Stockley submits that I would not accept Ms Rapisardi’s claim to have suffered a direct injury to her neck in the fall at work. She claims in her statement dated 11 May 2021 to have jarred her lower back and neck in the fall and that she felt severe, shooting pain in her neck as well as her lower back, left ankle and foot.
Mr Stockley submits that was not what Ms Rapisardi said at the time. He refers to the description of injury she gave on the claim form the following day, that she fell on her left side and had back and leg problems. While that is a different question from the question as to body parts elsewhere on the form, there is no reference anywhere to her injuring her neck or to shooting pain in the neck. On that basis alone, Mr Stockley submits, I would have difficulty accepting her account.
Further, Mr Stockley submits, the clinical records underline the difficulty with
Ms Rapisardi’s evidence. There is no reference to her neck in her doctor’s notes on the day of the fall. The referral to Dr Gray related to her lower and upper back pain, and scans were ordered for her lower back but not for her neck.
Mr Stockley submits that Dr Gray refers to widespread symptoms including in
Ms Rapisardi’s neck but he does not conclude there was an injury. He seems to have connected symptoms in her neck with the fall but this is the highpoint of his analysis.
Mr Stockley does not suggest that conclusions can be drawn based on clinical notes alone but it is significant where there is an absence of complaint over time of something that is now claimed to be significant. He submits the doctors took reasonably detailed notes of her symptoms, including apparently minor matters such as a “bang” to her right knee, but not of the neck.
On 13 May 2019, Dr Marsham recorded the pain was worst in Ms Rapisardi’s neck and shoulder blades, and persistently on her shoulders, but thought her symptoms are unlikely to be related to the lower back pain in the fall eight months earlier. Mr Stockley submits this is not consistent with her complaint of the frank neck injury and shooting pain on the day of the fall.

Mr Stockley submits the only person who really links Ms Rapisardi’s neck symptoms to the fall is Dr Bodel. It takes a history of ongoing pain in her back and, to a lesser extent in her neck. However, he takes no history when she first noticed pain in her neck. He found tenderness in the trapezius at the base of the neck but does not identify pathology in the neck. He does not explain how the diagnosis of soft tissue injury to the neck sets with the finding in relation to the trapezius, or how her neck was injured.
Mr Stockley submits that, in his second report, Dr Bodel said Ms Rapisardi jarred her back initially and, after a brief time, felt pain in her neck. This is not what Ms Rapisardi says. Mr Stockley submits that Dr Bodel’s opinion appears predicated on an assumption of injury rather than a determination that there was an injury. His opinion does nothing to overcome the evidentiary problems with her case.
With respect to Dr Doig, Mr Stockley submits his responses in his second report should be read in context. It was fair to say that Certificates of Capacity did not refer to injury, only to symptoms. The assumption that he was asked to make, that there was no reference in the certificate to injury to the neck, was fair enough.
Mr Stockley submits I would find that Ms Rapisardi has failed to discharge the onus to establish her claim. This is not a case of delayed onset of pain which might be explained in medical terms, or where a person realises later they were more injured than they thought; Ms Rapisardi insists on a frank injury and onset of pain at the time of the fall. There is no corroborating evidence to support that claim.
With respect to capacity, Mr Stockley relies on Dr Silva’s report that, in June 2019, the lumbar strain had resolved.

Mr Stockley submits the section 60 claim will stand or fall on the question injury and there should be liberty to apply for any dispute arises.

Submissions in reply

In reply, Mr McEnaney submits the respondent asked me to accept the certificate of capacity as a description of symptoms but not diagnosis of injury. On that basis,
Mr McEnaney submits, the respondent would have declined the claim in relation to other body parts as well. The submission for Ms Rapisardi is not that the certificate is a diagnosis, rather that it is a record of contemporaneous complaint.
With respect to Dr Bodel, Mr McEnaney submits he did in fact diagnose injury to the neck. Dr Doig found the same injury in his first report. The consensus of medical opinion was of problems in the neck. Dr Doig was then asked a question as to whether any ongoing symptomology was a pre-existing disease, when there is no evidence to that effect.
Mr McEnaney submits the respondent tries to examine the clinical records in order to find against Ms Rapisardi. The respondent asked to conclude, because Dr Marshman did not refer to the neck, that there was no injury. However, he does not refer to any other body parts including the back. On that basis, there would be no injury to the back.
Mr McEnaney submits Dr Marsham was dealing with a very depressed young woman and trying to work out what the problem was, not to compile a forensic report.
Mr McEnaney submits the best the respondent can say is that Ms Rapisardi not refer to her neck in the claim form, and it is not in the general practitioners’ notes. Against that documented complaints shortly after the fall about her neck.

