Shipley v Visscher Caravelle Australia Pty Ltd

[2024] NSWPIC 722

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Shipley v Visscher Caravelle Australia Pty Ltd [2024] NSWPIC 722

APPLICANT:

Troy Shipley

RESPONDENT:

Visscher Caravelle Australia Pty Limited

MEMBER:

Jill Toohey

DATE OF DECISION:

31 December 2024

CATCHWORDS:

WORKERS COMPENSATION - Claim for treatment of the applicant’s cervical spine; whether the applicant suffered injury to his cervical spine on 31 January 2020 and/or 2 July 2020; finding that the applicant suffered injury to his cervical spine on 31 January 2020; that injury resolved and has made no material contribution to the need for the proposed treatment; Held – award for the respondent in the claim for injury to the applicant’s cervical spine on 2 July 2020.

DETERMINATIONS MADE:

The Commission determines:

1.     The applicant suffered injury to his cervical spine by way of aggravation of a pre-existing condition on 31 January 2020 to which his employment was the main contributing factor.

2.     The injury on 31 January 2020 resolved and has not made a material contribution to any need for the proposed treatment of the applicant’s cervical spine.

3.     Award for the respondent in the claim for injury to the applicant’s cervical spine on 2 July 2020.

STATEMENT OF REASONS

BACKGROUND

1. Troy Shipley (the applicant) claims compensation for injury to his back and neck on 31 January 2020 while employed as a forklift driver by Visscher Caravelle Australia Pty Ltd (the respondent). He claims he sustained further injury to his back and neck (also referred to as his cervical spine) on 2 July 2020 while employed by the respondent.

2. The respondent has accepted liability for injury to Mr Shipley’s thoracic spine on both dates but disputes that he suffered injury to his neck on either occasion.

3. Mr Shipley claims compensation for the cost of C6-7, C7-T1 anterior cervical decompression and fusion surgery proposed by spinal surgeon, Dr Brian Hsu. As well as disputing that Mr Shipley suffered injury to his neck, the respondent disputes that the proposed treatment is reasonably necessary as a result of injury on either occasion.

4. The matter first came before the Personal Injury Commission (Commission) for determination on 19 May 2023 when Member Wynyard found for the respondent on the issue of injury on both dates. Mr Shipley appealed that determination.

5. On 14 August 2023, President Judge Phillips revoked the Member’s Certificate of Determination. The appeal submissions contained arguments based on what was put to the Member at the hearing. A transcript of the hearing was not available, and parties did not agree on what had transpired at the hearing. In the circumstances, Judge Phillips decided it would not be fair to either party to determine the appeal.

6. The matter next came before the Commission on 3 November 2023 when Member Homan determined that Mr Shipley sustained injury to his cervical spine on 31 January 2020 and that the cost of the proposed treatment was reasonably necessary as a result of that injury. She found for the respondent in respect of the claim for injury on 2 July 2020. The respondent appealed that determination.

7. On 9 September 2024, Acting Deputy President Perry revoked the Member’s Certificate of Determination on the basis of a breach of procedural fairness. Acting Deputy President Perry was not satisfied that the breach could not possibly have made a difference to the result or that it would inevitably result in the same orders being made at a later hearing.

8. Following a preliminary conference on 18 September 2024, parties attended a conciliation conference and arbitration hearing on 11 November 2024 at which Mr Shipley was represented by Mr McManamey of counsel, instructed by Mr Chadwick. The respondent was represented by Mr Beran of counsel, instructed by Ms Nichols.

9. 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 a settlement acceptable to all of them. I am satisfied that they have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

1. The parties agree that the issues in dispute remain the same as in previous proceedings:

   (a)    whether Mr Shipley sustained injury to his cervical spine on 31 January 2020 and/or 2 July 2020, and

   (b)    if so, whether the treatment proposed by Dr Hsu is reasonably necessary as a result of either injury.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

   (a)    Application to Resolve a Dispute (ARD) and attached documents;

   (b)    Reply and attached documents;

   (c)    Application to Admit Late Documents (AALD) lodged by the respondent on 16 March 2023 and attached documents, and

   (d)    AALD lodged by the applicant on 9 October 2023 and attached documents.

2. An AALD was lodged by the applicant on 4 November 2024 attaching a supplementary statement of Mr Shipley’s evidence dated 1 November 2024. At the arbitration hearing Mr Beran objected to this document being admitted into evidence.

3. Mr Beran submitted it was too late in the proceedings to lodge the document and that no explanation for the lateness had been offered. He submitted that the document sought to address an issue at the previous hearing concerning whether Mr Shipley reported pain in his cervical spine to his doctors. Mr Beran submitted that the respondent would be prejudiced by the admission of the document. Further, that its admission at this stage of the proceedings did not advance the Commission’s objects and principles in ss 3 and 42 of the Personal Injury Commission Act 2020 to facilitate the just and quick resolution of the real issues in the proceedings.

4. Mr Beran relied on Procedural Direction PIC 3 concerning the admission of late documents, in particular the matters to be considered in determining an application for leave to admit late documents, each of which he submitted went against granting leave in this case. Mr Beran submitted that, if the document was to be admitted, he should have leave to cross-examine Mr Shipley on its contents.

5. Mr McManamey submitted that the statement went to the masking effect of medications Mr Shipley was taking in 2020, a matter which Member Homan took into account in her decision. Mr McManamey submitted it was a significant matter in her decision and there was no prejudice to the respondent in allowing it into evidence.

6. I was not persuaded by Mr McManamey’s submissions. In my view, whatever significance the matter had in the earlier decision is beside the point because that Certificate of Determination has been revoked. Moreover, there is no independent evidence before the Commission about the “masking effects” of painkilling medication and I did not accept that it “stands to reason” that it would have the effects claimed by Mr Shipley.

7. I accepted Mr Beran’s submission that it would be prejudicial to the respondent to admit the document without the respondent having an opportunity to obtain its own evidence. I was not persuaded that the prejudice could be cured by allowing cross-examination of Mr Shipley. For these reasons, the application to admit the late document was refused.

8. A briefing letter dated 3 October 2023 to general practitioner, Dr Ayesaha Yousaf, from Chadwick Lawyers was handed up at the hearing and admitted into evidence. It did not appear to have found its way into the papers for this hearing but the parties agreed that it was handed up at the last hearing and was admitted into evidence on the basis that the respondent had no objection to Dr Yousaf's report dated 4 October 2023 in response being admitted. Dr Yousaf’s report is attached to the applicant’s AALD lodged on 9 October 2023.

9. Following the hearing, I sought clarification from the respondent about aspects of Mr Beran’s submissions. Clarification was provided in writing, and the applicant provided further submissions in response.

Oral evidence

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

Mr Shipley’s evidence

1. Mr Shipley provided a statement of evidence dated 20 July 2022[1] which is summarised below.

   [1] ARD page 20.

Injury on 31 January 2020

1. On 31 January 2020, Mr Shipley was driving a forklift and unloading pallets from shipping containers when a load shifted and appeared about to fall. While attempting to push it into a more secure position, he felt “a crack in my neck and pain in my left shoulder and mid and lower back”. He stopped working immediately and lay flat on his back. He was experiencing “very significant pain in my neck, in my left shoulder and in my back.” He was taken by ambulance to Blacktown Hospital where X-rays were taken. He was discharged the same day to the care of Dr Yousaf. He had “great difficulty walking and was experiencing pain in my neck left shoulder and in my back.”

2. Dr Yousaf prescribed Endone and referred Mr Shipley for physiotherapy. She certified him unfit for work until the end of February. He resumed his pre-injury employment in March 2020, on light duties for the first week and thereafter his full pre-injury duties. He continued to experience pain in his neck, left shoulder and back which was mild and interfered with his ability to perform full duties. He took regular breaks to relieve the pain but took no further time off work.

Injury on 2 July 2020

1. On 2 July 2020, Mr Shipley was working alone removing boxes from a container. As they were not on pallets they had to be moved manually. As he lifted one box, he lost balance and fell on his left side. He immediately experienced “sharp shooting pain radiating from my neck into my left shoulder” and “pain in my mid and lower back radiating down my left leg”. He continued to work.

2. For the week following this incident he was experiencing “ongoing neck pain, pain in my left shoulder and my mid and lower back, radiating down both legs, more marked on the left side.” On 10 July 2020, he saw Dr Yousaf who certified him unfit for work. She referred him for an X-ray of his thoracic spine and an MRI of his lumbar spine which were done on 21 July 2020. On 20 August 2020, he resumed light duties four hours a day, three days a week, which he found aggravated his neck, left shoulder and lower back pain.

3. Mr Shipley continued to see Dr Yousaf regularly throughout the rest of 2020 and 2021. He continued to experience pain in his neck, left shoulder and lower back. He continued to see physiotherapists at the Hills Sports Physio at Baulkham Hills. He describes multiple occasions when he says he told Dr Yousaf and other health professionals about the pain in his neck.

4. On 22 September 2020, Mr Shipley told Dr Yousaf he was still experiencing pain in his mid and lower back radiating down his left leg, and pain in his neck and left shoulder.

5. On 26 September 2020, Mr Shipley saw physiotherapist, Phillip Ting. At the time, he was experiencing “significant discomfort in my thoracic and lumbar spines radiating down my left leg, which was aggravated by bending and lifting”. Mr Ting gave him exercises and a strengthening program.

