Shipley v Visscher Caravelle Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shipley v Visscher Caravelle Australia Pty Ltd [2023] NSWPIC 585
APPLICANT:	Troy Shipley
RESPONDENT:	Visscher Caravelle Australia Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	3 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 60 for the costs of and incidental to a proposed cervical spine surgery; whether injury to cervical spine in two workplace incidents; where pre-existing degenerative pathology; where contemporaneous medical records only described symptoms in other parts of the spine; Held – applicant sustained an injury to his cervical spine in the first workplace incident; applicant failed to discharge onus of demonstrating injury to cervical spine in the second event; material contribution from first injury to condition requiring surgery; proposed surgery is reasonably necessary medical treatment; respondent to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a personal injury to his cervical spine in the course of employment on 31 January 2020 pursuant to s 4(a) of the Workers Compensation Act 1987. 2. Employment with the respondent was a substantial contributing factor to the injury to the applicant’s cervical spine on 31 January 2020 pursuant to s 9A of the Workers Compensation Act 1987. 3. Award for the respondent in respect of the claim of injury to the cervical spine on 2 July 2020. 4. The C6-7, C7-T1 anterior cervical decompression and fusion surgery proposed by Dr Brian Hsu is reasonably necessary as a result of the injury on 31 January 2020. The Commission orders: 5. The respondent to pay the costs of and incidental to the C6-7, C7-T1 anterior cervical decompression and fusion surgery in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Troy Shipley (the applicant) was employed as a storeman by Visscher Caravelle Australia Pty Limited (the respondent).
On 31 January 2020, the applicant was driving a forklift to unload pallets from shipping containers. The applicant noticed that a pallet at the bottom of his forklift was crushed, causing the pallet on top of it to lean as though it was going to fall. As the applicant attempted to push the top pallet into a more secure position, he felt a “crack” and an immediate onset of pain.
A further event occurred on 2 July 2020 when the applicant was manually moving boxes from a shipping container. As he lifted one of the boxes, the applicant alleges that he lost his balance and fell to his side.
A request was subsequently forwarded to the respondent’s insurer for approval for the applicant to undergo a C6-7, C7-T1 anterior cervical decompression and fusion surgery by spinal surgeon, Dr Brian Hsu.
Notices disputing liability for an injury to the applicant’s cervical spine in both events and liability to pay the costs of the proposed surgery were issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Those decisions were maintained following internal review.
The applicant commenced proceedings in the Personal Injury Commission (the Commission) on 21 January 2023 by lodgement of an Application to Resolve a Dispute (ARD). The applicant sought compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the surgery.
The matter proceeded to a conciliation conference and arbitration hearing, following which, Member Wynyard issued a Certificate of Determination on 19 May 2023 giving an award for the respondent.
The applicant brought an appeal and, on 14 August 2023, the President made orders revoking Member Wynyard’s Certificate of Determination and remitting the matter for allocation to another member. The President found that the absence of a transcript of the hearing before Member Wynyard prevented a proper consideration of the grounds of appeal. The matter comes before me pursuant to those orders.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury at his cervical spine in the event on 31 January 2020 pursuant to ss 4 and 9A of the 1987 Act;
(b) whether the applicant sustained an injury at his cervical spine in the event on 2 July 2020 pursuant to ss 4 and 9A of the 1987 Act, and
(c) whether the C6-7, C7-T1 anterior cervical decompression and fusion surgery proposed by Dr Brian Hsu is reasonably necessary as a result of injury for the purposes of s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared before me for conciliation conference and arbitration hearing on 19 October 2023. The applicant was represented by Mr Bruce McManamey of counsel, instructed by Mr Simon Chadwick. The respondent was represented by Mr Joshua Beran of counsel, instructed by Ms Jenny Nicholls. A representative from the insurer was also present.
At the commencement of the conciliation conference, the respondent raised an objection to the admission of a late report from the applicant’s general practitioner lodged under cover of an Application to Admit Late Documents by the applicant on 6 October 2023. After hearing submissions from both parties, a determination was made admitting the report in the proceedings pursuant to r 67(4) of the Personal Injury Commission Rules 2021. Reasons for the determination were given orally and recorded.
The respondent was invited to make an application for leave to lodge further material in response to the late report but declined to do so. The respondent did, however, seek to have introduced into evidence correspondence from the applicant’s solicitor attaching his letter of instruction to the general practitioner requesting the report. That correspondence was admitted in the proceedings without objection.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to the Application to Admit Late Documents lodged by the respondent on 16 March 2023;
(d)    documents attached to the Application to Admit Late Documents lodged by the applicant on 6 October 2023, and
(e)    documents lodged by the respondent on 19 October 2023.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made on 27 July 2022.
