Riganias v Cre8tive Roofing Services Pty Ltd
[2024] NSWPIC 228
•3 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Riganias v Cre8tive Roofing Services Pty Ltd [2024] NSWPIC 228 |
| APPLICANT: | Nicholas Riganias |
| RESPONDENT: | Cre8tive Roofing Services Pty Ltd |
| MEMBER: | Kathryn Camp |
| DATE OF DECISION: | 3 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4(a) and 4(b)(ii); injury simpliciter; aggravation of a disease injury; Rail Services Australia v Dimovski and AV v AW considered; mechanism of injury; identifiable pathological change; Ky v Blue Leaf Food Group Pty Ltd applied; onus of proof; Nguyen v Cosmopolitan Homes applied; increase and worsening of symptoms constitutes an aggravation or exacerbation of a disease injury; Federal Broom Co Pty Ltd v Semlitch applied; section 60(5); claim for medical expenses; whether proposed cervical spine surgery is reasonably necessary as a result of injury; Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd considered and applied; Held – proposed surgery is reasonably necessary as a result of the disease injury. |
| DETERMINATIONS MADE: | The Commission determines: 1. The respondent is to pay the applicant’s reasonably necessary costs pursuant to s 60(5) of the Workers Compensation Act 1987 for the proposed C4/5, C5/6, C6/7 disc arthroplasty surgery as recommended by Dr Parkinson in his report of 23 August 2023, as a result of injury to the cervical spine on 14 October 2022. |
STATEMENT OF REASONS
INTRODUCTION
This matter concerns whether the applicant worker sustained an injury to his cervical spine, under s 4(a) and s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), and whether proposed cervical spine surgery is reasonably necessary as a result of the injury, under s 60 of the 1987 Act. For the reasons discussed below, the worker’s claim for compensation is successful.
BACKGROUND
In December 2021, Nicholas Riganias, the applicant worker, commenced employment as a roof plumber for the respondent, Cre8tive Roofing Services Pty Ltd.
On 14 October 2022, the applicant was at work assisting to install a roof on a rooftop at Western Sydney University when he fell. The applicant claimed that as a result of the fall, amongst other things, he injured his right hand, right shoulder, right elbow, cervical spine, low back, right hip and left knee.
There is no dispute that on this day the applicant suffered a traumatic injury when he fell on the rooftop and sustained a severe laceration to his right hand for which he underwent surgery. The applicant also later underwent surgery on his right shoulder to repair a rotator cuff labral tear.
The respondent’s insurer issued several notices and reviews pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998. Of relevance to the present dispute, the respondent denied liability for injury to the applicant’s cervical spine and claim for compensation for proposed cervical spine surgery in the nature of C4/5, C5/6 and C6/7 disc arthroplasty.
On 16 February 2024, the applicant lodged an Application to Resolve a Dispute in respect of a claim for medical expenses for the costs of proposed cervical spine surgery.
On 12 March 2024, the respondent, under cover of an Application to Admit Late Documents, lodged a Reply.
On 21 March 2024, the respondent, lodged a further Application to Admit Late Documents.
ISSUES FOR DETERMINATION
The following issues remain in dispute:
(a) whether the applicant sustained an injury on 14 October 2022 to his cervical spine, pleaded as an injury simpliciter or in the alternative an aggravation, acceleration and exacerbation of underlying neck condition (ss 4(a), 4(b)(ii) and 9A of the 1987 Act), and
(b) whether the proposed treatment and related expenses in relation to the cervical spine set out in Dr Richard Parkinson’s report of 23 August 2023, is reasonably necessary as a result of the injury as claimed (s 60 of the 1987 Act).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
On 19 March 2024, the parties attended a preliminary conference. During the preliminary conference, the Application to Resolve a Dispute was amended, by consent, to plead, in the alternative, injury to the cervical spine as “injury simpliciter” on 14 October 2022.
On 11 April 2024, the parties attend a conciliation conference and arbitration hearing. Mr Tanner, of counsel, appeared for the applicant instructed by solicitor Mr Power of Turner Freeman Lawyers. Ms Balendra, of counsel, appeared for the respondent instructed by solicitor Ms Tancred of Hicksons Lawyers. The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the hearing.
During the hearing, I directed the parties to refer me to the evidence they sought to rely on in support of their case. I indicated that I would only have regard to the evidence they referred me to in their oral submissions in determining the dispute between the parties. The hearing was recorded and is available to the parties.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Application to Admit Late Documents (AALD – 1) dated 12 March 2024, attaching the Reply to Application to Resolve a Dispute and attached documents, and
(c) Application to Admit Late Documents (AALD – 2) dated 23 March 2024, and attached documents, lodged by the respondent.
Application to Resolve a Dispute
In the Application to Resolve a Dispute the applicant records the injury details as a personal injury sustained on 14 October 2022. Under the heading “Injury Description / Cause of Injury and Death” the following is recorded:
“The Applicant was employed by the Respondent as a roofer. On the date of injury, the Applicant was contracted to work on a construction site at Western Sydney University. The Applicant was asked to fix a crooked ridgeline beam. As the Applicant was fixing the beam, he tripped over a sting line and fell forward. As a result, the Applicant sustained a severe laceration to his right hand and significant aggravation, acceleration and exacerbation of underlying neck, back, right shoulder and right elbow injuries. The claimant requires cervical spine surgery due to the subject injury. Please refer to the Applicant's statement for further details.”
The Application to Resolve a Dispute also records that the amount of compensation sought is $31,082.50 for C4/5, C5/6, C6/7 disc arthroplasty surgery.
Applicant’s statements
In evidence are two statements made by the applicant, dated 17 July 2023 and
15 February 2024. The applicant states that on 14 October 2022 he was working for the respondent at Western Sydney University, to install a roof on the rooftop. He said that the ridgeline beam was crooked, and his supervisor asked him to repair it. As he was repairing the beam, he “tripped over a string line that was used to measure and align the ridgeline”.[1] He adds that he “tripped forward and tried to catch myself with my right hand, however sustained a severe laceration. I fell forward with my arm stretched out and sustained a very deep cut to my right hand”.[2] The following morning the applicant underwent emergency microsurgery to his right hand.[1] Application to Resolve a Dispute (ARD) p 2, applicant’s statement [17].
[2] ARD p 2, applicant’s statement [18]-[19].
The applicant states that he has not returned to work since the injury.
The applicant says that “further injuries includes right shoulder pain which required surgical intervention” on 3 April 2023 and “[c]ervical spine pain and lower back pain (‘Consequential Injuries’)”.[3] He adds that he does “not consider that these are Consequential Injuries but rather injuries which occurred at the time of the fall”.[4]
[3] ARD p 3, applicant’s statement [29]-[30].
[4] ARD p 3, applicant’s statement [31].
The applicant concedes that he had some pre-existing history of chronic back pain. However, “this pain was never as bad as it once was and certainly not as bad as it now is post 14 October 2022 when the fall occurred”.[5] The applicant adds that he has “pins and needles” in his right and left hand due to his neck injury, and never had pins and needles in either hand.[6]
[5] ARD p 3, applicant’s statement [33].
[6] ARD p 4, applicant’s statement [36].
In the applicant’s supplementary statement he states that the symptoms in his neck at the time of the incident “were minimal” and he was able to manage the pain successfully.[7] He adds that the only notable pain he experienced was when carrying large or heavy items above shoulder height.[8] He says that his pre-existing injuries did not affect his capacity to work and was even able to work extra hours on a regular basis with no issues.[9] However, since the incident the pain in his cervical spine has increased drastically and he experiences “sharp, throbbing pain in my head and neck which radiates down my arms to the tips of my fingers…the level of pain fluctuates between a nine or ten out of ten in severity”.[10]
[7] ARD p 5, applicant’s supplementary statement [3].
[8] ARD p 5, applicant’s supplementary statement [3].
[9] ARD p 5, applicant’s supplementary statement [4].
[10] ARD p 5, applicant’s supplementary statement [4]-[5].
Clinical records of Dr Rino Tringali
In evidence are a series of clinical records and a report by Dr Rino Tringali regarding the applicant. The applicant attended on Dr Tringali on numerous occasions complaining of various symptoms to several body parts, including the cervical spine.