6. On 16 October 2020, Mr Shipley told Dr Yousaf he had ceased work due to “unrelenting pain in my neck, left shoulder and back” and he was also tender in his mid-thoracic spine. Dr Yousaf sent him for a further MRI of his lumbar spine and referred him to neurosurgeon, Dr Brian Hsu.

7. Mr Shipley saw Dr Hsu on 27 November 2020. He told Dr Hsu that, since 2 July 2020, he had been experiencing “pain in my mid to lower back, the latter radiating down into my left leg”. Dr Hsu referred him for a bone scan which showed evidence of structural damage in his left shoulder. Dr Hsu then referred him for an MRI of the left shoulder.

8. On 14 January 2021, Dr Hsu told Mr Shipley the MRI showed structural damage in the periscapular region. He referred Mr Shipley for an MRI of his cervical spine and recommended he see an orthopaedic surgeon for management of his left shoulder condition. On 27 January 2021, he saw orthopaedic surgeon, Dr Nicholas Smith, who recommended an AC joint injection, subject to Dr Hsu’s opinion.

9. On 18 February 2021, Dr Hsu reviewed the MRI of Mr Shipley’s cervical spine. He said Mr Shipley had “a significant problem with [his] left shoulder which was, at least in part, related to [his] cervical spine” based on the MRI. Dr Hsu recommended a series of injections into his cervical spine.

10. On 24 February 2021, Dr Yousaf referred him to pain specialist Dr Allan Nahza in light of his persisting symptoms.

11. On 22 March 2021, Dr Smith told Mr Shipley he suspected the pain in his shoulder was coming from his neck and he wanted him to consult Dr Hsu before pursuing further treatment.

12. On 14 April 2021, Mr Shipley had a CT guided injection into his cervical spine. On 25 April 2021, he developed “significant spasms in my neck” which continued for several days. On 29 April 2021, the pain in his neck became so severe that he attended Ryde Hospital where he was prescribed Endone. He had a further guided injection into his cervical spine on 30 April 2021. On 5 April [sic: presume May] 2021, he told Dr Yousaf he was now experiencing intermittent tingling in his fingers and both hands.

13. Mr Shipley continued to see Dr Yousaf and continued to complain of pain in his neck, shoulder and back. He continued to see Dr Hsu, and Dr Nahza who recommended he seek approval for a TENS machine.

14. On 30 August 2021, Dr Yousaf reviewed Mr Shipley with the results of a recent MRI scan which disclosed a disc bulge in his neck impinging on the nerves in his neck.

15. On 19 October 2021, Mr Shipley told Dr Yousaf that his neck had deteriorated and the pain was “intolerable”. On 21 October 2021, Dr Hsu reviewed the recent MRI scan which showed “significant disc pathology” in his cervical spine. Dr Hsu said one option was fusion of his spine and he would seek approval for this procedure.

16. On 29 November 2021, Mr Shipley saw orthopaedic surgeon, Dr David Duckworth, who told him the pain in his neck and shoulder was coming from his neck and he should pursue the surgery recommended by Dr Hsu.

17. Mr Shipley states that he has “unremitting pain” in his neck which is intolerable and is interfering with his ability to lead a normal life. He wishes to undergo the surgery recommended by Dr Hsu.

Treating doctors’ and health professionals’ reports

Ambulance and hospital records

1. NSW Ambulance and Blacktown Hospital records for 31 January 2020 are in evidence.[2]

   [2] ARD page 28.

2. The NSW Ambulance records show that paramedics attended Mr Shipley at his workplace. He told them that, as he took the weight of the pallet, “he felt a pop in his back with severe pain”. They noted that he was “alert, oriented and well perfused, speaking in full sentences …”. He complained of “pain to the thoracic region of back … with numbness and tingling down his right lower leg. He had “[range of movement] to all limbs”. Their initial assessment was back pain.

3. Blacktown Hospital triage presenting information shows Mr Shipley was brought in by ambulance “after incident at work as forklift operator where patient pushed pallet that was tipping over and felt a pain in his mid thoracic back. Pain started immediately. Initially had bilateral groin pain.”

4. Another Hospital note refers to “from work with upper back pain pushing pallet”. Clinical data was noted as “Thoracic/back pain.” The records also show “Patient had normal upper limb neurological examinations …”

5. Mr Shipley had X-rays of his chest and thoracic spine.

6. The record shows he was “currently at 6/10 after morphine and methoxyflurane”. He complained of pins and needles and numbness over right shin. He was given Endone and told to take Panadeine Forte.

7. The hospital records show repeated references to back pain and thoracic pain. There is no reference in the ambulance or hospital records to Mr Shipley’s neck or cervical spine.

General practitioner’s records

1. Dr Yousaf’s saw Mr Shipley as a new patient on 3 February 2020. Under Active Past History, she recorded “Back and neck injury - work cover”. Her notes show, relevantly:

   “work related injury

   back injury 31/1/20

   moving pallets, tried stopping and felt snap in upper back

   …

   Tender left paraspinal T4-6”[3]

   [3] ARD page 197.

2. On 10 February 2020, Dr Yousaf recorded:

   “chest clear but shallow breathing because of pain

   reduced range of arm extension”[4]

   [4] ARD page 198.

3. Notes of the next consultation on 17 February 2020, show no record of neck pain.

4. On 2 March 2020, Dr Yousaf recorded, relevantly:

   “back pain

   neck pain

   initially neck pain was not much but now cervicogenic headaches

   worse with walking

   limited range of neck movements

   has been getting pins and needles and numbness over right thumb area

   did not have it prior to injury

   tender at C2 at the base of the skull

   reduced range of rotation”[5]

   [5] ARD page 199.

5. On 2 March 2020, Dr Yousaf referred Mr Shipley for X-rays of his chest and thoracic spine, and CT cervical spine noting “neck pain since injury at work, severe jolt in neck and upper back while trying to stop a large load from forklift” and “tender at C2 midline and paraspinal.”

6. The report of the CT cervical spine on 4 March 2020 concluded that Mr Shipley had cervical spine degenerative changes with mild canal stenosis C6/7. There was foraminal narrowing at C7 and C8 foraminal narrowing without definite neural impingement.[6]

   [6] ARD page 53.

7. On 10 March 2020, Dr Yousaf saw Mr Shipley again with the results of the scans. She noted “slowly improving” but her notes are otherwise brief, with no record of particular symptoms.

8. On 18 March 2020 Dr Yousaf recorded, relevantly, that Mr Shipley had been at work in the previous days. She noted:

   “was in pain lunch time

   was on light duties with breaks

   after 4 hrs neck pain and pain behind back of leg”[7]

   [7] ARD page 200.

9. Records for appointments on 24 March 2020, 6 April 2020, 24 April 2020 make no reference to neck pain. On 24 April 2020 Dr Yousaf recorded that Mr Shipley was improved and “nearly back to normal”.[8]

   [8] ARD page 201.

10. Dr Yousaf’s next record is dated 10 July 2020 when she noted that Mr Shipley was lifting large boxes at work on 2 July 2020 and “felt a sharp pain during lifting and then back pain started radiating down to left leg”.[9] She noted that he was tender at L5 and T7-8. She noted “previous throacic [sic] sprain”.[10] She referred Mr Shipley for an X-ray of his thoracic spine and referred him to physiotherapist Nicholas Toose “for opinion and management of lower back pain related to injury.” She noted that Mr Shipley “had thoracic back injury four months ago and that was settled until lower back injury exacerbated the pain.”[11]

    [9] ARD page 201.

    [10] ARD page 202.

    [11] ARD page 57.

11. On 21 July 2020, Dr Yousaf noted that Mr Shipley had had an MRI. He reported “lower back shooting pain horizontally across and left leg”. His upper back was “painful in same area”.[12]

    [12] ARD page 202.

12. Notes of consultations on 24 July 2020, 31 July 2020, 10 August 2020, 14 August 2020, 28 August 2020, 22 September 2020, 6 October 2020 and 16 October 2020 refer to back pain and thoracic pain but make no reference to the cervical spine.

13. On 24 July 2020, Dr Yousaf referred Mr Shipley to another physiotherapist “for an opinion and management of back pain related workplace injury”.[13] A further physiotherapy referral on 31 July 2020 refers to “management of work related back pain with left sided shooting leg pain.”[14]

    [13] ARD page 60

    [14] ARD page 61.

14. On 28 August 2020, Dr Yousaf referred Mr Shipley to physiotherapist Phillip Ting “for an opinion and management of back pain after injury at work”. She noted he “had previous thoracic back injury earlier in the year that got better.” He was lifting oversized boxes on to a pallet on 2 July 2020. He developed lower back and left sided leg pain, sciatica type.[15]

    [15] ARD page 64.

15. Notes of a case conference with the insurer on 16 October 2020 refer to thoracic pain, lower back pain and “shooting pain and left lower leg radicular symptoms”.[16]

    [16] ARD page 207.

1. On 16 October 2020, Dr Yousaf referred Mr Shipley to Dr Hsu “for opinion and management of throacic [sic] and lower back pain after a work related injury, 31/1/20 and 2/7/20 respectively.”[17]

   [17] ARD page 67.

2. On 2 November 2020, Dr Yousaf noted “neck stiffness” and “has been in pain”.[18] She referred Mr Shipley to psychologist Alfred de Robillard for opinion and management of “anxiety and depression associated with back injury”.[19]

   [18] ARD page 208.