The applicant described the first incident on 31 January 2020. The applicant was unloading pallets from shipping containers, which were stacked two pallets high. As the applicant went to remove the first two pallets using his forklift, he noticed the bottom pallet was crushed and that the pallet sitting on top of it was not square and leaning to one side as though it was going to fall. The applicant attempted to push the top pallet into a more secure position. The applicant stated:
“In the course of pushing the pallet, I felt a crack in my neck and pain in my left shoulder and mid and lower back.”
The applicant said he ceased work immediately and was experiencing very significant pain in his neck, left shoulder and back. The applicant was attended by an ambulance at the scene and conveyed to Blacktown Hospital where he underwent X-rays. The applicant was discharged the same day into the care of his general practitioner, Dr Yousaf. The applicant was referred for physiotherapy and prescribed Endone.
The applicant resumed pre-injury duties in March 2020 but was experiencing pain in his neck, left shoulder and back. The applicant took regular breaks to relieve his pain levels.
On 2 July 2020, the applicant was manually removing boxes from a truck at the warehouse. The boxes were approximately 3m in length and 1m in width and weighed approximately 25kg each. As the applicant was lifting a box, he lost balance and fell to his left side. The applicant stated:
“In the course of this, I immediately experienced sharp shooting pain radiating from my neck into my left shoulder. I also, at this time, experienced pain in my mid and lower back radiating down my left leg.”
The applicant continued to work but throughout the following week was experiencing ongoing neck pain, pain in his left shoulder and pain in his mid and lower back radiating down both legs, more marked on the left side. The applicant consulted Dr Yousaf on 10 July 2020 and was referred for an X-ray of his thoracic spine and MRI of his lumbar spine.
The applicant was reviewed by Dr Yousaf on 21 and 24 July 2020 and was referred for physiotherapy. The applicant said he continued to experience pain in his neck during this time.
The applicant returned to employment on 20 August 2020, performing light duties. The applicant said these duties aggravated his neck, left shoulder and lower back.
The applicant was referred to a new physiotherapist on 26 September 2020 and was given exercises and a strengthening programme.
On 6 October 2020, the applicant told Dr Yousaf that he was experiencing pain radiating from his neck into his left shoulder. On 16 October 2020, the applicant told Dr Yousaf that he had ceased work due to unrelenting pain was neck, left shoulder and back. The applicant was referred for a further MRI scan of his lumbar spine and referred to spinal surgeon, Dr Brian Hsu.
The applicant consulted Dr Hsu on 27 November 2020 and was referred for a bone scan. Dr Hsu also later ordered an MRI scan of the left shoulder.
At a review with Dr Hsu on 14 January 2021, the applicant reported pain radiating from his neck into his left shoulder and lower back pain. The applicant was referred for an MRI of his cervical spine and referred to an orthopaedic surgeon for management of his left shoulder condition.
The applicant was seen by orthopaedic surgeon, Dr Nicholas Smith, who recommended an acromioclavicular (AC) joint injection, subject to the opinion of Dr Hsu. Dr Hsu reviewed the applicant with the MRI scan of his cervical spine. Dr Hsu recommended that the applicant undergo a series of injections to his cervical spine.
The applicant underwent an ultrasound guided AC joint injection on 24 February 2021, but later told Dr Smith that his pain had persisted despite the injection. Dr Smith told the applicant that he suspected that the pain in his shoulder was coming from his neck.
The applicant underwent a CT guided injection to his cervical spine on 14 April 2021.
On 25 April 2021, the applicant developed significant spasms in his neck which continued for four days. On 29 April 2021, the pain the applicant’s neck pain became so severe that he attended Ryde Hospital and was prescribed Endone. The applicant underwent a further injection to his cervical spine on 30 November 2021.
The applicant continued to consult Dr Yousaf and was prescribed Targin. The applicant described a temporary relief from the injections and new symptoms of tingling in the hands and fingers of both hands. The applicant described experiencing electric shocks when he moved his neck.
The applicant was referred to a pain management specialist, Dr Alan Nazha. The applicant was prescribed Arcoxia and Norflex and Dr Nazha recommended that the applicant seek approval for a TENS machine and consultation with a chronic pain psychologist. The applicant was provided with a TENS machine on 30 July 2021.
The applicant continued to consult Dr Yousaf and was referred for a further MRI scan. On 20 October 2021, the applicant was reviewed by Dr Hsu, who advised the applicant that one of his options was a fusion of his spine. On 27 October 2021, Dr Hsu recommended the applicant undergo an anterior cervical decompression and fusion.
The applicant was seen by another orthopaedic surgeon, Dr David Duckworth, who agreed that the pain and discomfort the applicant was experiencing at his neck and shoulder was coming from his neck. Dr Duckworth said the applicant should pursue the surgery recommended by Dr Hsu and continue with the pain management program.
The applicant said he had unremitting pain in his neck, which was intolerable and interfering with his ability to lead a normal life.

Treating evidence

Ambulance records dated 31 January 2020, state:
“Pt located sitting on an office chair using his hands to support the weight. As per pt there was a pallet on top of another pallet, the bottom pallet was collasping and pt took the weight of the top pallet (approx 100kg). As pt took the weight he felt a pop in his back with severe pain. As per pt nil hx of back pain/problems. As per pt feels like he cant breathe properly due to the pain.