On 15 September 2020, Dr Tringali records back pain and cervical pain.[11]
[11] ARD, p 129.
On 7 October 2020, 12 October 2020, 4 November 2020, 8 December 2020,
18 December 2020 and 22 December 2020, Dr Tringali records “cervical pain”.[12][12] ARD, p 130-136.
On 2 January 2021, Dr Tringali records cervical pain interscapular pain.[13]
[13] ARD, p 136.
On 15 January 2021, Dr Tringali records back pain intrascapular pain cervical pain.[14]
[14] ARD, p 137.
On 28 January 2021, Dr Tringali records “right shoulder pain > left shoulder pain cervical pain”.[15]
[15] ARD, p 139.
On 23 March 2021, Dr Tringali records “back pain intrascapular pain cervical pain”.[16]
[16] ARD, p 141.
On 28 May 2021, Dr Tringali records “cervical pain intrascapular pain”.[17]
[17] ARD, p145.
On 25 February 2022, Dr Tringali records “cervical pain”.[18]
[18] ARD, p 154.
On 18 March 2022, Dr Tringali records “back pain intrascapular pain and cervical pain”.[19]
[19] ARD, p 155.
On 14 April 2022, Dr Tringali records “cervical pain intrascapular pain, intercostal nerve entrapment”.[20]
[20] ARD, p 157.
On 6 May 2022, Dr Tringali records “cervical pain intrascapular back pain”.[21]
[21] ARD, p 157.
On 8 July 2022, Dr Tringali records “cervical pain intrascapular pain back pain”.[22]
[22] ARD, p 158.
On 18 July 2022, Dr Tringali records “cervical pain intrascapular back pain”.[23]
[23] ARD, p 159.
On 26 August 2022, Dr Tringali records cervical pain.[24]
[24] ARD, p 160.
On 3 September 2022, Dr Tringali records “cervical pain right upper limb pain paraesthesia 3rd 4th digits”. Dr Tringali refers the applicant for an MRI cervical scan. Under the heading Actions, the clinical notes record “(Acute cervical pain right upper limb pain 3rd 4th paraesthesia Cervical radiopathy…”.[25]
[25] ARD, p 160.
On 14 September 2022, Dr Tringali records “cervical spine with right upper limb pain radiation”.[26]
[26] ARD, p 161.
On 15 September 2022, Dr Tringali records:
“cervical pain right shoulder pain workplace injury
Intrascapular pain
Left shoulder pain.”[27]
[27] ARD, p 161.
On 28 September 2022, Dr Tringali records “cervical pain left upper limb pain paraesthesia left hand”.[28]
[28] ARD, p 161.
On 6 October 2022, Dr Tringali records “cervical pain left upper limb pain”.[29]
[29] ARD, p 162.
On 11 October 2022, Dr Tringali records that the applicant had a “headache migraine”.[30]
[30] ARD, p, 163.
On 15 October 2022, Dr Tringali records that the applicant fell at work on 14 October 2022. He records:
“Fell on the work site whilst on roof top with safety wires tripped whilst holding a piece of metal causing patient to land on right side lacerating right hand 2nd 3rd digits.
Lacerated right hand right wrist pain right elbow right shoulder pain +++
Cervical pain R>L
Headache and dizzy off balance
Lower back pain right leg right foot pain
Right hip pain
Right foot paresthesia/numbness
Left knee pain laceration mid tibia area
Right knee pain.” [31]
[31] ARD, p 163.
On 18 October 2022, Dr Tringali records cervical pain.[32]
[32] ARD, p 164.
On 25 October 2022, Dr Tringali records “cervical pain with right upper limb paresthesia 2nd 3rd”.[33]
[33] ARD, p 166.
From 27 October 2022 there are several more entries by Dr Tringali recording several symptoms including cervical pain and intrascapular pain on 27 October 2022,
31 October 2022, 7 November 2022, 9 November 2022, 10 November 2022,
18 November 2022, 22 November 2022, 25 November 2022, 28 November 2022,
13 December 2022, 19 December 2022, 22 December 2022, 20 January 2023,
25 January 2023, 6 February 2023, 14 February 2023, 23 February 2023, 17 March 2023,
22 March 2023 and 4 April 2023.On 14 November 2022, Dr Tringali records “cervical pain right leg pain”.[34]
[34] ARD, p 170.
On 21 November 2022, 12 December 2022 and 5 April 2023, Dr Tringali records “cervical pain right upper limb pain.”[35]
[35] ARD, pp 171, 174, 185.
In a report of 7 November 2022, Dr Tringali records that the applicant fell on the worksite while on the rooftop. He states that the applicant “tripped holding a piece of sharp metal causing the patient to land heavily and mainly on right side lacerating right hand, wrist, right elbow, right shoulder pain as well as cervical pain with radiation down the right upper limb.”[36] He provides a series of diagnoses, including cervical ligamentous injury.[37]
[36] Reply, p 145.
[37] Reply, p 145.
Dr Tringali records that the applicant had previous cervical pain and that he was working as a carpenter prior to the work incident.[38] He notes that he managed his symptoms with analgesic and anti-inflammatory agents.[39] He adds that:
“Following the fall in the work site his right shoulder pain became acute and severe, his right elbow became acutely painful as well as cervical region with radiated pain down his right upper limb…”[40]
[38] Reply, p 146.
[39] Reply, p 146.
[40] Reply, p 146.
Dr Tringali further records that “[p]re-existing injuries noted on certificate were stable prior to the workplace injury 14/10/22, but were aggravated following the fall on that day 14/10/22”.[41]
[41] Reply, p 146.
On 12 January 2023, Dr Tringali records “cervical pain right upper limb pain 3rd 4th paraesthesia”.[42]
[42] ARD, p 178.
On 16 February 2023, Dr Tringali records “cervical pain right upper limb pain paraesthesia 4th 5th”.[43]
[43] ARD, p 180.
On 20 February 2023 and 2 March 2023, Dr Tringali records “cervical pain left upper limb pain”.[44]
[44] ARD, pp 181-182.
On 6 March 2023, Dr Tringali records “cervical pain with referred upper limb pain paraesthesia”.[45]
[45] ARD, p 183.
Certificates of Capacity
In evidence are several certificates of capacity issued by Dr Tringali. On 15 October 2022, Dr Tringali records a diagnosis of right-hand laceration 2nd digit. Under how the injury is related to work it is recorded: “[f]ell and tripped on steel roof with metal piece in his hand causing him to fall heavily mainly on right side of body causing multiple physical injuries.”[46] It also recorded the following pre-existing factors as relevant “low back pain right shoulder pain right elbow cervical pain right knee meniscal repair”.[47] It further recorded that the applicant had no current capacity for work.
[46] Reply, p 453.
[47] Reply, p 453.
Dr Alfred Massoud
In a report dated 13 July 2023, Dr Massoud, the applicant’s current treating general practitioner, records that the fall caused the applicant’s right-hand laceration and right index finger paraesthesia and accelerated his right shoulder injury. Dr Massoud contends that the mechanism of injury is consistent with a hyperextension injury which can aggravate underlying degenerative changes and in his opinion the applicant had:
“…aggravated his degenerative cervical spine pains and radiculopathy with the fall he sustained as he states his head impacted the ground when he feel [sic, fell], resulting in a whiplash-type injury. Since this fall, [the applicant] has developed weakness in his grip strength and is now dropping objects. There symptoms were not present prior to his fall, suggesting that his cervical radiculopathy has been aggravated by this fall.”[48]
[48] ARD, p 328.
Dr Massoud records that it is evident that the applicant has:
“…numerous pre-existing injuries of his shoulders and cervical spine. He has reported these pains in the past to his previous GP to understand the prior symptoms reported (I am yet to receive his prior medical records despite requests for these). Nonetheless, [the applicant’s] fall at work has resulted in an aggravation of his R shoulder pain and cervicogenic pains with radiculopathy.”[49]
He then concludes that the applicant’s employment is a substantial and main contributing factor to the aggravation of his underlying right shoulder and cervical spine degenerative disease.[50]
[49] ARD, p 328.
[50] ARD, p 329.