   [19] ARD page 69.

3. On 14 November 2020 Mr de Robillard recorded that Mr Shipley said he had had two injuries at work and “this case relates to the second injury that occurred in June [sic] 2020”. He was working one day per week and was “always in pain”.[20] Records for visits on 28 November 2020 and 30 November 2020 refer to pain but not to any specific area.

   [20] ARD page 208.

4. On 30 November 2020, Dr Yousaf referred Mr Shipley to another physiotherapist for opinion and management of back pain associated with a work injury. She noted he had “significant left side muscle stiffness paraspinal along cervical and thoracic spine …”[21]

   [21] ARD page 75.

5. Notes of a case conference on 12 January 2021 show “back pain is there”, “lower back twisting gives electric shock” and “has had left hand T6 pins and needles”. On examination there was left paraspinal T4-5 tenderness. Dr Yousaf also noted “had left shoulder scan”[22]

   [22] ARD page 210.

6. On 27 January 2021, Dr Yousaf noted:

   “4/2/21 – MRI neck

   also? Rotator cuff tear

   saw Dr Brian Hsu

   for shoulder specialist opinion

   given request for shoulder and neck imaging

   She also noted ‘spine tender left paraspinal thoracic [sic] ongoing tenderness’. She referred Mr Shipley to pain specialist, Dr Nicholas Smith, for opinion and management of left shoulder pain associated with neck pain and thoracic pain after work cover injury.”[23]

   [23] ARD page 84.

7. An MRI cervical spine on 28 January 2021[24] showed degenerative changes at C6/7 level where there was impingement of traversing left C7 nerve root. Clinical correlation with dermatome or distribution of symptoms was suggested.

   [24] ARD page 86.

8. On 24 February 2021, Dr Yousaf noted, relevant to Mr Shipley’s neck, “bulging disc in neck” and that he was to have two injections in his neck. She referred him to pain specialist, Dr Alan Nahza, “For opinion and management of neck pain since workplace injury nearly 12 months ago”.

9. On 14 April 2021, Mr Shipley had a CT guided cervical spine injection.[25] On 29 April 2021, he presented to the emergency department at Ryde Hospital with “Pain, neck”.[26] He was given analgesia and discharged with Endone and a recommendation to follow up with his doctor within three days.

   [25] ARD page 94.

   [26] ARD page 100.

10. Notes of further consultations refer from time to time to neck pain and cortisone injections including, on 28 April 2021, that Mr Shipley had “neck spasm since Saturday”[27] and on 5 May 2021 that he had “neck pain since last visit”.[28] On 19 July 2021, his neck was “same no change”.[29]

    [27] ARD page 214.

    [28] ARD page 14.

    [29] ARD page 208.

11. On 18 August 2021, Dr Yousaf referred Mr Shipley to Dr Smith again for “ongoing left shoulder and neck pain”.[30] An MRI of his cervical spine on 24 August 2021 showed multi level cervical spine degenerative changes, notably C6/7 with broad based disc bulging more obvious to the left of midline... there was left C7 foraminal narrowing[31]

    [30] ARD page 130.

    [31] ARD page 136.

12. A referral to Dr Hsu on 30 August 2021 showed that Mr Shipley was having significant neck pain with disc bulge at C8 and radicular bilaterally in C8 distribution.[32]

    [32] ARD page 138.

Physiotherapy reports

1. On 28 February 2020, Annaleise Barton reported to Dr Yousaf, thanking her for referring Mr Shipley “regarding his thoracic spine pain”. She noted that he had injured his back at work on 31 January 2020. On examination he had good range of movement, but pain with thoracic rotation. He was markedly tender through his left thoracic spine from T3 to T7 and he reported occasional headaches.[33]

   [33] ARD page 51.

2. Ms Barton’s appears to the only physiotherapy report in the period 31 January 2020 to 2 July 2020.

3. On 18 August 2020, physiotherapist Dr Dang reported to Dr Yousaf that Mr Shipley told him that, on 2 July 2020, “while lifting and carrying some cylinders at work, he felt a twinge in the lower back while turning with the load.”[34] On initial assessment on 3 August 2020, Mr Shipley complained of localised pain in the “left side SIJ region and intermittent left buttock and/or groin pain”. Dr Dang said his signs and symptoms were consistent with an L5 disc irritation. There is no reference to cervical spine symptoms.

   [34] ARD page 62.

4. On 28 September 2020, Mr Ting reported to Dr Yousaf.[35] He noted her referral for low back pain since 2 July 2020 after lifting a large box awkwardly. When initially seen on 26 September 2020, Mr Shipley reported that his pain was aggravated by bending over and lifting. There is no reference to neck pain.

   [35] ARD page 65.

5. In an undated second report,[36] Mr Ting referred again to the circumstances of the injury and resulting low back pain. In a further undated report,[37] Mr Ting said Mr Shipley reported “alternating worsening pain between his cervical thoracic spine and lumbar spine/left leg”. He demonstrated varying amounts of pain and restriction alternatively in his cervical spine and lumbar spine.

   [36] ARD page 66.

   [37] A reference in the report to 7 October 2020 indicates that it must have been written after that date.

6. Physiotherapist, Justine Walker, reported to Dr Nahza on 31 August 2021.[38] She took a history that Mr Shipley sustained an initial injury while moving pallets at work then a further injury “while lifting a very heavy box, to his neck and left shoulder”. She noted the MRI on 28 August 2021 found multi-level degenerative changes. She said Mr Shipley was unable to extend his cervical spine due to sharp pain. He told her he thought he initially “snapped his spinal cord and neck”.

   [38] ARD page 139.

7. In a confidential patient case history completed by Mr Shipley on 2 February 2021,[39] he identified his main problem as “back pain”. Diagrams indicating the areas of pain point to the lower back and the area around the shoulder blades. They do not appear to mark the cervical spine area.

   [39] ARD page 174.

Dr Yousaf’s report 4 October 2023

1. The briefing letter dated 3 October 2023 to Dr Yousaf stated that Mr Shipley instructed that he had experienced neck pain since the injury on 31 January 2020 which continued after the injury on 2 July 2020. The letter noted that Dr Yousaf’s records “disclose a couple of entries recording neck pain in March 2020 and no complaint of neck pain following the second incident … until November 2020.” It stated that Mr Shipley instructed that he “did not make repeated complaints about his persisting neck pain in 2020 because his principal problem at that time was his thoracic and lumbar back pain.” He stated that “his cervical spine symptoms did not materially deteriorate until the beginning of [2021].”

2. The letter asked Dr Yousaf for a report addressing “whether Mr Shipley experienced neck pain following [the initial incident] and whether such symptoms continued following t[he second incident until his referral to Dr Hsu.” It also asked Dr Yousaf whether she agreed with Dr Hsu’s opinion on 10 August 2022 that both incidents were the main contributing factors to Mr Shipley's cervical spine pathology.

3. On 4 October 2023, Dr Yousaf responded.[40] She said the injury on 31 January 2020 “resulted in thoracic back pain and associated neck pain”. Mr Shipley was “having neck pain with cervicogenic headaches, limited range of neck movements and numbness of right thumb.” A CT of his cervical spine showed degenerative changes and foraminal narrowing at C7 and C8 on the right side. He was cleared to return to work on 24 April 2020. (Mr Shipley said he returned to work in March 2020; Dr Yousaf may mean cleared for pre-injury duties.)

   [40] Applicant’s AALD lodged 9 October 2023.

4. With respect to the injury on 2 July 2020, Dr Yousaf said:

   “There was new onset lower back pain radiating to legs and exacerbation of thoracic back pain. There was cervical and thoracic spine pain as per physiotherapist report. Patient continued to complain of lower back pain in thoracic pain. He complained of neck stiffness on 2 November 2023 but had complained to physiotherapist as per physiotherapist’s report.”

5. Dr Yousaf noted that Mr Shipley was referred to Dr Hsu, and to Dr Smith for management of shoulder pain. She noted that Dr Smith suggested that the left shoulder arthroscopic labrum repair of the shoulder (SLAP) lesion, acromioclavicular joint irritability and cervical spine pathology were contributing to ongoing neck stiffness and shoulder pain. She said:

   “In my opinion patient started having neck problems in Jan, 2020 and later exacerbation of neck pain and stiffness after the second injury that was not very obvious early, possibly due to back and thoracic pain being the major source of pain. This became clearer with further investigations and assessment by Dr Hsu and Dr Smith.”

6. Dr Yousaf said she agreed with Dr Hsu’s opinion “regarding the initial injury being the cause of neck problems and subsequent injury causing exacerbation.” She said the injuries “were clearly at work and were due to lifting at work.” She referred to the MRI on 24 August 2021 which confirmed C6/7 and C7/T1 disc pathology.

Dr Hsu’s reports

1. On 27 November 2020, Dr Hsu reported to Dr Yousaf thanking her for referring Mr Shipley “who has back pain”.[41] He said Mr Shipley demonstrated “significant back pain both in the thoracic and lumbar region”. His work injury had “definitely contributed to these injuries and he continued to experience significant back pain”. Dr Hsu said he had arranged for bone scan of the thoracic and lumbar regions. Dr Hsu attached his “detailed clinical note” which referred to significant thoracic and lumbar back pain but not to any cervical spine symptoms.

   [41] ARD page 72.