…
Pt c/o pain to the thoracic region of back, initially clammy, as per pt numbness and tingling down R lower leg, as per pt initially nauseous with dry wrenching and dizziness. Nil obvious deformities, pt has ROM to all limbs. Pt administered pain relief with good effect.”
Examination of the applicant was reported to show,
“thoracic spine pain described as sharp; Right Lower Leg altered sensation numbness & tingling”.
Records from Blacktown Hospital dated 31 January 2020 indicate that the applicant underwent chest and thoracic spine X-rays in relation to “thoracic/back pain”. The notes recorded:
“Patient BIBA after incident at work pushing pallet. Patient experienced pain in mid thoracic region. Pain resulted in decreased depth of breathing. There was associated paraesthesia on right shin. Thoracic and chest X-ray showed no sign of pneumothorax or fractures. Patient had normal upper limb neurological examinations and lower limbs were grossly normal.”
The applicant was discharged home for follow-up with his general practitioner and prescribed Panadeine Forte for pain.
On 3 February 2020, general practitioner, Dr Ayesha Yousaf, recorded a consultation as follows:
“new pt
work related injury
back injury 31/1/20 moving pallets , tried stopping and felt snap in upper back
sat on chair with help of colleagues
Ambulance came and took him to blacktown Hospital
given Endone and had xray
went to shops to get some food
had pain and then collapsed and landed on floor felt confused
ex wife came to help and has been at home
tender left paraspinal T 4-6
no UL symptoms
no parasthesia
no spinal tenderness”
On 10 February 2020, Dr Yousaf noted:
“chest clear but shallow breathing because of pain
reduced range of arm extension”
On 28 February 2020, physiotherapist Ms Annaleise Barton, wrote to Dr Yousaf in relation to the applicant’s “thoracic spine pain”. The applicant was reported to have good range of motion but pain with thoracic rotation, flexion and extension. The applicant was markedly tender through his left thoracic spine and also reported the occasional headache.
In a clinical record dated 2 March 2020, Dr Yousaf recorded:
“Worker's Compensation certificate
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 area at the base of skull
reduced range of rotation
right UL neurological examination normal”
The applicant was referred for radiological investigations of his chest, thoracic spine and cervical spine. The CT scan of the cervical spine was reported to show:
“Cervical spine degenerative changes, with mild canal stenosis C6/7. There is C7 and C8 foraminal narrowing, without definite neural impingement.”
On 18 March 2020, Dr Yousaf noted:
“went to work full day Monday and yesterday
was in pain lunch time was on light duties with breaks
after 4 hrs neck pain and pain behind back of leg
went to work
by mid day was very stiff”
On 24 March 2020, Dr Yousaf noted:
“improved range of motion of right arm
left still limited because of pain”
On 10 July 2020, Dr Yousaf recorded:
“Patient was lifting large boxes at work, unloading a container on 2/7/20
His support colleague had gone home sick on the day
Patient felt a sharp pain during lifting and then back pain started radiating down to left leg
SLR positive both sides
both L5 and T7-8 tender ++
LL normal sensation
gait slow but normal.”
Various referrals were prepared by Dr Yousaf in July following the second incident in relation to work-related “back” pain with left sided shooting leg pain. Thoracic, lumbar and left leg symptoms were noted at various consultations with Dr Yousaf in the second half 2020.
A report from physiotherapist, Dr Tieu Binh Dang, dated 13 August 2020, said the applicant described a twinge in the lower back while turning with a load. The applicant complained of localised pain in left-sided sacroiliac joint region as well as intermittent left buttock and/or groin pain.
Another physiotherapist, Mr Philip Ting, reported on 28 September 2020 that the applicant had lower back pain since 2 July 2020 after lifting a large box awkwardly.
Dr Yousaf prepared a letter of referral to Dr Brian Hsu on 16 October 2020 requesting an opinion and management of thoracic and lower back pain after the injuries on 31 January 2020 and 2 July 2020 respectively.
In an undated letter, Mr Ting reported to Dr Yousaf that the applicant was last seen on 24 October 2020. The applicant had reported alternating, worsening pain between his cervical spine, thoracic spine and lumbar spine/left leg. On examination, the applicant demonstrated varying amounts of pain and restrictions alternatively in his cervical spine and lumbar spine.
On 2 November 2020, Dr Yousaf noted:
“neck stiffness
physio appt last week - was unable to attend due to pain
has been in pain and feeling low
did not go to work on Wed”
On 27 November 2020, Dr Hsu reported:
“Troy does demonstrate significant back pain both in the thoracic, and lumbar region. His work injury has definitely contributed to these injuries and despite previous non-operative treatments, he continues to experience significant back pain. I have arranged for him to undergo a bone scan of the thoracic and lumbar region to further delineate the pathology and I plan to review him after the investigation.”