Dr Massoud also records that the applicant has “cervicogenic neck pains with bilateral radiculopathy, as evidenced by weakness of his hands and C6 myotomes. He is awaiting neurosurgical intervention for this”.[51]
[51] ARD, p 329.
Dr Richard Parkinson
In a report dated 23 August 2023, Dr Richard J Parkinson, neurosurgeon, seeks approval for the applicant to undergo C4/5, C5/6, C6/7 disc arthroplasty surgery.
Dr Parkinson, in a report dated 31 October 2023, records that he has seen the applicant on four occasions. He states that he first saw the applicant on 13 June 2023 and noted that on examination he “had normal range of cervical motion with no tenderness”.[52] He records that there was a positive Tinel’s test on the left hand and subsequent consultations with nerve conduction studies showed left carpal tunnel compression which was surgically decompressed. He adds that he then referred the applicant to neurologist A/Prof Stacey Jankelowitz who noted “bilateral symptoms and hence my recommendation for a three-level disc arthroplasty at C4/5, C5/6 and C6/7”.[53]
[52] ARD, p 64.
[53] ARD, p 64.
Dr Parkinson adds that the applicant “describes a fall at work on the 14/10/22 which is the precipitant for his symptoms. It appears that his work is a substantial contributing factor to his injuries” and that further surgery is required to treat his symptoms.[54] Dr Parkinson further adds that given that the applicant “was asymptomatic prior to his workplace injury and his young age, it appears the workplace injury caused the pathology and subsequent clinical manifestation”.[55] He concludes that the applicant’s employment is the main contributing factor to his cervical spine pathology and surgery is “reasonable and necessary”.[56]
[54] ARD, p 65.
[55] ARD, p 65.
[56] ARD, p 65.
Dr Damian Ryan
In evidence are several reports from treating orthopaedic and hand surgeon, Dr Damian Ryan. These reports largely concern treatment of the applicant’s right hand, and the laceration sustained on 14 October 2022.
In the report of 12 February 2024, Dr Ryan records that the applicant returned for a review of problems with his right hand. Dr Ryan notes that the applicant has a number of other problems with regard to his shoulder and cervical spine with “the suggestion that changes of the level cervical spine have been associated with some numbness in both hands”.[57] He adds that the “failure of carpal tunnel decompression to relieve [the applicant’s] hand symptoms is further evidence of the problem is more proximal around the cervical spine”.[58]
[57] Reply, p 229.
[58] Reply, p 229.
A/Prof Tan
In evidence are several reports from A/Prof Simon Tan, who treated the applicant for his right shoulder and elbow problems. In a report, dated 16 January 2023, A/Prof Tan records a diagnosis of “cervical spondylosis”. He also records that he suggested the applicant see Dr Angus Bathgate, sports and exercise medicine physician, for an opinion regarding the severity of his “elbow and cervical spine injuries”.[59]
[59] Reply, p 436.
Dr Angus Bathgate
In evidence is a report from Dr Bathgate, dated 31 January 2023. Dr Bathgate records that the applicant has now begun to note right shoulder, neck and right elbow pain. He notes that the “neck and elbow pain did pre-date the injury though has certainly been aggravated by his injury”.[60] He notes that there is “no definitive radicular referral of pain into the right arm” but pins and needles into the right middle and right ring finger.[61] He also records the applicant exhibits restricted extension of his cervical spine.[62] He records that there is restricted lateral flexion to the right, non-specific central and paravertebral tenderness about the mid cervical spine region.[63]
[60] Reply, p 437.
[61] Reply, p 437.
[62] Reply, p 437.
[63] Reply, p 437.
A/Prof Stacey Jankelowitz
In a report to Dr Parkinson, dated 29 July 2023, A/Prof Stacey Jankelowitz, consultant neurologist, records a history of the subject incident. A/Prof Jankelowitz records that on 14 October 2022 the applicant was on a roof with a safety wire when he “tripped over a string line and fell in a ‘superman position’ …and a pilon [sic] went through his right hand”.[64]
[64] ARD, p 63.
A/Prof Jankelowitz notes Dr Parkinson’s concern as to whether the applicant “has bilateral cervical radiculopathy and whether he needs surgery on both sides or only the left”. She adds that “I no [sic, note] his recent MRI of the cervical spine is reported as showing bilateral C5/6 and C6/7 foraminal stenosis”.
A/Prof Jankelowitz also records that she performed a needle EMG to try and determine if the applicant had bilateral radiculopathy. She notes that there was some spontaneous activity and evidence of denervation with reinnervation in his brachioradialis and extensor carpi radialis muscles bilaterally. On further questioning the applicant “thinks he may have hit his head when he had the accident”. [65]
[65] ARD, p 63.
Dr Gehr
In evidence is a report of Dr Gehr, orthopaedic surgeon qualified by the applicant, dated 16 June 2023. In his report, Dr Gehr records a detailed summary of the medical reports, clinical notes and radiological evidence. He then provides a history of the incident, that on 14 October 2022 the applicant “tripped over a sting line that was used to measure and align the ridgeline”.[66] Dr Gehr adds that the applicant “tripped forward and sustained significant injuries to his right hand, neck, right shoulder, and right elbow”. [67]
[66] ARD, p 36.
[67] ARD, p 36.
Dr Gehr records the applicant’s complaint of pain over the “dorsal cervical spine” with “pins and needles with numbness to both hands”.[68] He adds that on a scale of 0 (no pain) to 10 (very severe) the pain in the “neck averages 7”.[69] He also records that the applicant has an “injury to his cervical spine and he has persisting pain in that region on examination”.[70] He states that on examination he found evidence of “cervical spine guarding, dysmetria, and decreased handgrip strength on the right side”. He notes the pre-existing history of the cervical spine pain just before the accident which he states is “described as nickeling, not interfering with his ability to perform his work”.[71] He provides several diagnoses, including, “[c]ervical spine pain, with guarding, dysmetria, and reduced handgrip strength on right side, aggravated”.[72]
[68] ARD, p 37.
[69] ARD, p 37.
[70] ARD, p 40.
[71] ARD, p 40.
[72] ARD, p 40.
In a supplementary report, dated 5 December 2023, Dr Gehr states that the “three-level disc arthroplasty at C4-5, C5-6, and C6-7 is reasonably necessary as a result of the subject accident”.[73] He records that the surgery is appropriate for the underlying pathology as described by the applicant’s treating neurosurgeon and the treatment will potentially be 60% to 80% effective.[74] He adds that the treatment is cost beneficial and that the treatment is generally accepted by orthopaedic and neurosurgical profession but he would “suggest a second opinion before proceeding”.[75]
[73] ARD, p 59.
[74] ARD, p 59.
[75] ARD, p 60.
Dr Haig
In evidence is a report of Dr Ron Haig, orthopaedic surgeon qualified by the respondent, dated 9 March 2023. Dr Haig records that he examined the applicant on 6 March 2023. He records a history that the applicant reports that on 14 October 2022 when he was holding a sharp piece of metal in his right hand while walking on the roof and tripped and fell forward with his right arm outstretched. He adds that “he landed on his front but struck his right shoulder and head on a beam…he had sustained a laceration [on his right hand]”.[76]
[76] Reply, p 175.
Dr Haig provides details of the applicant’s past medical history but does not include any reference to the cervical spine. On examination, Dr Haig records that he felt the applicant “[e]xhibited features of abnormal pain behaviour”.[77]
[77] Reply, p 177.
Dr Haig records that he believes that “[t]here are other factors impacting on [the applicant’s] current presentation. I do believe he exhibits features of abnormal pain behaviour”. [78]
[78] Reply, p 178.
Dr Haig records that the applicant had “no complaints regarding his cervical spine other than some pain that he attributed to wearing the sling”.[79] He adds that the applicant had no complaints “today regarding the right wrist, right elbow, cervical spine or lumbar spine or right hip or knees”.[80]
[79] Reply, p 179.
[80] Reply, p 181.
The report of Dr Haig otherwise does not address the cervical spine.
In a supplementary report dated 23 October 2023, Dr Haig provides an opinion on the applicant’s condition in respect of his right shoulder injury. It does not address the cervical spine.
Radiological evidence
In evidence are several radiological reports, in respect of various body parts.