CONSIDERATION

Section 9 of the 1987 Act provides that a worker who has received an injury shall receive compensation from his or her employer.
For the purposes of the 1987 Act, “injury” is defined in section 4 as follows:
“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, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A provides that no compensation is payable in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Section 9A(2) provides the following non-exhaustive list of examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury:
(a)     the time and place of the injury;
(b)     the nature of the work performed and the particular tasks of that work;
(c)     the duration of the employment;
(d)     the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment;
(e)     the worker’s state of health before the injury and the existence of any hereditary risks, and
(f)      the worker’s lifestyle and his or her activities outside the workplace.
There is no dispute as to the circumstances of the fall at work on 20 August 2018. Nor is there any dispute that Ms Rapisardi suffered injury to her lumbar spine and left ankle in the fall. The question for determination is whether she also suffered injury to her cervical spine.

Ms Rapisardi bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish her claim: Department of Education and Training v Ireland[46]; Nguyen v Cosmopolitan Homes[47].
[46] [2008] NSWWCCPD 134.
[47] [2008] NSWCA 246.

In her written statement dated 21 April 2021, Ms Rapisardi states that she fell about
two metres to the floor, landing awkwardly on her left foot and ankle followed by the rest of her body as she “crashed to the floor and jarred her lower back and neck in the process”. Within minutes, she felt “severe, shooting pain” in her neck, lower back, left ankle and foot.
The challenge to Ms Rapisardi’s claim in relation to the cervical spine resists primarily on what the respondent says is the absence of contemporaneous complaints or record about any injury to her neck.

Ms Rapisardi saw her doctor the same day. Dr Anadakumar’s notes make no mention of her neck. Ms Rapisardi states:

“In hindsight, I think she neglected to mention my neck pain in my Certificate of Capacity as, although the pain in my lower back and neck were entirely connected, the focus would have been more on my lower back. I am certain that I would have told Dr Anandakumar about the pain I suffered in my neck as the onset of this pain was simultaneous to the pain in my lower back.”

With respect to Ms Rapisardi, she may be certain she told Dr Anandakumar about the pain in her neck but she is not in a position to speculate as to why the doctor neglected to mention neck pain in the Certificate of Capacity (or in her notes for that day).
Ms Rapisardi’s statement was made nearly three years after the fall. It is possible that her recollection is not as clear as her statement suggests. It is possible that she has exaggerated somewhat the degree of pain she felt at the time. Her statements that she did not end up seeing either Dr Gray or Dr Cunningham, when in fact she saw both, suggest she is a poor historian. In any event, there is no more contemporaneous statement of her evidence.
The only contemporaneous evidence directly from Ms Rapisardi is the Injury Claim Form she completed on the day after the fall in which she describes the affected parts of her body as “left side of body – foot, ankle, whole lower back incl - spine”. Given her statement about “severe shooting pain” in her neck shortly after the fall, the question is raised why she did not refer to her neck as well.
It is undisputed that Ms Rapisardi fell from considerable height directly onto the floor.
I accept, as Mr McEnaney submits, that it is entirely plausible that she injured her neck in the fall, but it does not necessarily follow. On the other hand, a brief description on a claim form says very little.
In these circumstances, the clinical records and reports from Ms Rapisardi’s treating doctors become an important means by which to test her claim.