A clinical note recorded by Dr Hsu on the same date made no reference to cervical symptoms.
A letter of referral from Dr Yousaf to physiotherapist Mr Rabie Abou Fakher, dated 30 November 2020, requested treatment as appropriate for:
“… significant left side muscle stiffness paraspinal along cervical and thoracic spine and left lower leg symptoms.”
On 9 December 2020, Dr Hsu reported that the applicant had undergone a bone scan of the thoracic and lumbar spine. Dr Hsu stated:
“On clinical examination today he certainly demonstrates significant signs and symptoms related to the left shoulder. There is little doubt that he is experiencing some intra-articular pathology in the left shoulder.”
Dr Hsu arranged for the applicant to undergo an MRI scan of the left shoulder. That investigation was reported to show minor infraspinatus tendinosis with overlying bursitis, mild acromioclavicular joint osteoarthritis and a Type I SLAP tear in the posterosuperior labrum.
In a response to questions from the insurer, dated 29 December 2020, Dr Hsu gave a diagnosis of “discogenic back pain and neck pain, shoulder pain”.
In a report dated 14 January 2021, Dr Hsu noted:
“His most recent MRI scan of the left shoulder does demonstrate significant intra-articular pathology that could be related to some of his symptoms in the periscapular region. I have arranged for him to undergo an MRI scan of the cervical spine and also an orthopaedic opinion regarding the left shoulder findings.”

The applicant was referred to orthopaedic surgeon, Dr Nicholas Smith, by Dr Yousaf on 27 January 2021. The referral sought,
“…opinion and management of left shoulder pain associated with neck pain and thoracic pain after a work cover injury.”
Referral from Dr Yousaf to a physiotherapist, Kathryn Barry, on the same date sought,
“…opinion and management of left paraspinal cervical and upper thoracic back pain sustained after a work injury.”
An MRI scan of the cervical spine performed on 28 January 2021 was reported to show:
“Degenerative changes are seen in cervical spine at C6/7 level where there is impingement of traversing left C7 nerve root.”
In a report dated 17 February 2021, Dr Smith took a history as follows:
“He injured his shoulder when he was unloading a container in January 2020 and one of the pallets started falling. He attempted to block the fall of the pallet, felt a snap in his back and since then has also had anterior shoulder pain.”
Dr Smith said the applicant’s potential pain generators included his cervical spine, SLAP lesion and AC joint. Dr Smith recommended an AC joint corticosteroid injection.
On 18 February 2021, Dr Hsu reported,
“It appears that Troy does have significant left shoulder pathology and is due for a shoulder injection as the next step in his treatment for his symptoms around the shoulder. Some of his symptoms are likely related to his cervical spine which correlates with the radiographic findings on the current MRI scan. I have recommended trialling a cervical foraminal injection but I would like him to wait until his shoulder injection has been completed first before proceeding with the cervical injections.”
The applicant underwent the AC joint injection on 24 February 2021. On the same date, Dr Yousaf referred the applicant to pain specialist, Dr Alan Nazha, for opinion and management of neck pain since a workplace injury nearly 12 months earlier. Dr Yousaf noted:
“had appt with Dr Hsu
bulging disc in neck
lower back CT scan
Dr Nicholas - shoulder , complete detachment of muscle and tear
recommended steriod injection shoulder at Norwest Private Hospital that pt is having today and 2 injections in neck with space of 2 weeks
review by Dr Nicholas in 2 weeks and will have neck injection at the same planned already for bulding disc
work involves forklift needs neck extension”
At a review on 22 March 2021, Dr Smith noted that the AC joint corticosteroid injection made no difference at all. Dr Smith said he would await the recommendation of Dr Hsu regarding the applicant’s neck.
On 24 March 2021, Dr Yousaf noted:
“neck pain - bulging discs
has been told cortisone injection for neck might help
electric shocks going down from lower back to left leg
neck stiffness and sore ness associated
…
12 days ago, got up from bed, sore neck and then reduced movement for 3 days
used heatpack and painkillers - pandeine forte, uses prn”
A CT guided cervical spine injection was performed at C3-4 on 14 April 2021. The applicant was noted to have had a vasovagal reaction and so no injection at C4-5 was performed.
Ambulance records dated 29 April 2021 indicated that the applicant had woken the previous morning with neck and back pain. The applicant had been to his general practitioner who prescribed Panadeine Forte and recommended a TENS machine. The pain had worsened the previous night, impacting mobility. The applicant said he had the same pain previously but it was worse this time.
A discharge referral note from Ryde Hospital also dated 29 April 2021 indicated that the applicant had presented with neck pain and decreased mobility due to pain. The applicant was given analgesia and monitored.
An image guided left C4-5 foraminal injection was performed on 30 April 2021.