In the MRI cervical spine report, of Dr Julie Schatz of Alfred Imagining, dated
26 September 2022, the clinical history is recorded. It records “[a]cute cervical pain and right upper limb pain 3/4 paraesthesia, cervical radiculopathy. Also acute right shoulder pain”.[81] It concludes that there are shallow broad-based posterior disc bulges at C3/4, C4/5 and C5/6.[82] It also concludes that there is moderate foraminal narrowing bilaterally at C4/5 and C5/6 and on the right at C3/4, potentially crowding the exiting nerve roots at those levels but there is no direct foraminal disc herniation or nerve root compression.[83][81] AALD – 2, p 14.
[82] AALD – 2, p 14.
[83] AALD – 2, p 14.
In an MRI cervical spine report, of Dr Emily Patrick of Alfred Imagining, dated
8 November 2022, the clinical history is recorded. It records right shoulder pain, rotator cuff tear, cervical pain and right upper limb pain, paraesthesia second and third digits.[84] It notes that there is a comparison made with the previous MRI dated 23 September 2022 (which was the service date of the imagining). It records that at C4/5 a broad-based posterior disc bulge and uncovertebral osteophytes, significant canal stenosis and moderate bilateral foraminal narrowing. It also notes that at C5/6 a posterior disc bulge and uncovertebral osteophytes, no significant canal stenosis, and moderate bilateral foraminal narrowing. It also records that at C6/7 there is no significant disc bulge, small uncovertebral osteophytes and mild foraminal narrowing, slightly worse on left. It concludes that there are spondylotic changes, with disc dehydration, disc bulges and endplate osteophytes.[85] It further adds that there is multilevel foraminal narrowing, “most marked at C4/5 and C5/6, with potential irritation of the exiting C5 and C6 nerve roots”.[86][84] AALD – 2, p 15.
[85] AALD – 2, p 15.
[86] AALD – 2, p 15.
In an MRI Cervical Spine report, of Dr Mark Wilkinson of Alfred Imagining, dated
8 June 2023, the clinical history is recorded. It records that the applicant had “[a]cute on chronic neck pain with bilateral radiation down arms”.[87] It also records that a comparison was made to the previous MRI Cervical Spine dated 8 November 2022. It records at C5/6 no significant spinal canal narrowing and moderately severe bilateral foraminal narrowing secondary to uncovertebral degenerative change. It further records at C6/7 no disc protrusion or spinal canal narrowing. There is mild right foraminal narrowing and moderately severe left foraminal narrowing secondary to uncovertebral degenerative change. It concludes that there are multilevel cervical spine degenerative changes and “[n]o significant progression compared to the previous study”. [88] It also concludes that there is multilevel exit foraminal narrowing, “most pronounced bilaterally at C4/5 and C5/6, and on the left at C6/7, with potential exiting nerve root impingement at these levels”.[89][87] AALD – 2, p 20.
[88] AALD – 2, p 20.
[89] AALD – 2, p 20.
SUBMISSIONS
The applicant and respondent provided oral submissions during the hearing which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.
Applicant’s submissions
The applicant seeks a finding that the applicant suffered an injury to his cervical spine on 14 October 2022 and that the surgery in the form of a C4/5, C5/6 and C6/7 disc arthroplasty is reasonably necessary as a result of the injury.
The applicant submits that he sustained a severe injury to his right hand and multiple injuries to various body parts, including his neck. The applicant refers to his statement noting the mechanism of injury, namely, a direct injury to the cervical spine as a result of the fall and the trauma to which his body was subjected.
The applicant concedes that he had a pre-existing neck condition, and addresses the evidence of the nature of neck complaints prior to the injury on 14 October 2022. The applicant submits that it would be readily apparent that there has been a “significant increase in symptoms in the wake of the injury”. The applicant refers to Dr Tringali’s clinical notes recording complaints of cervical pain, two years prior to the subject injury and that these complaints are about two months apart. However, after the injury almost every attendance records complaints of cervical pain.
The applicant refers to the certificates of capacity and submits that the injury resulted in a multitude of injuries. He then refers to Dr Tringali’s report of 7 November 2022, and submits that this is an early contemporaneous record of the treating doctor’s understanding of the impact of the traumatic event on a range of body parts. He notes that Dr Tringali records his pre-existing conditions, including in the cervical spine, but he continued to work prior to the injury with repetitive use of the upper limbs as a carpenter. The applicant submits that if he had a “significantly incapacitating neck condition he would not have been able to work as a carpenter as he continued to do until the 14 October 2022”. This, the applicant suggests, indicates that the complaints Dr Tringali was noting in the period prior to the injury “indicates a manifestation of pain but not incapacity, not incapacitating pain, and certainly not pain that warranted the kind of surgery which is now proposed”.
The applicant submits that there were “no reports of pain radiating down the right upper limb prior to the subject injury”. The applicant adds that the “neck symptoms [were] manifesting themselves”.
The applicant then refers to the radiological evidence. The applicant contends that prior to the subject injury there is a reference to the pathology at C3/4 and this is not relevant as the surgery is sought in respect of levels from C4/C7. In respect of the September 2022 report, the applicant submits the pathology recorded was “not incapacitating and was permitting the applicant to engage in arduous manual activity, which obviously would have been taking a significant toll on his neck but…was not rendering him unfit for work”. However, there was “clearly a significant increase” in his symptoms and material change in pathology.
In respect of the November 2022 report, the applicant submits that three and a half weeks after the injury there is a broad-based posterior bulge and significant central canal stenosis and cord compression at C4/5. The applicant adds that there was no significant canal stenosis at C5/6 in the September 2022 report. The applicant further adds that at C6/7 there are small incontrovertible osteophytes and mild foraminal narrowing, slightly worse on the left.
In respect of the June 2023 report, the applicant submits that there is moderately severe right foraminal narrowing at C4/5. This is in contrast to September 2022, where there was no reference to the condition being severe and it was described as moderate. It is also crucial that by June 2023 there was mild right foraminal narrowing and moderately severe foraminal narrowing at C6/7. The applicant notes that the report records “no significant progression compared to the previous study”, but the characterisation of the condition of the spine at C4/5 and C5/6 as being severe is distinct from the September 2022 report. There are also problems noted at C6/7 which were not there previously. The imagining makes it perfectly clear, the applicant submits, that this is not the same condition pre-injury.
The applicant then refers to the report of Dr Gehr. The applicant submits that Dr Gehr took a history of the traumatic event on the neck consistent with Dr Tringali. Dr Gehr records that the pain in the neck as averaging 7, which is plainly quite distinct from the pain he was experiencing previously. He also submits that Dr Gehr was aware of the pre-existing complaints of the neck, which was not interfering with his ability to carry out full duties of his employment. He further submits that Dr Gehr records that his condition has been “significantly aggravated”. He records that the applicant has persisting pain in the cervical spine, with guarding, dysmetria and decreased grip strength on the right side. There was no report of decreased hand grip strength prior to the injury. The applicant adds that there is “no countervailing evidence from the respondent” that there has not been “a significant aggravation to the applicant’s cervical spine”.
The applicant refers to Dr Gehr’s supplementary report, which addresses the question of medical treatment. The applicant asserts that there is no countervailing opinion to suggest that the treatment of three level disc arthroplasty at C4/5, C5/6 and C6/7 is not reasonably necessary as a result of the subject incident.
The applicant refers to the report of Dr Parkinson, dated 31 October 2023. He asserts that Dr Parkinson provides an opinion that the surgery is appropriate and reasonably necessary as a result of the subject incident. He adds that Dr Parkinson is a treating surgeon and has a professional responsibility for the care of his patient, has seen the applicant on a number of occasions, and his opinion should be given greater weight than the views of the medical legal examiner.
The applicant then refers to the report of A/Prof Jankelowitz. He submits that after a careful assessment of the applicant’s pathology Dr Parkinson sought further input from a treating neurologist A/Prof Jankelowitz and on that information concluded that surgery is reasonably necessary.
The applicant adds that there is no evidence of bilateral radiculopathy prior to the subject injury, and so it follows as a matter of common sense that the surgery is reasonably necessary as a result of the subject injury.