It is well-established that clinical notes must be approached with caution, consistent with the observations of Basten JA in Demasi where he said:
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], 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.
The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.”
In Davis, Mason P said of the assessment of medical notes:
“35. Experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury. It is possible, and not merely speculatively so, that Dr Middleton misunderstood the precise mechanics of the immediate antecedent of the fall.
36. One can also envisage several reasons why the early hospital records make no mention of the mechanics of the fall. They had little to do with the diagnosis and treatment of an obviously serious injury. The plaintiff ought in fairness to have been given the opportunity to explain the entries if (which I doubt) they were inconsistent with his later testimony.”
There is no reference in notes of five appointments at Carlingford Court Medical Centre between 20 August 2018 and 6 September 2018 to Ms Rapisardi’s neck. The focus was evidently her lower back. The notes also refer to her left ankle, and to a painful left hip, both of which apparently related to the fall.
On 27 August 2018, Dr Lok noted referrals to a physiotherapist and chiropractor. It appears the physiotherapist was Catherine Reese, who reported to Dr Anandakumar on 11 September 2018. Ms Reese said she had seen Ms Rapisardi for five sessions. She does not give the dates of the sessions but there is no evidence that she had seen Ms Rapisardi before the fall, and it is reasonable to infer those five occasions had been in the previous three weeks or so.
Ms Reese reported that Ms Rapisardi had been reporting “neck pain in association with the fall”. There was increased neck pain in certain positions, and restriction in all directions. Ms Reese requested the doctor review Ms Rapisardi for suitability of treatment of her lower back and neck region.
Ms Reese’s report shows that, within approximately three weeks of the fall, there is a record of complaints of neck pain which Ms Rapisardi associated with the fall, and restricted movement of her neck.
Dr Anandakumar’s notes on 28 September 2018 record what appears to be a request by the insurer for a diagnosis of Ms Rapisardi’s condition. Up until that time, all Certificates of Capacity had referred to the diagnosis simply as “work-related injury”.
The next Certificate of Capacity in evidence following the request for a diagnosis, was dated 4 October 2018. It describes the diagnosis as “Upper & lower back pain, neck pain, pain & numbness feet/toes, numbness lower back”. It does not refer to the left ankle which was subsequently accepted by the respondent, or the hip and pelvis, all of which had been recorded in the clinical notes.
It cannot be assumed that Dr Anandakumar would have provided a diagnosis including neck pain from her first Certificate of Capacity, had she been asked sooner, although it is a reasonable inference. However, the lack of consistency between the clinical records and the Certificates of Capacity underscores the caution needed before relying on them as an accurate record of Ms Rapisardi’s complaints at the time.
Given the diagnosis on the Certificate of Capacity on 4 October 2018, it is not clear why the referral to Dr Gray on that date referred only to lower and upper back pain and numbness in the feet following the fall. In any event, on 25 October 2018, Dr Gray reported to Dr Anandakumar that Ms Rapisardi had symptoms distributed along her whole back and “quite widespread pain arising from her cervical spine” as well as other body parts, most being in her lower back.
A further certificate including a diagnosis of neck pain was issued by Dr Wanigaratne on 29 October 2018. That appears to be the last time Ms Rapisardi attended at the Carlingford Court practice.
On 29 January 2019, Dr Katafaris noted pain from Ms Rapisardi’s cervical spine into her thoracic spine and lumbar spine, as well as “abnormal illness behaviour”. That was not to say she had not sustained any injury at all, but they were complicated by “a psychological component”.
There are no records of neck or shoulder pain in the Norwest Medical Practice notes until 11 February 2019, when Dr Marsham recorded Ms Rapisardi’s “whole back” was hurting and the pain was worse in her back and shoulders. On 8 April 2019 he recorded “pain in trapezius muscles” and throughout her back. He noted “unchanged” but not what in particular was unchanged.
On 9 April 2019, Dr Silva took a history from Ms Rapisardi of pain radiating “upwards to the root of the neck”. He noted some limitation of movement in the neck in all directions and some “deep tenderness” over the nape of the neck. He recommended a body scan of the cervical, thoracic and lumbar spine.
The first reference in the Norwest Medical Practice notes to Ms Rapisardi’s neck in particular was by Dr Thomas on 7 May 2019 when she requested a whole body scan including the cervical spine, presumably on Dr Silva’s recommendation. On 13 May 2019, Dr Marsham recorded the pain was “worst in neck and shoulder blades”. He noted persistent pain in the shoulders which he thought unlikely related to the fall eight months earlier. There are further references to neck pain by Dr Tan on 22 July 2019 (radiating from the lower back up to the neck on occasion) and 13 May 2021.
There is no question that the clinical records raise a number of questions, especially given Ms Rapisardi’s claim she felt severe shooting pain in her neck shortly after the fall, and continued to have pain in her neck. Whether she told Dr Anandakumar about her neck pain as she claims is impossible to determine. However, the discrepancies between the clinical records and other documents such as the Certificates of Capacity, and reports of neck pain by Ms Reese and Dr Gray only serve to underline the caution urged by the judges in Demasi and Davis.