In response to questions from the insurer on 17 May 2021, Dr Smith said the symptoms in the applicant’s left shoulder were probably coming from his SLAP lesion and there may be some contribution of symptoms from the neck for which the applicant was seeing Dr Hsu. Dr Smith said the symptoms were not secondary to the thoracic problem but may have occurred during the same injury at work.
Dr Hsu responded to questions from the insurer on 2 June 2021, diagnosing discogenic back pain, neck pain and shoulder pain. Dr Hsu recommended physiotherapy and further investigations.
In a report to Dr Yousaf, dated 23 June 2021, Dr Hsu stated:
“Unfortunately the cervical spine injections only gave marginal relief of symptoms and currently his symptoms are still quite significant. He has an appointment with his pain specialist next week and I have encouraged him to proceed and continue with his current line of non-operative treatment. If his symptoms become worse even with non-operative treatment.”
Pain specialist, Dr Nazha, prepared a report for Dr Yousaf on 25 June 2021, in which he recorded a history as follows:
“Troy had a work-related injury in January 2020 in his capacity as a forklift driver. I understand two pallets were stacked on top of each other and he tried to shift one of them when he noticed a sudden ‘crack’ and he had fallen to the ground. He was taken by ambulance to Blacktown Hospital where they initially investigated him and did not note any red flags. He had taken one month off work due to the persistent cervical pain. Approximately three months after returning to work, he was lifting a heavy box, which he stated was a two-man job and once again had profound onset of severe pain to his cervical spine as well as his left shoulder. He has not been able to return to work since.”
Dr Nazha recorded that the cervical pain was bothering the applicant the most. Although the applicant did have left shoulder pain, this did not appear to be neuropathic nor did it appear to be in the distribution of C5. On examination, Dr Nazha found profound restricted range of motion in the cervical spine with fear avoidance behaviour. The applicant was exquisitely tender to palpation of the lower cervical spine. Dr Nazha formulated a treatment plan. Approval for a TENS machine was subsequently sought.
MRI of the cervical spine was performed on 24 August 2021 and reported to show:
“Multilevel cervical spine degenerative changes, notably C6/7, with broad based disc bulging more obvious to the left of midline, mildly flattening the left side of the cord (no myelomalacia). There is left C7 foraminal narrowing. Irritation of the origin of the C8 nerve roots at this level cannot be entirely excluded. Minor C7/T1 degenerative disc disease without definite neural impingement.”
The applicant was referred back to Dr Hsu with significant neck pain, disc bulge at C8 and bilateral radiculopathy in the C8 distribution on 30 August 2021. Following a telehealth consultation on 20 October 2021, Dr Hsu reported:
“His pain management has not been extremely successful and his symptoms are still quite significant. A recent MRI scan of the cervical spine does demonstrate significant disc pathology at C6-7 and C7-T1.”
Approval for a C6-7, C7-T1 anterior cervical decompression and fusion was requested on 29 October 2021.
On 3 November 2021, Dr Hsu reported to Dr Yousaf,
“His cervical spine symptoms are certainly more severe and despite previously successful injections at C6-7 and C7-T1, he continues to demonstrate significant cervical radiculopathy with neck pain, shoulder pain and upper limb pain as well.
I have discussed with him his further treatment options and surgery is one of the options which will be an anterior cervical decompression and fusion at C6-7 and C7-T1.
His other option would be to continue with chronic pain management to manage his symptoms.”
The applicant was seen by shoulder and elbow surgeon, Dr David Duckworth on 29 November 2021. Dr Duckworth took a history as follows:
“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 has had ongoing problems affecting his neck and shoulder since.”
Dr Duckworth gave the opinion:
“Troy appears to have the main pathology today affecting his neck rather than his shoulder. I would be interested to see the MRI scans of his shoulder. At this stage l have recommended he continue with the surgical plans under the care of Dr Hsu and I would be happy to see him again following his surgery to see how much of the pain is coming from his shoulder. He should also continue to attend the pain clinic.”
Records from Ryde Hospital, dated 20 March 2022, noted:
“Neck pain sustained from work place accident 2y ago
As per pt, C7/T1 disc prolapse requiring spinal fusion surgery
Pt known to Dr Shu Norwest Orthopaedic surgeon
Neck pain maximal at the base of neck currently
Onset of pain 2/7 worsening at present
Pain described as 9/10
Pain radiates down back”
Dr Hsu prepared a report for the applicant’s solicitor on 10 August 2022, in which he was asked whether the applicant sustained an injury to his cervical spine on 2 July 2020. Dr Hsu responded:
“I reviewed Mr Shipley first on November 27, 2020 who has been experiencing significant periscapular, thoracic and lumbar back pain. He sustained the injury while lifting heavy objects at work. It appears that Troy does have significant left shoulder pathology which he has seen Dr Duckworth for who's recommended managing the cervical pathology first. An MRI scan of the cervical spine does demonstrate significant disc pathology at C6-7 and C7-T1. His cervical spine symptoms are certainly more severe and despite previously successful injections at C6-7 and C7-T1, he continues to demonstrate significant cervical radiculopathy with neck pain, shoulder pain and upper limb pain as well. I have discussed with him his further treatment options and surgery is one of the options which will be an anterior cervical decompression and fusion at C6-7 and C7-T1. The nature of his employment as well as the description of the two work injury sustained I believe are the main contributing factors to his cervical spine pathology. I am unaware of any pre-existing conditions.”