The applicant then refers to the evidence of Dr Massoud and his report of 13 July 2023, which records the applicant dropping things suggesting nerve dysfunction. There was no history of dropping things before the subject injury and suggests that his cervical radiculopathy has been aggravated by the fall. The applicant submits that there was no competing source of aggravation, and it is open to making a finding of injury pursuant to s 4(a) and s 4(b)(ii) of the 1987 Act.
The applicant then refers to the evidence of Dr Haig. The applicant submits that I should not give any weight to Dr Haig’s first report as it has a prejudicial intent. In this regard, the applicant refers to Dr Haig’s comments that the applicant exhibits abnormal pain behaviour. The applicant also notes that Dr Haig did not record any complaint of pain in the cervical spine, which is against the medical evidence of cervical spine complaints which existed at the time of examination. The applicant then refers to the clinical notes of cervical pain complaint in 2023, in particular, notes that the applicant attended on Dr Tringali complaining of cervical spine pain on 6 March 2023 the same date of Dr Haig’s examination. In respect of Dr Haig’s supplementary report, the applicant submits that there is no assessment of the neck or need for surgery. The applicant asserts that Dr Haig has a fundamental misunderstanding of his medical condition.
The applicant refers to the comments recorded in Dr Ryan’s report of 12 February 2024. The reference to problems in the cervical spine is consistent with the treating records.
The applicant then refers to the report of A/Prof Tan, dated 16 January 2023, where he records a diagnosis of cervical spondylosis and referral for opinion of cervical spine injuries. In this regard, the applicant submits that the surgeon accepts that the “neck is implicated in the injury”.
Lastly, the applicant refers to the report of Dr Bathgate dated 31 January 2023. He notes this history and findings on examination regarding the neck and radular pain. The applicant adds that the pathology becomes a lot clearer when A/Prof Jankelowitz undertakes neurological assessments.
Respondent’s submissions
The respondent submits that I need to find “what is the actual injury the applicant has suffered and what is the mechanism of the injury the applicant says he suffered”. The respondent refers to the description of injury in the Application to Resolve a Dispute and the applicant’s statement and asserts that there is no explanation of involvement of the cervical spine.
The respondent then refers to the report of Dr Tringali and asserts that the description of injury recorded is that the applicant fell and fell heavily on his right side, causing a laceration to his right hand. It also records the applicant’s complaint of various other body parts, including cervical pain with radiation down the right upper limb. The respondent adds that there is an “injury that is described as a fall, and this is described by the applicant very clearly in his statement as a fall on his right hand on his right hand side”. However, there is a suggestion that there is some other involvement of or other mechanism of injury involving the neck. In this regard, the respondent refers to A/Prof Jankelowitz’s report that records that the applicant “thinks he may have hit his head when he had the accident” and Dr Massoud who refers to the incident as a “whiplash type injury” and on 13 July 2023 records a “description of a hit to the applicant’s head”.
The respondent asserts that there are alternative descriptions of the mechanism of injury and this seems to be the basis on which the applicant’s treating general practitioner suggests there is an increase in or basis for aggravation of the cervical spine. However, there is no evidence in the applicant’s own statement that there was a head injury or that he hit his head in the process of this fall. Further, there is no suggestion that he hit his head or the hit to his head was the cause of the neck injury in the description of injury in the pleadings.
The respondent submits that Dr Gehr has not provided any opinion as to what the actual injury is to the applicant’s cervical spine. He does not explain what that injury is or explain how that injury occurred. All Dr Gehr provides, so the respondent submits, is that there is cervical spine pain with guarding dysmetria and reduced hand grip strength on the right side, which aggravated his cervical spine. The respondent adds that “pain is not a diagnosis” and is only a symptom.
The respondent contends that the clinical notes record on 14 September 2022 that the applicant had cervical spine pain, with right upper limb pain radiation and on
28 September 2022 cervical spine pain left upper limb pain and paraesthesia of left hand. Immediately prior to the applicant’s accident he complains of cervical pain radiating down bilaterally, first on the right and then the left which continues to 6 October 2022.The respondent accepts that there seems to be a different description of the pathology overtime, particularly with reference to C6/C7 in the cervical spine. However, each radiology report was conducted by a different doctor, and each provide a slightly different description of what occurs at each of the levels of the cervical spine. The latest report of 23 June 2023 specifically says there is no significant progression compared to the previous study, but the reports are silent about whether or not there is a progression. Further, Dr Gehr is silent about the differences in the MRI reports and there is no indication that either Dr Gehr or Dr Haig actually saw the films of the MRIs as opposed to the reports. Therefore, it is very difficult to conclude that there is a significant difference between the September 2022 report and November 2022 report, when no doctor has seen the scans.
The respondent submits that the applicant has not discharged his onus to establish what the actual injury is that he suffered, what the mechanism of the injury is and whether or not the fall was causative of his current complaints.
The respondent also submits that the applicant has not established that the surgery is reasonably necessary as a result of the fall. Dr Gehr has not explained the actual need for surgery is related to the cervical spine injury that he suffered as a result of the fall.
Applicant’s submissions in reply
The applicant submits that there is no dispute as to the fact that he fell and tripped on a steel roof, holding a piece of sharp metal, causing him to fall heavily mainly on the right side of his body resulting in multiple physical injuries. The treating doctor recorded these injuries on 7 November 2022, and a few weeks afterward the applicant describes the circumstances of the fall again. The applicant asserts that his description of injury in his statements is not decisive.
The applicant further asserts that it cannot be suggested that there is a material inconsistency between his statement and what the doctors say, as the applicant has maintained that his neck symptoms got worse, and the chronology illustrates that clearly. The applicant’s increase of pain is unchallenged. The applicant contends that Dr Massoud’s opinion has proceeded on the basis that there was a level of preexisting radiculopathy. The applicant also submits that the complaints of symptoms in the cervical spine pre-injury “were made one a month” but from the date of injury they “are unremitting”.
The applicant refers to Dr Gehr’s and Dr Tringali’s history of the injury. He contends that Dr Gehr associates himself with what Dr Tringali said in respect of the description of injury and appreciates the pre-existing conditions. On examination Dr Gehr records the effects, being guarding, dysmetria and decreased hand strength. These, the applicant asserts, are “pathological changes as a result of the subject injury”.
The applicant then refers to the radiological evidence and states there is no record of anything at C6/7 prior to the injury, only post-injury, and this is one of the levels to be the subject of the surgery. He adds that Dr Wilkinson, who was the radiologist who prepared the report of 8 June 2023, specifically considered the report of 8 November 2022 and said there was no significant progression. However, Dr Wilkinson records that the condition at C4/5 and C5/6 is “severe” and this shows the distinction between the two reports post injury and pre-injury. This explains the change in the applicant’s condition and the need for surgery as a result.
The applicant further adds that the treating surgeon, relying on the neurologist, and the report of Dr Gehr support an order for the respondent to pay for the costs of the proposed surgery.
FINDINGS AND REASONS
Injury – relevant law
The applicant bears the onus of proof, to establish his case under ss 4 and 60 of the 1987 Act, on the balance of probabilities.[90] Before determining whether the proposed surgery is reasonably necessary as a result of the injury under s 60 of the 1987 Act, I must determine whether the applicant suffered an injury simpliciter under s 4(a) of the 1987 Act or an aggravation of a disease under s 4(b)(ii) of the 1987 Act.
[90] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
It is accepted that the applicant had pre-existing pathology at his cervical spine, for which he was symptomatic prior to the subject incident. It is on this basis that the applicant asserts that his employment aggravated his underlying cervical spine condition.
While the applicant pleaded injury as both injury simpliciter under s 4(a) of the 1987 Act and a disease injury under s 4(b)(ii) of the 1987 Act, the applicant does not distinguish between these types of injuries in his submissions. The applicant focuses on the identification of a pathological change and increase in symptoms in the cervical spine to support a finding of injury. This is unfortunate as a personal injury (or “injury simpliciter”) under s 4(a) of the 1987 Act and a disease injury under s 4(b)(ii) of the 1987 Act are not mutually exclusive.