2. On 9 December 2020, Dr Hsu reported that Mr Shipley demonstrated “significant signs and symptoms related to the left shoulder” and “there was little doubt he was experiencing some intra articular pathology in the left shoulder.”[42]

   [42] ARD page 76.

3. On 29 December 2020, Dr Hsu reported in response to questions from IPAR Rehabilitation that Mr Shipley’s diagnosis was “discogenic back pain and neck pain, shoulder pain.”[43]

   [43] ARD page 78.

4. On 14 January 2021, Dr Hsu reported that Mr Shipley had returned for follow up of his ongoing pain around the periscapular region and also his lumbar spine and left leg. He noted that the most recent MRI of the left shoulder demonstrated “significant intra articular pathology” that could be related to some of his symptoms in the periscapular region. Dr Hsu said he had arranged for an MRI scan of the cervical spine and an orthopaedic opinion regarding the left shoulder findings.[44]

   [44] ARD page 80.

5. On 18 February 2021, Dr Hsu reported that he had reviewed Mr Shipley that day.[45] He said Mr Shipley had significant left shoulder pathology; some of his symptoms were likely related to his cervical spine which correlated with the findings on the current MRI. Dr Hsu suggested Mr Shipley trial a cervical foraminal injection but he wanted him to wait until his shoulder injections had been completed first.

   [45] ARD page 90.

6. On 2 June 2021, Dr Hsu confirmed his diagnosis of “discogenic back pain and neck pain, shoulder pain”.[46] On 23 June 2021, he reported to Dr Yousaf that cervical spine injections gave only marginal relief to symptoms which were currently “still quite significant”. He said if Mr Shipley’s symptoms worsened with non-operative treatment and pain management, surgical intervention could be considered.[47]

   [46] ARD page 122.

   [47] ARD page 124.

7. On 18 August 2021, Dr Hsu reported to EML that Mr Shipley had back pain “likely related to thoracic disc disease or costovertebral joint dysfunction”. He had been experiencing “significant thoracic and lumbar back pain”. He sustained the injury “while lifting heavy objects at work”.[48]

   [48] ARD page 131.

8. On 20 October 2021, Dr Hsu reported that the recent MRI showed significant disc pathology at C6/7 and C7/T1 and he would arrange to see Mr Shipley to discuss treatment options.[49]

   [49] ARD page 141.

9. On 3 November 2021, Dr Hsu reported that Mr Shipley’s cervical spine symptoms were more severe and, despite previous successful injections, he continued to demonstrate significant cervical radiculopathy with neck pain, shoulder pain and upper limb pain. He said he had discussed treatment options with Mr Shipley, one of which was an anterior cervical decompression and fusion at C6/7 and C7.[50]

   [50] ARD page 144.

10. On 10 August 2022, Dr Hsu reported to Mr Shipley's solicitors.[51] He referred to a history of injury sustained “while lifting heavy objects at work”. He said Mr Shipley had significant left shoulder pathology and he had seen Dr Duckworth who had recommended managing cervical pathology first. Dr Hsu noted that the MRI of the cervical spine demonstrated significant pathology at C6/7 and C7/T1, his cervical symptoms were more severe despite injections, he had exhausted non-operative management, and anterior cervical decompression and fusion was recommended.

    [51] ARD page 169.

Dr Smith’s reports

1. Dr Smith reported to Dr Yousaf on 17 February 2021. He diagnosed “potential cervical spine problem and left shoulder SLAP lesion with AC joint irritability.” He took a history from Mr Shipley that, in January 2020, he attempted to block the fall of a pallet, “snapping his back and since then has also had anterior shoulder pain.” Dr Smith said potential pain generators were Mr Shipley's cervical spine, SLAP lesion and acromioclavicular (AC) joint. He recommended Mr Shipley have an AC joint corticosteroid injection while he completed evaluation by Dr Hsu.[52]

   [52] ARD page 88.

2. On 22 March 2021, Dr Smith reported to Dr Yousaf that he had reviewed Mr Shipley regarding his left shoulder and neck pain. Mr Shipley was due to see Dr Hsu regarding his neck, and he would wait for Dr Hsu’s recommendation.

3. On 17 May 2021, Dr Smith reported to icare. He referred to symptoms in Mr Shipley's shoulder and said he may have some contribution of symptoms from his neck.[53]

   [53] ARD page 120.

Dr Nahza’s reports

1. On 25 June 2021, Dr Nahza reported to Dr Yousaf.[54] He took a history of the injury in January 2020 that Mr Shipley tried to shift a pallet when he noticed a sudden “crack” and he fell to the ground. He was taken to Blacktown Hospital and had one month off work “due to persistent cervical pain”. Approximately three months after returning to work, he was lifting a heavy box and once again had “a profound onset of severe pain to his cervical spine as well as his left shoulder”. The cervical spine bothered him the most in the sub-axial region and was relatively focal. Dr Nahza noted that Mr Shipley had left shoulder pain which appeared to be in the distribution of C5.

   [54] ARD page 125.

Dr Duckworth’s reports

1. Dr David Duckworth saw Mr Shipley on 29 November 2021 regarding his left shoulder.[55] He noted that Mr Shipley also had an ongoing problem affecting his neck. In January 2020 he had a work accident when pushing a pallet which collapsed and he “felt an explosion from his neck, down his back and into his left shoulder”. He had ongoing problems affecting his neck and his shoulder since. His neck appeared to be the main problem. Dr Duckworth said the main pathology appeared to affect his neck rather than his shoulder; he would be interested to see the MRI scans of his shoulder.

Independent medical examiners’ reports

[55] ARD page 146.

Dr Casikar’s reports

1. Neurosurgeon, Dr Vidyasagar Casikar, saw Mr Shipley for assessment on 10 February 2022 and reported on 17 February 2022.[56]

   [56] Reply page 22.

2. Dr Casikar took a history from Mr Shipley that he was unloading pallets from a container on 31 January 2020. When he tried to push one that was out of position, he “developed a severe pain in the neck and left shoulder.” He was taken to Blacktown Hospital where he had X-rays. Two days later, he saw Dr Yousaf and complained of “pain in the middle of the left back, on the left side and left shoulder.” He had a CT scan of the back and the shoulder, and physiotherapy after which there was “significant improvement”. He was cleared for work two months later.

3. Dr Casikar took a history that, on 2 July 2020, Mr Shipley was manually unloading containers. As he tried to stack goods on a pallet, they shifted. During this process he developed “a severe pain in the neck and in the shoulder” which “was exactly as it was before”. Three days later, the shoulder pain and neck pain increased.

4. Dr Casikar noted that Mr Shipley saw Dr Duckworth, Dr Hsu and Dr Nahza. He noted that Mr Shipley had no previous history of shoulder or neck pain. He noted that movements of the neck were limited towards the left, and movements of the left shoulder were significantly reduced in all directions. He noted the MRI of Mr Shipley’s cervical spine on 24 August 2021 showed multisegmented degenerative disease with disc bulges at C6/7 and C7/T1.

5. Dr Casikar diagnosed “soft tissue injury to the left shoulder, constitutional incidental cervical spondylosis”. He considered that Mr Shipley's description of the injury, his subsequent symptoms of pain in the left shoulder and clinical examination suggested the main injury was a soft tissue injury to the left shoulder. He said:

   “Neck pain is common to both cervical spondylosis and soft tissue injury to the shoulder. Considering the normal neurological findings, in my opinion his neck pain is mainly due to the soft tissue injury to the shoulder.”

6. Dr Casikar’s opinion was that Mr Shipley’s employment was a substantial contributing factor to the injury to his shoulder. He said the cervical spondylosis was pre-existing degenerative disease that had not been aggravated by his employment. In his opinion, the neck pain was due to the shoulder condition and not due to the aggravation of the cervical spondylosis. He said there was no logical evidence to support that the workplace incident had aggravated the cervical spondylosis.

7. As to whether the proposed treatment was reasonably necessary, Dr Casikar said Mr Shipley had not completed the appropriate conservative treatment which was physiotherapy and standard treatment of soft tissue injury to the shoulder. He said the treatment proposed by Dr Hsu was not reasonably necessary. The cervical spondylosis was an incidental finding and not the cause of neck pain. He said surgery “based mainly on radiological findings” is likely to have a poor outcome.

8. Dr Casikar provided a supplementary report dated 16 March 2023.[57] He confirmed his diagnosis of “soft tissue injury to the shoulder, constitutional degenerative disease of the cervical spine”. He disagreed with Dr Hsu’s diagnosis which, he said, seemed to be based entirely on the radiological findings. He said neck pain is common to both shoulder problems and neck issues. In the absence of clinically verifiable neurological finding, the neck pain was due to soft tissue injury to the shoulder. As Mr Shipley did not have a cervical spine injury, Dr Casikar said he did not believe the shoulder injury should be treated by cervical spine fusion.

   [57] Respondent’s AALD lodged 16 March 2023.

9. With respect to Dr Bentivoglio's report, Dr Casikar noted that Dr Bentivoglio indicated that cervical surgery would not get Mr Shipley back to any kind of work and was not likely to make his symptoms better. Dr Casikar said he did not understand why someone would recommend surgery in those circumstances.

Dr Bentivoglio’s report

1. Dr Peter Bentivoglio, orthopaedic surgeon, saw Mr Shipley for assessment on 28 April 2022 and reported on 9 May 2022.[58] He was provided with documents including reports from Dr Hsu, A/Prof Smith, Dr Duckworth and Dr Nahza, and radiological reports.