Dr Hsu reported that the applicant had exhausted non-operative management through injections and pain management. Dr Hsu said surgical intervention was now necessary.
The applicant’s solicitor wrote to Dr Yousaf on 3 October 2023. In the letter requesting a report, the solicitor wrote that the applicant had given instructions that he experienced neck pain since the initial injury on 31 January 2020 which had continued and, following the subsequent incident, culminated in the referral to Dr Hsu. The letter noted that the applicant said he did not make repeated complaints about his persisting neck pain because his principal problem at time was his thoracic and lumbar pain. The cervical spine symptoms did not materially deteriorate until the beginning of 2021.
In her report in response, Dr Yousaf said that the first injury resulted in thoracic back pain and associated neck pain. The applicant was having neck pain with cervicogenic headaches, limited range of neck movements and numbness of the right arm. A CT of the cervical spine was arranged which showed degenerative changes and foraminal narrowing at C7 and C8. In the second injury, there was a new onset of lower back pain radiating to the legs and an exacerbation of thoracic back pain. Dr Yousaf said the applicant reported neck stiffness on 2 November 2020 but had complained to his physiotherapist previously. Dr Yousaf gave the opinion:
“In my opinion, the patient started having neck problems since injury in Jan, 2020 and later exacerbation of neck pain and stiffness after second injury that was not very obvious early, possibly due to back and thoracic pain being major sources of pain. This became clear of his further investigations and assessment by Dr Hsu and Dr Smith.
I agree with Dr Brian Hsu’s opinion regarding initial injury being the cause of neck problems and subsequent injury causing exacerbation of the neck injury. These two injuries were clearly at work and were due to lifting at work.
… There are no other known contributors of his neck pain.”

Dr Bentivoglio

The applicant relies on a medico-legal report prepared by neurosurgeon, Dr Peter Bentivoglio, dated 9 May 2022.
Dr Bentivoglio took a history of the injury on 31 January 2020 in which the applicant reported neck pain and left shoulder pain trying to reposition a pallet on a forklift. The applicant reported that he went to Blacktown Hospital and underwent X-rays of his neck. He saw his local doctor the next day complaining of left-sided neck pain but no arm pain.
The applicant reported a second injury on 2 July 2020 while unloading boxes in which he developed neck pain going into the left shoulder again. The pain was similar to the injury on 31 January 2020. The applicant had numbness or pins and needles in both hands.
Dr Bentivoglio noted the radiological investigations of the cervical spine and noted that the applicant had undergone physiotherapy, cortisone injections and referral to a pain clinic. Dr Bentivoglio diagnosed:
“Mr Shipley is a gentleman with neck pain secondary to multilevel degenerative disease with discogenic cervical pain, worse at the C6/7 level but also disc bulges at the C7/T1 level. There is no true neuropathic pain and no evidence of a radiculopathy.”
Dr Bentivoglio said the applicant had an exacerbation of pre-existing degenerative disease, which had been asymptomatic before the injury on 31 January 2020. Dr Bentivoglio said,
“He undoubtedly had pre-existing degenerative disease shown on the CT scan about a month after the injury.”
Dr Bentivoglio said the injury on 2 July 2020 reignited the neck pain going into the left shoulder.
In response to a question as to whether the surgery proposed by Dr Hsu was reasonably necessary as a result the injuries, Dr Bentivoglio responded:
“The proposed surgery done by Dr Brian Hsu is to do a C6/7, C7/T1 anterior cervical decompression and fusion. This is to help discogenic pain in his cervical spine. Surgery done for discogenic neck pain or back pain, the results are very difficult to predict. I would give him a 60 to 70% chance of some improvement in his neck symptoms. That means there is a 30 to 40% chance of no improvement at all.
…
From the point of view of his cervical spine he has had extensive conservative treatment. He has been to physiotherapy. He has had cortisone injections both for his shoulder and his neck. He has had long-term pain medication. He either has to live as he is now, which I believe is unsatisfactory or he considers having the surgery that Dr Hsu has recommended, understanding fully well that there is only a 60 to 70% chance of some improvement in his symptoms. I doubt it will get him back to work in the work that he was doing and probably he will never get back to work at all.”

Dr Casikar

The respondent relies on medico-legal reports prepared by consultant neurosurgeon, Dr Vidyasagar Casikar, dated 17 February 2022 and 3 March 2023.