Section 4(a) of the 1987 Act defines “injury” as a personal injury arising out of or in the course of employment. There is no compensation payable under s 4(a) of the 1987 Act unless employment is a “substantial contributing factor” to the injury, within the meaning of that phrase under s 9A of the 1987 Act. It is well established that the phrase “substantial contributing factor” involves a causal connection between the employment concerned and the injury.[91] The causal connection must be “real and of substance”.[92]
[91] Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited NSWCA 324, [80]-[83] (per Allsop P, Beazley and McColl JA; [112]-[117] per Basten JA; [143] per Handley AJA).
[92] Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited NSWCA 324.
In Rail Services Australia v Dimovski,[93] Handley JA stated that where a frank incident aggravated an underlying degenerative condition, it could properly be regarded as injury simpliciter within s 4(a) of the 1987 Act. To establish a personal injury (or “injury simpliciter”) there must be evidence of an identifiable pathological change.[94] That the change is connected to an underlying disease process does not prevent the event from being a personal injury.[95]
[93] [2004] NSWCA 267.
[94] Castro v State Transit Authority (NSW) [2000] NSWCC 12; 19 NSWCCR 496; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; Military Rehabilitation and Compensation Commission v May [2016] HCA 19; Ky v Blue Leaf Food Group Pty Ltd [2016] NSWWCCPD 55.
[95] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; Rail Services Australia v Dimovski [2004] NSWCA 267.
Section 4(b) of the 1987 Act provides that “injury” includes a “disease injury”. Section 4(b)(ii) of the 1987 Act provides that a “disease injury” means the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease. Section 4(b) of the 1987 Act requires that employment be the “main contributing factor” to the aggravation of a disease. It is well accepted that the test of “main contributing factor” is one of causation which involves consideration of the evidence overall.[96] In Av v Aw,[97] Deputy President Snell said “in a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[98]
[96] AV v AW [2020] NSWWCCPD 9, [77]-[78].
[97] [2020] NSWWCCPD 9, [77]-[78].
[98] AV v AW [2020] NSWWCCPD 9, [77]-[78].
It is well accepted that an aggravation of a disease under s 4(b)(ii) of the 1987 Act “occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms”.[99] As Justice Windeyer said in Semlitch:
“[t]he question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[100]
[99]Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71, ([66] per Roche A/President); Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34, [7] (per Windeyer J).
[100] Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34, [9] (per Windeyer J).
Whether the applicant sustained an injury under s 4 of the 1987 Act to his cervical spine is a question of fact to be determined on the basis of the available evidence. Applying the above law and principles requires a careful analysis of the evidence and a commonsense evaluation of the causal chain.[101]
[101] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
For the reasons that follow, I am not satisfied that the applicant has suffered an identifiable pathological change in his cervical spine as a result of the subject incident. However, I am satisfied that the applicant’s symptoms in his cervical spine increased or became more worse as a result of employment.
In order to deal with the parties’ submissions, it is first useful to address the mechanism of injury.
Mechanism of injury
The applicant claims that he sustained an aggravation injury to his cervical spine as a result of the fall in the subject incident. However, the respondent submits, the actual mechanism of the fall and how it impacted the cervical spine is not adequately explained on the evidence.
The evidence demonstrates that the mechanism of injury during the subject incident and the cause of pain in the cervical spine is varied. The Application to Resolve a Dispute describes the subject incident consistent with the applicant’s statement evidence. The applicant states that he tripped forward with his right arm stretched out. Dr Tringali, on the day after the incident, in clinical notes records that the applicant tripped landing on his right side lacerating his right hand. In a certificate of capacity, dated 15 October 2022, Dr Tringali also records that the applicant fell and tripped “heavily mainly on the right side of the body causing multiple physical injuries”. Dr Haig, on 9 March 2023, records that the applicant tripped and fell forward with his right arm outstretched and “landed on his front but struck his right shoulder and head”. Dr Gehr, on 16 June 2023, records that the applicant tripped forward and sustained injuries. Dr Massoud, on 13 July 2023, records a history that the applicant fell and his “head impacted the ground…resulting in a whiplash-type injury.” A/Prof Jankelowitz, on 29 July 2023, records a history that the applicant tripped and fell in a “superman position” and that he “may have hit his head when he had the accident”. This evidence, with the exception of Dr Haig’s evidence, also records complaint of pain in the cervical spine as a result of the subject incident.
It is difficult to find the mechanism of the injury to the cervical spine in circumstances where there are varying descriptions of what occurred during the subject incident. The main element of the history which appears strikingly different relates to the applicant hitting his head on the ground during the subject incident. Dr Tringali provides a contemporaneous description of the subject injury in the clinical notes and certificate of capacity dated
15 October 2022 but does not refer any impact to the applicant’s head. This is consistent with the evidence of the applicant and Dr Gehr. However, I note the respondent’s submissions and the histories the applicant provided to Dr Massoud, Dr Haig, and A/Prof Jankelowitz, which are difficult to reconcile with the contemporaneous evidence. The substance of the histories recorded in the evidence regarding the subject incident and mechanism of injury are otherwise fairly similar.I accept the respondent’s submissions that there appear to be alternative descriptions of the mechanism of injury. I also accept that the applicant’s statements do not address the involvement of the head, despite the first statement (dated 17 July 2023) having been prepared the same month Dr Massoud and A/Prof Jankelowitz prepared their reports and recorded a history that the applicant hit his head during the subject incident. However, I do not consider that this is fatal.
The overwhelming evidence is that the applicant sustained a fall on his right side causing a severe laceration to his right hand during the subject incident, and that he experienced pain to several body parts including his neck. While Dr Gehr has not provided a detailed explanation of the mechanism of injury to the cervical spine in the history recorded of the subject incident, the mechanism of injury recorded is consistent with the contemporaneous evidence of Dr Tringali (at [49] above) and the applicant’s statement evidence that the applicant injured his neck. In particular, on 15 October 2022, Dr Tringali records a description of the subject incident and notes “[c]ervical pain R>L”. I am satisfied that this evidence sufficiently identifies the subject incident and mechanism of injury to the cervical spine.
Pathology
Radiological evidence
The applicant asserts that there is a material change in pathology, which is demonstrated by reference to the radiological evidence. I accept the applicant’s submissions, in-part.
The second cervical spine MRI report, dated 8 November 2022, was conducted approximately three weeks after the subject incident. Of relevance, the report records disc bulges and moderate foraminal narrowing at C4/5, C5/6 levels which is a finding consistent with the previous MRI of September 2022. The report also records that there was a comparison with the previous MRI dated 23 September 2022 (which is the service date of the imagining). I infer that the comparison was conducted with the actual imagining of the previous scan, which is general practice of radiologists and noting that the MRI scans would have likely been accessible given that the scans were conducted at the same imagining centre. This report is a critical piece of evidence which demonstrates that there is no pathological change in C4/5 and C5/6 levels reported on MRI following the subject incident. I note the report also records findings of no significant disc bulge, small uncovertebral osteophytes and mild foraminal narrowing at C6/7 levels.
It is not until June 2023, almost seven months later, that the applicant undergoes a further MRI of the cervical spine at the same imaging centre. This report specifically records no significant progression from the previous study of November 2022. I do not accept the applicant’s submission that the change in terminology used of “moderately severe” right foraminal narrowing and “severe” left foraminal narrowing at C5/6 in the June 2023 report, when compared to the November 2022 report which records moderate bilateral foraminal narrowing, as determinative of a change in pathology or even an increase in symptoms as a result of the subject incident for the following reasons.
Firstly, the June 2023 report concludes that there is no significant progression compared to the previous MRI. Secondly, the November 2022 and September 2022 report use the same terminology of “moderate” when referring to bilateral foraminal narrowing at C4/5 and C5/6 levels which confirms no progression in C4/5 and C5/6 levels following the subject incident. Thirdly, I have not been taken to any evidence that explains or interprets the differences between the terminology used or suggests it is demonstrative of a change in pathology or symptomatology. Fourthly, even if the change in terminology represented a change in symptoms in the cervical spine (which I do not accept) there is no evidence that indicates how this impacted the applicant or that the change was caused by the subject incident which occurred almost eight months prior.