I accept that there are some discrepancies in the histories taken by different doctors as to where Ms Rapisardi felt pain at the time of the fall. The majority focus on her reports of lower back pain. I accept that the Injury Claim Form she completed the following day does not specifically refer to neck pain. Against that are the Certificates of Capacity diagnosing neck pain, Ms Reese’s report of 11 September 2018 of neck pain in association with the fall and restricted movement, Dr Gray’s report on 25 October 2018 of widespread pain arising from the cervical spine, Dr Katafaris’ report on 29 January 2019 of neck pain, Dr Silva’s report on 9 April 2019, and references in Dr Marsham’s records.
In my view, read as a whole, these documents support Ms Rapisardi’s claim with respect to the cervical spine.

Turning to the independent assessments, Dr Bodel and Dr Doig were in agreement initially as to injury.
There are some apparent discrepancies in Dr Bodel first report. Initially he summarised Ms Rapisardi’s injuries as to the lower part of the back and the left ankle. He took a history that she landed awkwardly and jarred her back. Later in his report he described her injuries to the neck, back, and left foot and ankle, and that Ms Rapisardi jarred her back as well as her neck. I do not think anything turns on these discrepancies. Dr Bodel described his findings on examination including her neck and back were stiff, there was tenderness in the trapezius muscles at the base of the neck on the left, and she had slight restriction of neck movement in all directions. He diagnosed soft tissue musculoligamentous injury to the neck caused by the fall at work.
In his first report, Dr Doig described ongoing problems in Ms Rapisardi’s back with “niggling discomfort and a lacking sensation in her cervical spine”. On examination, he also noted tenderness over both trapezius muscles at the base of the neck. He made the same assessment of whole person impairment as Dr Bodel.
Dr Doig retracted his opinion in response to matters put to him by the insurer. It was first put to him that liability had not been accepted on the claim for the cervical injury, nor had there been “any report of the cervical spine or neck injury on any of the certificates of capacity provided by Ms Rapisardi”.
Dr Doig’s response indicated that, because liability had not been accepted and because there was no prior report of neck problems or any certificate of incapacity confirming neck injury, “therefore” any neck problems appeared unrelated to the incident at work.
As the evidence discussed above shows, both statements put to Dr Doig were incorrect at least in part. Moreover, it is not clear why the denial of liability would have any impact on his medical opinion.
A further difficulty with Dr Doig’s report is that he says “unless there is evidence to the contrary that any current neck problems, in particular tightness in the trapezius muscles in the interscapular area of the base of Ms Rapisardi’s neck”, her neck condition appeared unrelated to the incident. The wording of that sentence is a bit unclear but
I do not understand there to be any dispute that Dr Doig considered tightness in the trapezius muscles to be a factor relevant to injury.
Dr Doig and Dr Bodel had both found tightness in the trapezius muscles at the base of Ms Rapisardi’s neck on examination. Dr Doig does not explain how he reconciles his findings on examination with the retraction of his opinion.
The second question asked Dr Doig to clarify how the cervical spine was related to the injuries to the ankle and lumbar spine given that ongoing liability for them was declined and that “any ongoing symptomology was pre-existing disease”. It is not clear whether it was suggested that all three were pre-existing injuries but Dr Doig answered that it would therefore appear that any restrictions in the cervical spine were “completely unrelated” to the incident at work.
There is no evidence of pre-existing injury to Ms Rapisardi’s cervical spine. If Dr Doig considered that a relevant factor, he was misdirected.
In his supplementary report, Dr Bodel explains that he and Dr Doig made the same assessments in relation to Ms Rapisardi’s neck, based on similar findings on examination. Given that they started from the same point, that Dr Doig retracted his opinion on the basis of the questions put to him, and that he does not appear to have engaged with his own findings on examination, I prefer Dr Bodel’s opinion.
Considering the evidence as a whole, I am satisfied that it supports the conclusion that Ms Rapisardi sustained injury to her lumbar spine, cervical spine and left ankle in the course of her employment with the respondent on 20 October 2018, and that her employment was a substantial contributing factor to her injuries.