Dr Casikar took a history of the injury on 31 January 2020 that was consistent with the history recorded by Dr Bentivoglio. The applicant reported developing severe pain in the neck and left shoulder when he tried to push a pallet with his hands. Similarly, on 2 July 2020 the applicant reported severe pain in the neck and shoulder during the process of manually unloading a container.
Dr Casikar made a diagnosis of constitutional incidental cervical spondylosis and soft tissue injury to the left shoulder. Dr Casikar stated:
“Mr Shipley's description of the injury and his subsequent symptoms of pain in the left shoulder and a clinical examination which shows that movements of the left shoulder are significantly reduced, suggest the main injury is a soft tissue injury to the left shoulder. A neurological examination of the upper limbs is completely normal.
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. I am very surprised that Dr Duckworth does not want to treat the shoulder problem which indicates a tear in the shoulder.”
Dr Casikar expressed the view that the applicant’s shoulder should be treated first and said he saw no evidence to support the surgery proposed by Dr Hsu:
“Mr Shipley has constitutional degenerative disease of the cervical spine. He has not had any previous episodes of symptoms directly related to the cervical spondylosis as I have indicated above. His neck pain is due to soft tissue injury to the shoulder. With appropriate treatment of the shoulder his symptoms and neck pain would also resolve and he would be able to get back to his pre-injury duties. The probability of his getting back to his pre-injury duties after a cervical fusion would be very slim.”
Dr Casikar further opined:
“There is evidence of a pre-existing condition, namely cervical spondylosis. In my opinion this condition has not been aggravated by his employment. The neck pain is in my opinion due to the shoulder condition and not due to the aggravation of the cervical spondylosis. There is no logical evidence to support that the workplace incident has aggravated a cervical spondylosis.”
In his supplementary report dated 3 March 2023, Dr Casikar, maintained his previous opinion:
“I do not agree with the diagnosis provided by Dr Hsu. His diagnosis seems to be based entirely on the radiological findings. Neck pain is common to both shoulder problem and neck issues. In the absence of clinically verifiable neurological finding, in my opinion his neck pain is due to soft tissue injury to the shoulder.”
Dr Casikar said the applicant did not require ongoing treatment of his cervical spine as he did not have a cervical spine injury.

Applicant’s submissions

The applicant identified the issues in dispute as being whether he sustained an injury to his cervical spine in either injurious incident and secondly, whether the surgery proposed was reasonably necessary treatment for his neck condition.
The applicant referred to his statement evidence in which he described the first incident. The applicant was pushing a pallet into a more secure position. The applicant said it was conceivable that this mechanism would place a strain on his arms and neck. The applicant’s evidence was that he felt a crack in his neck, although he conceded that the contemporaneous medical evidence referred to a crack at the upper back. The applicant submitted that, in all circumstances, it may not have been easy for him to be precise as to the location of the crack.
The applicant also referred the Commission to his statement evidence regarding the second incident and his description of a sharp shooting pain from the neck into the shoulder following that event.
The applicant referred to the clinical records of his general practitioner, Dr Yousaf and, in particular, the record of 10 February 2020 in which reduced range of arm extension was noted. In the absence of other explanation, the applicant submitted that this symptom was potentially related to the neck. No allegation of injury to the shoulder had been made at this time.
The applicant referred to the clinical record of 2 March 2020 in which neck pain was first reported. The applicant was referred for a CT scan in respect of neck pain since the injury at work. Signs suggestive of radiculopathy including, right C6 pins and needles, were recorded suggesting some significance to the injury.
Pain and stiffness at the neck and arm following the return to work were recorded on 18 March 2020. The clinical records suggested some improvement in the applicant’s condition but did not indicate a complete resolution of symptoms.
The applicant conceded that following the second injurious event, the clinical records predominantly recorded back symptoms. Neck stiffness was noted in November 2020 without any suggestion of a new causative event. On 30 November 2020, the applicant was referred for a CT scan of the cervical spine. The applicant submitted that this referral clearly indicated that his general practitioner considered that the neck was part of the problem at the time.

The applicant was referred to Dr Brian Hsu and the neck investigated through MRI scan. On 24 February 2021, it was noted that the applicant had a bulging disc in his neck. From that point onwards, neck symptoms were a clear feature of the clinical material.
The applicant submitted that the clinical notes were consistent with what Dr Yousaf recorded in her report to the applicant’s solicitor dated 4 October 2023. The applicant submitted that Dr Yousaf was the only practitioner who had seen the applicant from the outset. Dr Yousaf gave the opinion that there was an injury to the cervical spine in the first incident which was exacerbated by the second incident. The delayed reporting of symptoms was possibly due to the prominence of the applicant’s back pain. With further investigation, it became clear that the neck was the source of the applicant’s pain.
The applicant submitted that there was a simple causal chain which was reasonably well documented in the clinical notes. There was nothing in that material to raise any question as to the accuracy of the applicant’s evidence.
The applicant acknowledged that the first referral to Dr Hsu did not identify the cervical spine as an issue but rather the back. The applicant submitted that this was consistent with Dr Yousaf’s evidence that the back initially appeared to be the more significant matter.