I accept the applicant’s submission that there is evidence of a change in pathology at C6/7 levels. In this regard, there is evidence of small uncovertebral osteophytes and mild foraminal narrowing at C6/7 in the November 2022 report which was not present in the September 2022 report. However, there is no evidence that interprets these findings and concludes that the change is a result of the subject incident. While I accept this change in pathology is relevant, I am unable to draw an inference that that change as described in the radiological evidence was a result of the subject injury or indeed resulted in any change in symptoms in the absence of evidence to support.[102]
[102] Sabanayagam v St George Bank Ltd [2016] NSWCA 145, [119] (per Sackville AJA); Shao Wen Zheng v Guo Yong Yang & Ors [2008] NSWWCCPD 144, [81].
It is not the role of the Commission to determine whether there has been a change in the pathology by interpreting the available radiological evidence. This is the role of an expert medical practitioner. The role of the Commission is to evaluate expert medical opinions on causation and make findings of fact. I am unable to accept the applicant’s assertion that there has been a significant change in pathology and symptomatology between the September 2022 MRI and the radiological evidence that followed and that this is a result of the subject incident. The medical evidence does not address the asserted change. The absence of this evidence is critical in circumstances where the applicant had pre-existing symptoms in his cervical spine.
Bilateral paraesthesia
I do not accept the applicant’s submission that there was no evidence of bilateral paraesthesia or pain radiating down the upper limbs prior to the subject injury.
I note that the applicant’s statement evidence records that he did not experience pins and needles before the subject incident and also Dr Parkinson’s report of 31 October 2023 where he records a history that the applicant was “asymptomatic prior to his workplace injury”. However, this is inconsistent with the objective contemporaneous evidence of Dr Tringali and MRI report of 26 September 2022 which record on at least four occasions prior to the subject incident paraesthesia in the upper limbs and symptoms in the cervical spine.
Grip strength
The applicant asserts that the evidence of loss of grip strength in the right hand is indicative of a pathological change. The only evidence that references a decrease in handgrip strength on the right side is found in the reports of Dr Massoud, dated 13 July 2023, and Dr Gehr, dated 16 June 2022.
Dr Massoud records that the subject incident caused an aggravation of the applicant’s degenerative cervical spine. He records complaint of loss of grip strength and that the applicant is now dropping objects. The applicant submits, and I accept, that this is suggestive of nerve dysfunction. However, this report is prepared without the benefit of the applicant’s previous medical records. It is also prepared on the basis of a history that the applicant sustained a “whiplash-type injury” when he fell and his “head impacted the ground”. The history recorded of the mechanism of injury involving the head is inconsistent with the applicant’s case and the contemporaneous clinical notes of Dr Tringali. In view of this, I am not satisfied that the history recorded by Dr Massoud represents a fair climate on which that opinion can be made.[103] It follows, for the above reasons, that this evidence must be treated with caution.[104]
[103] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505, 509-510; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11, [82] (per Beazley JA).
[104] Mason v Demasi [2009] NSWCA 227, [2] (per Basten JA).
I note that Dr Gehr also records loss of grip strength. However, he does not explain whether the decreased handgrip strength on the right side is related to the cervical spine or the serious laceration of the right hand.
Accordingly, I do not accept that the applicant’s loss of grip strength is as pathological change causative of the subject incident.
Dr Gehr
The applicant relies on the expert opinion of Dr Gehr. Dr Gehr records a history of the incident that aligns with Dr Tringali and the applicant’s statement evidence. Dr Gehr notes the applicant has cervical spine pain, with guarding, dysmetria, and reduced handgrip strength on right side. He provides a diagnosis that these symptoms of the cervical spine are “aggravated” by the subject incident, but as the respondent submits this is without any adequate explanation as to how he arrived at that conclusion. Indeed, he does not explain how those symptoms relate to the subject injury or how they differ from the applicant’s pre-existing symptoms in the cervical spine.
Dr Gehr refers to the radiological evidence. However, Dr Gehr does not address the radiological evidence of the cervical spine in his diagnosis of injury. Nor does he explain how the cervical spine condition has been specifically aggravated by the subject incident and to what extent, with regard to the radiological evidence and pre-existing symptoms.
Dr Gehr acknowledges the applicant’s pre-existing symptoms in his cervical spine and describes this as “nickeling” and not “interfering with [the applicant’s] ability to perform his work”. Despite being aware of pre-existing symptoms, Dr Gehr does not explain the change in symptoms in the cervical spine (if any) or how any change has aggravated the applicant’s underlying condition and impacts the applicant. While Dr Gehr records the applicant experiences pain in the cervical spine on a scale of 7 out of 10 this is not contrasted to his symptoms in the cervical spine pre-injury.
It follows that I am not satisfied that Dr Gehr has provided an adequate explanation or adequately explained his reasoning process on causation to enable a proper evaluation of his opinion expressed.[105] Accordingly, I am unable to give much weight to Dr Gehr’s findings that the applicant sustained an aggravation of his cervical spine as a result of the subject incident.
[105] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11, [77] (per Beazley JA).
Frequency of attendances on Dr Tringali and management of pre-existing symptoms
I accept the applicant’s purported submission that the increased frequency of attendances on Dr Tringali following the subject incident was for reason of the cervical spine or an increase in symptoms of the cervical spine following the subject incident.
Dr Tringali
At least two years prior to the incident, the applicant complains about “cervical pain” to Dr Tringali. The complaints, merely described as “cervical pain”, are recorded at almost every attendance. In 2020 the complaints are generally between two and three weeks apart, and from 28 January 2021 until 28 May 2021 about two months apart. There is then a large period of no complaint of cervical spine pain from June 2021 until February 2022, where the complaints of cervical spine pain, in the same terms, are then again recorded at least monthly. It is not until 3 September 2022 that the record of complaints of cervical spine pain change.
From 3 September 2022, the applicant complains of cervical pain and right upper limb pain paraesthesia in his 3rd and 4th digits. This instigated a referral for an MRI scan of the cervical spine and an MRI undertaken on 23 September 2022. The applicant continues to suffer cervical spine pain with paraesthesia in the right upper limb on 14 September 2022 and then in the left upper limb on 28 September 2022.
The last complaint of cervical spine pain before the subject incident was on 6 October 2022, where it is recorded that the applicant had “cervical pain left upper limb pain paraesthesia left hand”. The applicant then attended on Dr Tringali for a migraine on 11 October 2022.
On 15 October 2022, Dr Tringali records the subject incident noting pain to several body parts, including the cervical spine. During the following two months, the applicant attends on Dr Tringali on approximately 17 occasions in which he complains of several body parts including the “cervical pain”.
Consideration
Firstly, the frequency of the attendances on Dr Tringali increased significantly following the subject incident (see [22]-[55] above). While the applicant was seeking treatment for a multitude of symptoms, including treatment for a serious laceration to his right hand for which he underwent surgery in 2022 and right shoulder surgery in early 2023, the clinical entries consistently record “cervical pain” and paraesthesia present only on the right.
Secondly, the contemporaneous clinical evidence must be read with the totality of the evidence regarding the applicant’s management of his pre-existing symptoms in the cervical spine. In a report from Dr Tringali, dated 7 November 2022, approximately three weeks after the subject incident, he records that the applicant’s pre-existing injuries were stable. Dr Tringali notes that the applicant was working as a carpenter prior to the subject incident and that he managed his cervical pain with analgesic and anti-inflammatory medication. Having noted the pre-existing injuries, Dr Tringali states that the applicant developed acute pain in his cervical region with radiated pain down the right upper limb following the fall during the subject incident ([49]-[51] above). It is on this background of events and symptoms that, Dr Tringali referred the applicant for a further MRI of the cervical spine, which was undertaken and reported on 8 November 2022.
Thirdly, in the applicant’s statement evidence, the applicant records that the pain in his cervical spine increased drastically following the subject incident. The applicant also describes the level of pain to fluctuate between a nine or ten out of ten in severity. This is consistent with the evidence of Dr Gehr.
Fourthly, the evidence, as the applicant submits, indicates that he continued to work in a manual job despite having symptoms and making complaints of cervical pain. Dr Gehr describes the pre-existing pain in the applicant’s cervical spine as “nickeling, and not interfering with his ability to perform his work” (see [71] above).