   [58] ARD page 229.

2. Dr Bentivoglio took a history that, on 31 January 2020, Mr Shipley “developed neck pain and a left shoulder pain trying to reposition a pallet on a forklift”. This caused him “to develop neck pain going into the left shoulder”. He noted that Mr Shipley had never had neck issues previously. He went to Blacktown Hospital where X-rays were done of his neck. He saw his local doctor the next day “complaining of left sided neck pain but no arm pain”. He had physiotherapy and returned to work in March 2020, initially on light duties and then on normal duties. He had a second injury on two July 2020 while unloading boxes. He developed “neck pain going into the left shoulder again and low back pain”. The neck pain was similar to the original injury in January 2020. He had a CT scan of his cervical spine on 4 March 2020 because of “neck pain but no true brachialgia”. He had numbness and pins and needles in both hands, left side greater than the right.

1. Dr Bentivoglio noted that Mr Shipley had an MRI of his lumbar spine on 21 July 2020 the report of which was not to hand at the time of his consultation. Dr Bentivoglio noted that his low back pain was “not a major issue”. The left shoulder pain persisted but had improved. He had physiotherapy for his neck and low back, “anything up to 12 months, which was of some help”. Cortisone injections in his neck six to nine months earlier “gave no lasting benefit”.

2. Dr Bentivoglio noted the MRI scan of Mr Shipley's cervical spine on 28 January 2021 showed “a left C6/7 disc prolapse compressing the C7 nerve root and the C7/T1 level was thought to be normal”. A second MRI, on 24 August 2021, revealed “multi level degenerative disc disease in his cervical spine and disc bulges at C67 and C7/T1”.

3. On examination, Dr Bentivoglio noted Mr Shipley had decreased neck movement, especially looking to the left, and he had some altered sensation in the C8 dermatomal distribution. He diagnosed “neck pain secondary to multilevel degenerative disease with discogenic cervical pain, worse at the C6/7 level and also disc bulges at the C7/T1 level.”

4. In response to questions, Dr Bentivoglio said Mr Shipley had “an exacerbation of his pre-existing degenerative disease which was asymptomatic before the work injury on 31 January 2020 to his cervical spine”. The injury on 2 July 2020 “reignited the neck pain going into his left shoulder” exacerbating the original injury”. He noted that the right shoulder [sic: presume left] was also a problem but said that, as he is not an orthopaedic surgeon, he could not assess that.

5. As to the proposed treatment, Dr Bentivoglio said the results of the proposed surgery “are very difficult to predict”. He said he would give Mr Shipley “a 60 to 70% chance of some improvement in his neck symptoms” meaning “a 30 to 40% chance of no improvement at all”. He noted that Mr Shipley had had extensive conservative treatment. He said Mr Shipley had to live as he is now, which was “unsatisfactory”, or he considered the surgery recommended “understanding fully well that there is only a 60 to 70% chance of some improvement in his symptoms.” Dr Bentivoglio said he doubted it would get Mr Shipley back to the work he was doing previously and “probably he will never get back to work at all”. His prognosis was “very guarded indeed, with or without surgery.”

SUBMISSIONS

The applicant’s submissions

1. Mr McManamey refers to Mr Shipley’s statement of evidence and submits there seems to be no dispute regarding the circumstances of his injury on either occasion. On 31 January 2020, Mr Shipley was pushing a pallet with his arm, action that would put strain through his neck and down his back, and which would be quite capable of causing injury to his neck, and there is no dispute that it caused injury to his back.

2. Mr McManamey acknowledges there is no reference in the ambulance notes to Mr Shipley's cervical spine. However, the description of the incident in the notes is consistent with his account. The notes recalled that he complained of pain in his thoracic spine. The presenting problem was his back, and the notes do not define which part of his thoracic spine.

3. With respect to the hospital notes, Mr McManamey submits they show that Mr Shipley had being given morphine and another drug and he was therefore heavily medicated. Mr McManamey submits lucidity would be affected and these records should be approached with caution.

4. Mr Shipley saw Dr Yousaf on 3 February 2020. Dr Yousaf recorded that he felt a “snap” or “pop” in his upper back and not his lower back. Mr McManamey submits that Mr Shipley should not be expected to have given a precise account given the medications he was on.

5. On 10 February 2020, Dr Yousaf noted that Mr Shipley had difficulty breathing and reduced range of motion in his arms, both of which Mr McManamey submits would affect his recall and ability to give a clear history. The records show that, around that time, he was taking two Panadeine Forte three times a day.

6. On 2 March 2020, Dr Yousaf noted that Mr Shipley had back pain and neck pain, and limited range of movement in his neck with pins and needles in his hands. She referred Mr Shipley for a CT cervical spine. Mr McManamey submits the record shows that he complained of neck pain by 2 March 2020, and his statement that he was still experiencing neck pain after he returned to work in March 2020 is consistent with the clinical record.

7. With respect to the injury on 2 July 2020, Mr McManamey refers to Mr Shipley's evidence that he fell on his left side and immediately felt shooting pain in his neck and left shoulder. Mr McManamey submits it is likely a fall in that way would have put some strain on his neck.

8. Mr McManamey concedes there is no mention of Mr Shipley's neck in Dr Yousaf’s notes on 10 July 2020 but submits there is no mention of his left shoulder either, an injury which the respondent accepts.

9. Mr McManamey submits that Mr Ting’s undated report (which must have been after 7 October 2020, referred to in the report) refers to Mr Shipley's cervical spine, showing that it was now part of the treatment, although Mr Ting gives no further information about it. Mr McManamey concedes that Mr Ting’s earlier reports say Mr Shipley was referred for lower back pain after the injury on 2 July 2020. On 2 November 2020, Dr Yousaf’s notes show he had neck stiffness.

10. Mr McManamey submits that, although Mr Shipley was referred to Dr Hsu for back pain initially, Dr Hsu’s reports show that, by 29 December 2020, he was having back and neck pain, and he diagnosed the neck condition. Mr McManamey submits that it is clear by this time that his neck was involved (as well as previously).

11. Mr McManamey submits that Dr Duckworth on 29 November 2021 also noted ongoing problems with Mr Shipley’s neck. He took a history that in January 2020 Mr Shipley felt “explosion in his neck”. Dr Duckworth considered that the main pathology was affecting his neck rather than his shoulder. Mr McManamey submits that Dr Duckworth thinks both his shoulder and his neck are involved, not one or the other.

12. Mr McManamey submits that, from this time onward, there are fairly steady references to Mr Shipley's neck pain and treatment. On 30 November 2020, he was referred for physiotherapy for significant stiffness in his cervical spine. The MRI on 28 January 2021 showed widespread degenerative change at C6/7. Mr McManamey submits the only explanation is that there was some damage in one or other incident.

13. Dr Smith’s report on 17 February 2021 shows the potential cervical spine problem, in Mr McManamey’s submission indicating ongoing involvement from here on and Mr Shipley had constant neck pain.

14. As to whether the proposed treatment is reasonably necessary, Mr McManamey submits that Dr Hsu says Mr Shipley has run out of conservative options. Dr Bentivoglio supports the proposed treatment, although Mr McManamey concedes that parts of the history he took cannot be made out, in particular the reference to X-ray of the cervical spine at Bankstown Hospital. To the extent that the X0-ray on that day is significant, Mr McManamey accepts that Dr Bentivoglio was wrong. However, Mr McManamey submits that he supports the treatment.

15. Mr McManamey refers to the last paragraph of Mr Shipley's statement in which he says he is suffering unrelenting neck pain which is interfering in all aspects of his life.

16. In conclusion, Mr McManamey submits that Dr Hsu recommends the treatment, Dr Bentivoglio supports it, Dr Duckworth says Mr Shipley’s neck should be dealt with first, and Dr Smith accepts that both the shoulder and neck are involved.

17. With respect to Dr Casikar, Mr McManamey submits that he took a history that Mr Shipley felt pain in his neck and shoulder and has done since. On examination, he found restricted movement on the left side and diagnosed soft tissue injury. Mr McManamey submits that Dr Casikar does not explain why he diagnoses constitutional incidental cervical spondylosis; he discusses it despite the history he took and one would expect he would at least support an aggravation. Dr Casikar is alone in saying that the neck pain is due to the shoulder. Other doctors say it is at least a combination. He accepts the pain in the neck is injury-related but says it comes from the shoulder. He does not explain why he eliminates cervical spondylosis as a cause.

18. Mr McManamey submits that Dr Casikar seems to shift his opinion in his supplementary report and says the neck pain is common to the neck and shoulder. Mr McManamey submits that he is not correct in saying that Dr Hsu based his diagnosis entirely on radiological findings; he also examined Mr Shipley. Dr Hsu noted on 10 August 2022 that Mr Shipley had shoulder pathology, confirmed by Dr Duckworth, Mr McManamey submits that Dr Hsu agrees there are two problems. He explains why the proposed treatment is reasonably necessary. He has not rushed to surgery and suggests it after Mr Shipley has undergone extensive treatment.

19. With regard to Dr Yousaf’s report of 4 October 2023, Mr McManamey submits that she noted on 31 January 2020 that there was associated neck pain. Her clinical notes confirm that Mr Shipley complained of neck pain. Dr Yousaf gives her opinion that it started in January 2020 and became clearer with further investigation. Mr McManamey urges me to accept Dr Yousaf’s opinion, she has seen Mr Shipley from the outset and had the opportunity to examine him, and her report should be of greater standing than his clinical notes.