Capacity and medical expenses

Ms Rapisardi claims weekly payments for the period 24 September 2019 to 30 December 2019. It is agreed that her PIAWE was $924. According to the ARD, she was able to earn approximately $272.33.

The respondent relies on Dr Silva’s report dated 8 July 2019 in which he considered Ms Rapisardi to be fit for pre-injury hours and duties.
Other reports concerning Ms Rapisardi’s capacity for employment are as follows.
On 25 October 2018 Dr Gray reported that he was “happy for her to return to work doing light duties and gradually increase this level of activity as tolerated”.[48]
[48] ARD page 25
On 18 December 2018, Dr Marsham reported in response to questions from the insurer, that he saw “no reason why [she] should not be able to return to pre-injury duties”.[49] The questions are not set out in the report and it is not clear whether
[49] Reply page 37.
Dr Marsham was indicating any particular time frame.
On 29 January 2019, Dr Katafaris reported that Ms Rapisardi had been off work until the last one to two months and was now working two hours a day, two days a week.[50] Dr Katafaris noted his discussion “at some length” with Dr Marsham. They agreed that, if she were to return to pre-injury duties, she would need to do so within the next 12 to 14 weeks and would need to try regular upgrades every two weeks or so to achieve this. If she chose to return to pre-injury hours with this time frame, an upgrade to
[50] Reply page 15.
pre-injury duties would occur within a further two to three months, effectively allowing her to achieve a return to pre-injury duties within 12 months of the date of injury.
On 30 July 2019, on conducting a file review, Dr Katafaris reported that Ms Rapisardi was fit for four hours per day, four days per week.[51]
[51] Reply page 20.
On 25 October 2019, Dr Bodel noted that Ms Rapisardi had seen Dr Katafaris in January 2018 in an attempt to try to return it to the workforce. He noted that
Dr Katafaris had proposed an action plan and “unfortunately no agreement on the way forward was identified at that time”. Dr Bodel noted the WorkCover certificates and treatment reports from Pinnacle Rehab about her attempted return to the workforce which had been complicated by “incomplete resolutions of symptoms, making it “very difficult for her to return to appropriate work”. He noted that Ms Rapisardi had been able to return to work on reduced hours and duties which, he said, was appropriate; improved physical fitness levels would enhance her ability to upgrade her hours, but her prospects were “somewhat guarded” because of the persisting effects of her injuries.

On 15 July 2020, in response to the question when Ms Rapisardi should be deemed fit for pre-injury duties for the accepted injury of lumbosacral strain, Dr Doig said she “may be able to upgrade to pre-injury status with respect to her lower back injury” on finishing her maternity leave.[52] It would depend on the physical pre-requisites of her job and he believed she would have lifting, pushing and pulling restrictions.
[52] Reply page 26.
Certificates of Capacity completed by doctors at Norwood Medical Practice show that, from 19 August 2019 to 16 September 2019, Ms Rapisardi was certified fit for suitable duties for hours on two days a week and three hours on two other days. From
16 September 2019 and throughout the period claimed, she was certified fit for four hours on two days, and 3½ hours on two days, totalling 15 hours per week.
While Dr Silva considered on 8 July 2019 that Ms Rapisardi was fit for pre-injury duties and hours, the general view of the doctors indicated she needed a graduated return to work. Dr Bodel noted in October 2019 that her return to work had been complicated by the effects of her symptoms. I am satisfied that the Certificates of Capacity indicating that, during the period in question, she had capacity for 15 hours per week fairly reflect her capacity during that period.
I find that Ms Rapisardi had partial capacity for employment equivalent to 15 hours per week in the period 24 September 2019 to 30 December 2019 and is entitled to weekly payments pursuant to s 37 of the 1987 Act at 80% of her PIAWE, being $739.20.

Ms Rapisardi is entitled to payment of medical expenses pursuant to section 60 of the 1987 Act.
Parties have liberty to apply with respect to the calculation of weekly payments and medical expenses.

[2021] NSWPIC 314

31 August 2021