This evidence demonstrates, on the balance of probabilities, that the applicant’s increased attendances on Dr Tringali were for reason of an increase or worsening of symptoms in the cervical spine (amongst other symptoms) as a result of the subject incident, as opposed to the natural progression of the pre-existing pathology.
Injury
Injury simpliciter
For the reasons set out above, I am not satisfied that the applicant has demonstrated an identifiable pathological change in the cervical spine under s 4(a) of the 1987 Act. On the available evidence, I am not satisfied that the trauma of the subject incident has resulted in an identifiable pathological change.[106] As a result, I do not need to determine whether employment was a substantial contributing factor to the alleged injury, under s 9A of the 1987 Act.
[106] Ky v Blue Leaf Food Group Pty Ltd [2016] NSWWCCPD 55.
It follows that the applicant has failed, on the balance of probabilities, to discharge his onus of proof under s 4(a) of the 1987 Act.[107]
[107] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
Aggravation of a disease injury
To establish a disease injury, under s 4(b)(ii) of the 1987 Act, the applicant is not required to establish a change in pathology. As discussed above, the applicant need only establish that his symptoms in his cervical spine have been made worse by his employment with the respondent and those symptoms impacted him.[108] In other words, if the employment contributes to a worsening or intensifying of symptoms (including pain) in the cervical spine that that worsening or intensification constitutes an aggravation or exacerbation of the disease.
[108] Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34; Cant v Catholic Schools Office (2000) 20 NSWCCR 88.
The overwhelming evidence indicates that the subject incident increased the applicant’s cervical spine pain and the effects on the applicant were made worse. This is supported by the applicant’s statement evidence, the contemporaneous evidence of Dr Tringali, and the histories of Dr Gehr and Dr Massoud, which I have addressed above. It is also well accepted that evidence in a medical history is evidence of fact.[109]
[109] Guthrie v Spence [2009] NSWCA 36, [75].
The evidence also indicates that the subject incident was the main contributing factor to the aggravation or exacerbation of the disease:
(a) Dr Tringali records that the applicant developed acute pain in his cervical spine following the subject incident. He also records that the applicant’s pre-existing symptoms in the cervical spine were stable prior to the subject incident. While Dr Tringali does not use the terms “main contributing factor” this does not preclude me from accepting that evidence in support of test of main contributing factor under s 4(b)(ii) of the 1987 Act;[110]
(b) Dr Massoud records that the applicant’s fall in the subject incident “resulted in an aggravation of his R shoulder pain and cervicogenic pains with radiculopathy”. He also records that the applicant has “cervicogenic neck pains with bilateral radiculopathy”. Dr Massoud adds that the applicant’s employment is the main contributing factor to the aggravation of his underlying cervical spine degenerative disease. I also note my findings above regarding Dr Massoud’s evidence;
(c) Dr Parkinson records that the subject incident was the “precipitant for his [the applicant’s] symptoms”. He adds that the applicant’s employment was the “main contributing factor” to his cervical spine pathology and corresponding clinical findings. Although, I note my findings on pathology above and the history that the applicant was asymptomatic prior to the subject incident;
(d) Dr Gehr records that the applicant’s cervical spine pain “with guarding, dysmetria, and reduced handgrip strength on right side, aggravated”. Dr Gehr also records that the applicant’s employment was the main contributing factor to the development of those aggravations. I also note my findings above regarding
Dr Gehr’s evidence, and(e) there were no other concurrent causes of the aggravation or exacerbation of the disease.
[110] State Transit Authority of NSW v El-Achi [2015] NSWWCCPD 71, [72]-[73].
I prefer the evidence of Dr Tringali, Dr Massoud and Dr Gehr regarding the applicant’s cervical spine over the evidence of Dr Haig. Dr Haig prepared a report on 9 March 2023, following examination on 6 March 2023, containing a history of the subject incident. Dr Haig does not refer to the cervical spine other than to mention some pain “attributed to wearing the sling”. However, as the applicant submits, Dr Haig’s evidence of cervical spine pain is inconsistent with the clinical notes of Dr Tringali on the same date of Dr Haig’s examination, that record complaint in the cervical spine with upper limb pain paraesthesia. Further, Dr Haig’s evidence on cervical spine pain is inconsistent with the overwhelming evidence of the existence and continued complaint of pain in the cervical spine.
Having regard to the totality of the evidence, I am satisfied that the applicant has discharged his onus of proof under s 4(b)(ii) of the 1987 Act. That is, the applicant’s work with the respondent made his condition in the cervical spine “more grave, more grievous or more serious in their effects” on him and employment with the respondent was the main contributing factor to the aggravation.[111]
[111] Federal Broom Co Pty Ltd v Semlitch [1994] HCA 34; 110 CLR 626.
Medical Treatment
The applicant claims that proposed C4/5, C5/6, C6/7 disc arthroplasty surgery is reasonably necessary as a result of the injury, pursuant to s 60 of the 1987 Act. The applicant relies on the report of Dr Parkinson who recommends the surgery as appropriate and reasonably necessary as a result of the subject incident.
Section 60 of the 1987 Act requires two questions to be answered in the affirmative. Firstly, whether the condition that is said to give rise to the need for treatment has arisen “as a result of” the injury. Secondly, whether the treatment is “reasonably necessary”. These are questions which involve matters of impression and degree, having regard to the available evidence.[112]
[112] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; Diab v NRMA Ltd [2014] NSWWCCPD 72.
The only available evidence suggests that surgery is reasonably necessary as a result of the subject incident. The respondent did not dispute this but contends the applicant has not discharged his onus under s 60 of the 1987 Act.
As a result of
Dr Parkinson states that the surgery is required to treat the applicant’s symptoms for which employment was the main contributing factor. Dr Gehr also states that surgery is reasonably necessary as a result of the subject incident. There is no contradictory evidence.
Even if the applicant’s pre-existing condition in the cervical spine formed part of the reason for surgery, which is not evident on the available evidence, this is not fatal to the applicant’s claim for compensation under s 60 of the 1987 Act. It is well accepted that the subject incident does not have to be the only, or even a substantial, cause of the need for the surgery before the cost of the treatment is recoverable under s 60 of the 1987 Act.[113]
[113] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, [57]-[58] (per Roche DP).
I am satisfied, having regard to the available evidence, that the subject incident materially contributed to the need for the proposed surgery. That is because the injury caused an increased in symptoms in the cervical spine which resulted in the request and recommendation that he undergo the proposed surgery.
Reasonably necessary
Dr Parkinson states that the proposed surgery is “reasonable and necessary”. Dr Gehr states that the proposed surgery is appropriate for the underlying pathology in the cervical spine, as described by Dr Parkinson. Dr Gehr adds that the surgery will potentially be 60-80% effective, is cost beneficial, and supported by the various orthopaedic and neurosurgical experts. There is no contradictory opinion.
The proposed surgery is supported by the applicant’s treating surgeon and an independent medical expert. It is recommended as an effective treatment to improve the applicant’s symptoms of pain in his cervical spine. The overwhelming evidence demonstrates that the proposed surgery is “reasonably necessary”, within the meaning of that phrase discussed in Diab v NRMA Ltd.[114]
[114] [2014] NSWWCCPD 72, [76]-[90] (per Roche DP).
It follows that C4/5, C5/6, C6/7 disc arthroplasty surgery is reasonably necessary as a result of the injury, pursuant to s 60 of the 1987 Act.
CONCLUSION
The applicant bears the onus to demonstrate on the balance of probabilities that an injury to the cervical spine occurred as a result of the subject incident. Having regard to the detailed history above regarding pathology of the cervical spine, I do not feel an actual persuasion that the applicant suffered an injury simpliciter pursuant to s 4(a) of the 1987 Act. However, I find that the applicant suffered an aggravation of his cervical spine condition on 14 October 2022, and that the employment with the respondent was the main contributing factor to the aggravation pursuant to s 4(b)(ii) of the 1987 Act.
The proposed C4/5, C5/6, C6/7 disc arthroplasty surgery, recommended by Dr Parkinson in his report of 23 August 2023, is reasonably necessary medical treatment as a result of the disease injury, pursuant to s 60 of the 1987 Act.
Accordingly, I make the orders set out above.
0
20
0