The respondent’s submissions

1. Mr Beran submits that Mr Shipley bears the onus of proof and I must feel an actual persuasion of the matters he is required to establish.

2. Mr Beran submits that the histories taken by the doctors are “like Chinese whispers” that end with the history taken by Dr Duckworth that Mr Shipley felt an “explosion” in his neck. Mr Beran submits I would not feel an actual persuasion about that report considering Dr Yousaf’s contemporaneous records.

3. Mr Beran submits there is no evidence to support the submission that Mr Shipley “would have” injured his neck. Moreover, no doctor actually gives an opinion on the mechanism of injury and I cannot be comfortably satisfied.

4. With respect to the NSW Ambulance records, Mr Beran submits they show a call was received at 8.06am and the ambulance arrived at 8.49am. He submits there were 50 minutes before Mr Shipley was seen by the ambulance and another eight minutes before he was given medication. The ambulance officers recorded “as per patient” that he felt “pop in back”. Mr Beran submits that history was taken from Mr Shipley in the 41 minutes he was without pain relief and the eight minutes before he was given medications, during which time it is reasonable to assume he had a clear mind. Mr Beran also submits that the records show no mention of cervical spine precautions which could be expected if a cervical spine injury was suspected.

5. Mr Beran submits there is nothing in the ambulance records about Mr Shipley's neck. The records note sharp pain in his thoracic spine and an initial assessment of back pain.

6. Mr Beran submits that the hospital notes show that Mr Shipley was admitted at 9.33am. He was noted to have mid thoracic pain and “normal upper limb and examinations”. Mr Beran submits that these examinations are done to see if there is any neck injury and, despite this examination, nothing is noted regarding the neck.

7. Mr Beran submits that the clinical impression recorded by the various practitioners’ show nothing regarding Mr Shipley's neck. He submits there is no doubt Mr Shipley has degenerative pathology, that is unarguable on the scans, but it does not follow that the condition was aggravated by the incident. Mr Beran submits that Dr Yousaf’s clinical records are consistent with the ambulance and hospital records at the time of the alleged injury.

8. Mr Beran submits that Mr Shipley was referred to the physiotherapist on 28 February 2020 for thoracic spine pain. He submits that, if Mr Shipley was complaining of pain in his neck, it would have been included in the referral. The physiotherapist’s report says he injured his back and there is marked tenderness on the thoracic spine. There is no record of pain in Mr Shipley's neck.

9. Mr Beran submits that the first reference in Dr Yousaf’s notes to Mr Shipley's neck is on 2 March 2020, some five weeks after the initial injury, during which there are no records of pain or symptoms in his neck. Moreover, when she does note symptoms in the neck, they are of tenderness at C2, at the top of the neck, not around C6/7.

10. On 24 April 2020, Dr Yousaf recorded that Mr Shipley had improved and was nearly normal, and he could resume pre-injury duties. Mr Beran submits that whatever pain Mr Shipley did have had resolved. He submits this is the sum of the evidence concerning the claimed injury on 31 January 2020 and I could not feel an actual persuasion of the injury as claimed based on this evidence.

11. Regarding the injury on 2 July 2020, Mr Beran submits that Mr Shipley saw Dr Yousaf 10 days later. Dr Yousaf refers to previous injury to his thoracic spine. The first time she identifies the neck as the cause of any problem is on 2 November 2020. Mr Beran submits that, from 2 July 2020 to 2 November 2020, there is no reference to thoracic spine pain or cervical spine pain.

12. Mr Beran submits that the referrals to the physiotherapists make no reference to Mr Shipley’s neck. The referral on 10 July 2020 was for thoracic injury four weeks previously. The same goes for referrals to Dr Dang for “twinge in the lower back”. Mr Beran submit that liability for this second injury was not declined until July 2022 and there was no reason not to treat the cervical spine in 2020 if it was in fact involved. The referrals to Mr Ting all refer to the previous thoracic spine injury. Mr Ting’s report on 28 September 2020 makes no reference to the neck and nor does his undated report. The referral to Dr Hsu on 16 October 2020 makes no reference to Mr Shipley's neck. Mr Beran submits that the most that can be said is that the referral to the physiotherapist on 30 November 2020 refers to “muscle stiffness paraspinal along cervical”.

13. Mr Beran acknowledges that Mr Ting’s undated report records pain and reduced range of movement in Mr Shipley's neck. However, he submits, this is the first reference to the cervical spine since April 2020.

14. Mr Beran submits there is no reference to Mr Shipley’s cervical spine in Dr Hsu’s report of 27 November 2020, even though he refers to the thoracic spine and lumbar the spine. The only history Dr Hsu records is of “significant thoracic and lumbar spine symptoms” due to lifting heavy objects. Moreover, the recorded cause of the injury is different (Mr Shipley says he tripped). The first reference to the cervical spine is in his report of 29 December 2020 when Dr Hsu takes an incorrect history that Mr Shipley was lifting a heavy object.

15. Mr Beran submits that Mr Shipley’s cervical spine only comes into focus from 14 January 2021 when Dr Hsu refers to the MRI. Mr Beran submits that the letter of instruction to Dr Yousaf shows that Mr Shipley's cervical spine deteriorated at the start of 2021. He submits that, in effect, this is an admission that it did not deteriorate until January 2021.

16. Mr Beran submits that the physiotherapy records for 2 February 2021 describe Mr Shipley's main problem as back pain. Mr Beran again submits that liability had not been declined for the cervical spine at this point and there would have been no reason not to treat that injury. Mr Beran submits that the physiotherapist was treating Mr Shipley’s thoracic spine and lumbar spine based on what Mr Shipley reported and neither the diagram identifying the source of pain nor the clinical notes refer to the neck.

17. Mr Beran submits that the referral letter to Dr Smith on 21 January 2021 refers to pain on the left side associated with neck pain. Dr Smith’s report of 17 February 2021 did not record neck pain. Mr Shipley told Dr Smith he felt a snap in his back and shoulder. Dr Smith considered that potential pain generators were his neck (degenerative condition) and his shoulder (SLAP tear). Mr Beran submits they are competing reasons for the cause of his pain, and the respondent accepts that the left shoulder was causing him pain.

18. Turning to the treating reports, Mr Beran submits that Dr Hsu’s report on 2 June 2021 says nothing of causation. His report on 25 June 2021 is based on an incorrect history that Mr Shipley was off work for a month due to persistent neck pain. That history was incorrect regarding the history of the pain and the time off work. On 18 August 2021, Dr Hsu recorded that the injury occurred “while lifting heavy objects” but that is not how the injury occurred. Dr Hsu first reviewed Mr Shipley on 27 November 2020 when he had significant thoracic and lumbar spine pain. Dr Hsu then says it was due to the nature and conditions of Mr Shipley’s employment but this is not a nature and conditions claim. The history first recorded by Dr Hsu in November 2020 was incorrect. Mr Beran submits that I cannot rely on his reports to find injury on either date.

19. With respect to Dr Bentivoglio, Mr Beran submits that he took a history of neck and left shoulder pain on 31 January 2020. However, there is no record of either in the ambulance or hospital notes, and nothing in the ambulance notes to suggest any precautions taken before moving Mr Shipley. Mr Beran submits that Dr Bentivoglio took an incorrect history and the weight given to his report should be given minimal, if not negligible, following Makita(Australia) Pty Ltd v Sprowles[59]and Hancock v East Coast Timber Products Pty Ltd[60]. Mr Beran submits that the same applies to Dr Hsu’s evidence.

    [59] [2001] NSWCA 305

    [60] 80 NSWLR 43

20. Mr Beran acknowledges that the authorities say that clinical records must be approached with some caution. However, Mr Shipley asks me to accept his claim despite the absence of contemporaneous records. He relies on Dr Yousaf’s report three years later and asks me to give it weight over the contemporary records. Mr Beran submits that Dr Yousaf’s report is totally contrary to the clinical records and should be given very little weight. Dr Casikar diagnosed degenerative change and says the neck symptoms are coming from Mr Shipley's shoulder, and this is supported by the records.

21. In Mr Beran’s submission, Mr Shipley's claim does not get over the line as far as actual persuasion regarding either injury.

22. Mr Beran submits that, in any event, the proposed treatment is not reasonably necessary. Dr Casikar says it should not be undertaken and Dr Bentivoglio gives a very guarded prognosis. Mr Beran submits that, if the first injury did exacerbate the degenerative condition, the evidence shows that, by March 2020, Mr Shipley had recovered and returned to work. His neck degenerated in early 2021 after he had not been at work since April 2020. Mr Beran submits the evidence does not support that the first injury made a material contribution to the need for the surgery.

23. In written submissions following the hearing, Mr Beran clarified submissions regarding the histories taken by the doctors of the injury on 2 July 2020. He referred to the history taken by Dr Hsu on 27 November 2020 that Mr Shipley sustained injury “while lifting heavy objects at work”, in particular “multiple boxes”. Dr Nahza took a history that he was “lifting a heavy box”. In contrast, Mr Shipley said he was holding a box and it was the act of falling that caused the injury. Mr Beran submits that the distinction may be small but is nevertheless important, especially because Dr Hsu took a history that it was the lifting of multiple boxes which is clearly incorrect.

Reply

1. In reply, Mr McManamey submits that clinical notes are just one part of the evidence. A dearth of records of neck pain does not mean the injury did not happen. For example, the first physiotherapist was asked to treat thoracic spine pain and he treated it; it does not follow that Mr Shipley did not have neck pain. For further example, case conference notes do not refer to the neck even though we know Mr Shipley had been complaining of neck pain since around September 2020. At most, it can only be said that there is an absence of evidence, and this is explained by Mr Shipley and by Dr Yousaf, that his other problems were worse and it was only as his neck progressed that it became prominent.

1. Mr McManamey submits that the Dr Yousaf’s report in 2023 should be given weight. She gives her opinion and the respondent cannot say that she would not remember what happened when seeing Mr Shipley earlier.

2. In reply to Mr Beran’s written submissions, the applicant submits that they do not represent a proper understanding of what Mr Shipley says occurred on 2 July 2020. He did not say he fell to the ground or that his injury was caused by anything other than the act of lifting the box. The respondent has previously accepted liability for injuries to his left shoulder, mid and low back arising from that incident and it is submitted that the act of lifting the box would be likely to cause injury to the neck as well. The applicant submits that any distinction identified by the respondent is of no substance.

3. With respect to clinical records generally, the applicant refers to authorities regarding the caution needed when relying on medical notes unsupported by oral evidence and the care that must be taken when attaching significance to particular language used in notes and the history is recorded by medical practitioners.

CONSIDERATION

1. Section 4 of the Workers Compensation Act 1987 (1987 Act) relevantly defines “injury” as follows:

   “In this Act injury means:

   (a) 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, … ”     

2. Section 60(1) of the 1987 Act provides:

   “If, as a result of an injury received by a worker, it is reasonably necessary that:

   (a)any medical or related treatment (other than domestic assistance) be given, or

   (b)any hospital treatment be given, or

   (c)any ambulance service be provided, or

   (d)any workplace rehabilitation service be provided,

   the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”

3. I have to determine whether Mr Shipley sustained injury to his cervical spine on 31 January 2020 and/or 2 July 2020 and if so, whether the treatment proposed by Dr Hsu is reasonably necessary as a result of either injury.

4. Mr Shipley 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 his claim: Department of Education and Training v Ireland[61] and Nguyen v Cosmopolitan Homes.[62]

   [61] Department of Education and Training v Ireland [2008] NSWWCCPD 134.

   [62] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.

5. The legal test of causation was described by Kirby P (as he then was) in KooragangCement Pty Ltd v Bates[63] as:

   “The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”

   [63] KooragangCement Pty Ltd v Bates 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).

6. The work injury does not have to be the only, or even a substantial, cause of the need for reasonably necessary treatment. In Murphy v AllityManagement Services Pty Ltd,[64] Deputy President Roche said at [57]-[58]:

   “Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.

   Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”

   [64] Murphy v AllityManagement Services Pty Ltd [2015] NSWWCCPD 49.

7. As to whether particular treatment is reasonably necessary, President Judge Phillips observed at [65] in Couch that this area of workers compensation law is well settled. He cited Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; (19886) 2 NSWCCR 32.where he said:

   “It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.”

   He continued (at [66]):

   “Related to what Burke CCJ said in Rose, s 60 of the 1987 Act was extensively canvassed by Deputy President Roche in Diab. The Deputy President in Diab from [76]–[91] reviewed the authorities and settled upon the approach to be taken in matters such as this. In particular of relevance to this appeal are the Deputy President’s remarks in Diab at [88] and [89]:

   ‘88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose ... namely:

   (a) the appropriateness of the particular treatment;

   (b) the availability of alternative treatment, and its potential effectiveness;

   (c) the cost of the treatment;

   (d) the actual or potential effectiveness of the treatment, and

   (e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

   89.With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.’” (emphasis added).

172.There is no dispute that Mr Shipley had degenerative changes in his cervical spine prior to either claimed date of injury. For the following reasons, I am satisfied, on the balance of probabilities, that he suffered an aggravation of his degenerative condition on 31 January 2020 to which his employment was the main contributing factor.

1. I accept that questions are raised by the absence in the ambulance and hospital records of any reference to his cervical spine. I do not accept that it can be inferred from the fact that he was given strong medication shortly after the incident that his recollection was therefore impaired. There is no independent evidence about the effect of the medication he was given. Equally, I do not accept that it can be inferred that he was lucid in the hour or so while he was being treated by ambulance officers, before he was given strong medication, although the ambulance records suggest that he was reasonably so..

2. I place no weight on the fact that there is no mention the ambulance records of cervical spine precautions on 31 January 2020. There is no evidence as to what those particular precautions might be or the circumstances in which they would be employed.

3. Even assuming Mr Shipley was lucid in the time before he was given strong medication, the clinical records should not be given undue weight. Courts have said repeatedly that medical records have to be approached with caution, and the weight of particular material has to be assessed in light of the purpose and nature of the documentary record, the circumstances in which it was created and by whom: Davis v Council of the City of Wagga Wagga,[65] King v Collins,[66] Mastronardi v State of New South Wales. In Mason v Demasi,[67] Basten J said apparent inconsistencies between an applicant’s testimony and those in medical records should be treated with caution for a range of reasons including where the health professional has not given evidence about how and why the history was recorded.

   [65] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.

   [66] King v Collins [2007] NSWCA 122.

   [67] Mason v Demasi [2009] NSWCA 227.

4. On 3 February 2020, Dr Yousaf recorded “Back and neck injury - work cover”. The rest of her notes refer only to Mr Shipley’s  upper back but the reference to neck injury remains. On 17 February 2020, Dr Yousaf noted “chest clear but shallow breathing because of pain” and “reduced range of arm extension”. She did not refer to particular body parts at all. In these circumstances, the absence of reference to neck pain is of no consequence. However, on 2 March 2020, she recorded back pain and neck pain, noting that “initially neck pain was not much but now cervicogenic headaches” (emphasis added).

5. On 2 March 2020, Dr Yousaf referred Mr Shipley for a CT cervical spine. The report on 4 March 2020 showed cervical spine degenerative changes with mild canal stenosis C6-7. The report of itself is not evidence of aggravation. However, Mr Shipley had evidently reported neck symptoms which within five weeks of the incident were sufficient for Dr Yousaf to refer him for a scan. It is not suggested that the incident caused those changes, only that it aggravated them.

6. Dr Yousaf reported on 4 October 2023 that the injury on 31 January 2020 “resulted in thoracic back pain and associated neck pain”. She said Mr Shipley was “having neck pain with cervicogenic headaches, limited range of neck movements and numbness of right thumb.” That is supported in broad terms by her records at the time. Despite some difficulties, her report cannot be dismissed as reporting matters that were not reported at the time.

7. I find, on the evidence that, on the balance of probabilities, Mr Shipley suffered injury to his cervical spine on 21 January 2020 by way of aggravation of pre-existing degenerative change. There is no suggestion of any other factor contributing to his injury. I am satisfied that his employment was the main contributing factor to the aggravation. I do not think that finding is undermined by varying descriptions of feeling a “pop” in his neck, a “sudden crack”, “an explosion” and so on. There could be any number of reasons for varying descriptions. Even if some were exaggerated, that would go more to severity rather than occurrence.

8. That said, the evidence indicates that the injury to Mr Shipley's cervical spine was relatively minor and that it resolved within a relatively short time. It was not included in the referral to the physiotherapist on 28 February 2020 or mentioned in the physiotherapist’s report. I do not agree with Mr McManamey that the physiotherapist only treated the thoracic spine because that the body part mentioned in the referral. If the cervical spine had been sufficiently serious, it is reasonable to infer that she would have treated it even if not mentioned in the referral. I find its absence reflects that it was a relatively minor aggravation that resolved within a short time.

9. This finding is supported by the fact that Mr Shipley returned to work in March 2020 and was apparently cleared for pre-injury duties on 24 April 2020. To the extent that he had any further symptoms at all, they did not interfere with his ability to perform full duties. He says he took regular breaks to relieve the pain but he took no further time off work, and he did not see a doctor regarding neck pain for approximately another seven months.

10. There is no further mention of Mr Shipley’s cervical spine in Dr Yousaf’s records or physiotherapy records until after the 2 July 2020 injury. The first mention is not until 2 November 2020.

11. Mr Shipley claims he suffered as further aggravation to his cervical spine on 2 July 2020. He says while lifting one box, he felt a “sharp shooting pain” radiating from his neck into his left shoulder. He says for the week following this incident he was experiencing “ongoing neck pain” and pain in his left shoulder and mid- and lower back, radiating down both legs. On 10 July 2020, he saw Dr Yousaf who certified him unfit for work. She referred him for an
    X-ray of his thoracic spine and an MRI of his lumbar spine which were done on 21 July 2020. On 20 August 2020, he resumed light duties four hours a day, three days a week, which he found aggravated his neck, left shoulder and lower back pain. He continued to see Dr Yousaf regularly and he continued to experience pain in his neck, left shoulder and lower back. He also continued to see physiotherapists. He says he told Dr Yousaf and physiotherapists on multiple occasions about the pain in his neck.

12. Mr Shipley describes in his statement that the injury occurred as he lifted one box. As Mr Beran submits, there are varying descriptions of exactly what he was doing at the time, whether he lifted one or more boxes, whether he hurt himself lifting a box or when he fell. In my view, there are limits to how much weight can be put on variations in descriptions when they have not been put to Mr Shipley. It is not clear, and the evidence has not been tested, whether those varying descriptions were his or whether they reflect various professionals’ understanding of how the incident occurred. However, they assume some significance in the absence of any clear opinion by treating or assessing doctors as to the mechanism by which he is said to have injured his neck.

13. On 21 July 2020, Dr Yousaf noted that Mr Shipley had had an MRI of his lumbar spine. He reported “lower back shooting pain horizontally across and left leg”. His upper back was “painful in same area”.[68]

    [68] ARD page 202.

14. Dr Yousaf’s records show that Mr Shipley saw her on 24 July 2020, 31 July 2020, 10 August 2020, 14 August 2020, 28 August 2020, 22 September 2020, 6 October 2020 and 16 October 2020. Her records refer variously to back pain and thoracic pain but they make no mention of his cervical spine.

15. Referrals to physiotherapists make no mention of Mr Shipley's cervical spine. Rather, they refer him for opinion and management of back pain. On 24 July 2020, Dr Yousaf referred him “for an opinion and management of back pain related workplace injury”. A further physiotherapy referral on 31 July 2020 refers to “management of work related back pain with left sided shooting leg pain.” On 28 August 2020, she referred him to Mr Ting “for an opinion and management of back pain after injury at work”. She noted he “had previous thoracic back injury earlier in the year that got better.” She said he had “lower back and left sided leg pain, sciatica type” after lifting heavy boxes on 2 July 2020.

16. Notes of a case conference with the insurer on 16 October 2020 refer to thoracic pain, lower back pain and “shooting pain and left lower leg radicular symptoms”.[69]

    [69] ARD page 207.

17. On 16 October 2020, Dr Yousaf referred Mr Shipley to Dr Hsu “for opinion and management of throacic [sic] and lower back pain after a work related injury, 31/1/20 and 2/7/20 respectively.”

18. It was not until 2 November 2020 that Dr Yousaf noted “neck stiffness” and “has been in pain”. Even then, she referred Mr Shipley to psychologist Alfred de Robillard for opinion and management of “anxiety and depression associated with back injury”.

19. Dr Yousaf reported that Mr Shipley suffered later exacerbation of neck pain and stiffness after the second injury. She said it was “not very obvious early, possibly due to back and thoracic pain being the major source of pain”. A difficulty with this statement is that Mr Shipley says he suffered “sharp shooting” neck pain at the time of the second incident. Dr Yousaf’s tentative statement that it was not obvious early “possibly” due to more serious pain does not account adequately for the absence of any mention of it for four months.

20. On 18 August 2020, physiotherapist Dr Dang reported to Dr Yousaf that Mr Shipley told him that, on 2 July 2020, “while lifting and carrying some cylinders at work, he felt a twinge in the lower back while turning with the load.” On initial assessment on 3 August 2020, Mr Shipley complained of localised pain in the “left side SIJ region and intermittent left buttock and/or groin pain”. Dr Dang said his signs and symptoms were consistent with an L5 disc irritation. There is no reference to cervical spine symptoms.

21. On 28 September 2020, Mr Ting reported to Dr Yousaf. He noted her referral for low back pain since 2 July 2020 after lifting a large box awkwardly. When initially seen on 26 September 2020, Mr Shipley reported that his pain was aggravated by bending over and lifting. There is no reference to neck pain.

22. In his undated second report, Mr Ting referred again to the circumstances of the injury and resulting low back pain since 2 July 2020. In his further undated report, Mr Ting said Mr Shipley reported “alternating worsening pain between his cervical thoracic spine and lumbar spine/left leg”. He demonstrated varying amounts of pain and restriction alternatively in his cervical spine and lumbar spine. Although undated, Mr Ting’s further report must post-date 7 October 2020 as he refers to Mr Shipley's pain score on that date.

23. Dr Hsu reported on 27 November 2020 that Mr Shipley demonstrated “significant back pain both in the thoracic and lumbar region”. His work injury had “definitely contributed to these injuries and he continued to experience significant back pain”. His detailed clinical note referred to significant thoracic and lumbar back pain but not to any cervical spine symptoms. On 9 December 2020, he considered there was little doubt that Mr Shipley had pathology in the left shoulder, subsequently confirmed by MRI. He diagnosed discogenic back pain and neck pain, and shoulder pain. In January 2021, he arranged for an MRI scan of the cervical spine and an orthopaedic opinion regarding the left shoulder. On 18 February 2021, he reported that Mr Shipley had significant left shoulder pathology and some of his symptoms were likely related to his cervical spine. Dr Hsu later confirmed his diagnosis of discogenic back pain and neck pain, shoulder pain. On 20 October 2021, he reported that the recent MRI showed significant disc pathology at C6-7 and C7-T1.

1. Dr Hsu noted pathology in Mr Shipley’s cervical spine but in my view he is not adequately explained causation by reference to the mechanism of injury, the relationship to the
   pre-existing condition or the relationship to the left shoulder.

2. Dr Smith reported on 17 February 2021 diagnosing “potential cervical spine problem and left shoulder SLAP lesion with AC joint irritability”. On 17 May 2021, he reported to icare that symptoms in Mr Shipley's shoulder may have some contribution of symptoms from his neck. It is fair to say that his opinion was tentative with regard to the cervical spine.

3. Dr Duckworth saw Mr Shipley on 29 November 2021 regarding his left shoulder. He noted that Mr Shipley also had an ongoing problem affecting his neck. He noted the work accident in January 2020 and that Mr Shipley had ongoing problems affecting his neck and his shoulder since. His neck appeared to be the main problem. Dr Duckworth said the main pathology appeared to affect his neck rather than his shoulder. He said he would be interested to see the MRI scans of his shoulder. Dr Duckworth also does not appear to have had a full history, including the periods without any mention in clinical records of Mr Shipley’s cervical spine.

4. Dr Casikar noted that Mr Shipley saw Dr Duckworth, Dr Hsu and Dr Nahza. He noted that Mr Shipley had no previous history of shoulder or neck pain. He noted that movements of the neck were limited towards the left, and movements of the left shoulder were significantly reduced in all directions. He noted the MRI of Mr Shipley’s cervical spine on 24 August 2021 showed multisegmented degenerative disease with disc bulges at C6-7 and C7-T1. He considered that Mr Shipley's description of the injury, his subsequent symptoms of pain in the left shoulder and clinical examination suggested the main injury was a soft tissue injury to the left shoulder, and that neck pain was due to constitutional cervical spondylosis which had not been aggravated by his employment. He considered there was no logical evidence to support that the workplace incident had aggravated the cervical spondylosis.

5. Dr Casikar confirmed his diagnosis in his later report. He said in the absence of clinically verifiable neurological finding, the neck pain was due to soft tissue injury to the shoulder.

6. Dr Bentivoglio saw Mr Shipley in April 2022, nearly two years after the July 2020 incident. He took a history that in July 2020 Mr Shipley developed “neck pain going into the left shoulder again and low back pain”. He noted that Mr Shipley had an MRI of his lumbar spine on 21 July 2020 which was “not a major issue”. He noted the MRI scan of Mr Shipley's cervical spine on 28 January 2021 showed “a left C6/7 disc prolapse compressing the C7 nerve root and the C7/T1 level was thought to be normal”. A second MRI, on 24 August 2021, revealed “multi level degenerative disc disease in his cervical spine and disc bulges at C67 and C7/T1”.

7. On examination, Dr Bentivoglio noted Mr Shipley had decreased neck movement, especially looking to the left, and he had some altered sensation in the C8 dermatomal distribution. He diagnosed “neck pain secondary to multilevel degenerative disease with discogenic cervical pain, worse at the C6/7 level and also disc bulges at the C7/T1 level.”

8. In response to questions, Dr Bentivoglio said Mr Shipley had “an exacerbation of his pre-existing degenerative disease which was asymptomatic before the work injury on 31 January 2020 to his cervical spine”. The injury on 2 July 2020 “reignited the neck pain going into his left shoulder” exacerbating the original injury. He noted that “the right shoulder [sic: presume left] was also a problem” but said that, as he is not an orthopaedic surgeon, he could not assess that.

9. Dr Bentivoglio does not appear to have had a full history of the second incident. He does not explain, or come to grips with, the absence of neck symptoms for four months following the incident. He does not appear to consider whether the natural progression of the degenerative disease could account for the symptoms when he saw Mr Shipley nearly two years later. He does not explain the mechanism of injury. He does not appear to come to grips with any relationship with the left shoulder condition.

10. For these reasons, I am not persuaded that Mr Shipley has discharged the onus of establishing that he suffered injury to his cervical spine on 2 July 2020.

11. There is no dispute that Mr Shipley had pre-existing degenerative changes in his cervical spine. I accept that those changes were aggravated by the incident on 31 January 2020. I find that injury resolved within a short time. I am not persuaded, on the evidence, that it made a material contribution to any need for the treatment proposed by Dr Hsu. Any need for that treatment is not a result of the injury on 31 January 2020.

12. I prefer Dr Casikar’s opinion that Mr Shipley’s cervical spine condition is due to the progression of pre-existing degenerative change and not to any injury on 2 July 2020.

13. For these reasons, Mr Shipley’s claim for compensation for the cost of the proposed treatment of his cervical spine must fail.