The applicant noted that Dr Duckworth, a shoulder specialist, considered that the applicant’s symptoms originated from the neck rather than the shoulder. The history given to Dr Duckworth was an onset of symptoms following work events. The applicant submitted that no other history or cause for the cervical spine symptoms had ever been recorded.
The applicant referred to the reports of Dr Hsu and submitted that, right from the beginning, he considered that neck pain was part of the constellation of symptoms.
The applicant submitted that the Commission would be comfortably satisfied that he sustained an injury to his cervical spine in January 2020 and that that condition was aggravated in July 2020. The applicant submitted that the injuries were sustained in frank incidents pursuant to s 4(a) of the 1987 Act and employment was a substantial contributing factor to the injures pursuant to s 9A of the 1987 Act.
With regard to the proposed surgery, the applicant submitted that Dr Hsu initially took a conservative approach. The applicant was referred for pain management and other treatment modalities before surgery was recommended. Pain management was not successful and the applicant’s symptoms remained significant. MRI scans showed significant disc pathology.
The applicant submitted that Dr Hsu’s recommendation for surgery was supported by Dr Bentivoglio. Dr Bentivoglio recorded the same history that was set out in the applicant’s statement evidence. On examination, he found restricted range of movement and signs consistent with radiculopathy. Dr Bentivoglio noted that surgery was proposed to help with discogenic pain. Although the results were difficult to predict, he estimated a 60 to 70% chance of improvement. Dr Bentivoglio noted the long period of conservative treatment.
Referring to the principles set out in Bartolo v Western Sydney Area Health Service[1] and Diab v NRMA Ltd,[2] the applicant submitted that there was no suggestion that the fusion surgery was not conventional medical treatment. Although the procedure was not cheap, it was within the usual range for that type of treatment. Other treatment modalities had been tried and failed. The only alternative to treatment was a lifetime of ongoing, expensive pain management. While there was no guarantee of improvement, that was not the applicable test. The applicant submitted that the Commission would accept that the treatment should be afforded to him.
[1] [1997] NSWCC 1.
[2] [2014] NSWWCCPD 72.
Referring to Dr Casikar’s reports, the applicant noted that his examination found reduced range of movement. Dr Casikar found the applicant had degenerative pathology at the cervical spine but did not engage with the onset of symptoms following the workplace injury or the mechanism of injury. Although Dr Casikar suggested that the shoulder was the cause of the applicant’s pain, the shoulder was outside Dr Casikar’s area of specialty as a neurosurgeon. The applicant’s shoulder surgeon, Dr Duckworth, had found the opposite.

Respondent’s submissions

The respondent submitted that it was too often forgotten that degenerative conditions could run concurrently with and be unrelated to a workplace injury. The temporal coincidence of symptoms was not determinative.
The medical evidence before the Commission showed a history which had changed over time. The respondent noted, for example, that Dr Duckworth took a history of an explosion of pain in the applicant’s neck down his back and into his left shoulder. Dr Bentivoglio also took an incorrect history of a crack in the applicant’s neck with pain to his left shoulder and lower back. Although that history was consistent with the applicant’s statement evidence, that statement was prepared years after the injuries. The applicant’s submission that there had been a consistent history was incorrect.
The most contemporaneous account of the January 2020 injury was contained in the ambulance records made on the same date. The applicant described a pop in his back with pain to the thoracic region. It could be assumed that the ambulance officers knew the difference between the thoracic and cervical spines.
The respondent submitted that the Blacktown Hospital records were consistent with the ambulance records. The applicant was referred for an X-ray of the thoracic spine not the cervical spine. One would expect that if the applicant had reported any symptoms in the cervical spine, he would have been referred for investigation of the cervical spine. The applicant was recorded to have complained of mid thoracic pain rather than upper thoracic pain. Examination of the applicant’s shoulder revealed no problems.
The respondent submitted that there was no reference to neck or cervical pain in the hospital records but a clear record of thoracic and lower back pain. The history given to Dr Duckworth and Dr Bentivoglio was clearly incorrect.
The respondent noted that the early physiotherapy reports and clinical notes of Dr Yousaf made no mention of neck symptoms.
The respondent submitted that the mechanism of injury on 31 January 2020 did not clearly indicate involvement of the cervical spine.
The records that followed the July 2020 event contained no reference to the neck. The respondent submitted that it was well accepted that clinical records can be unreliable but noted that in this case they consistently failed to record any injury to the cervical spine on a contemporaneous basis.
The respondent noted that the referrals and investigations following the second incident all related to back pain.
The respondent observed that Dr Hsu did not record a history of injury for the cervical spine. Although he identified neck pain he did not say what the cause was. The clinical record of Dr Hsu’s first consultation with the applicant referred generally to injury to the thoracic and lumbar spine while lifting heavy objects at work. In his letter to the applicant’s solicitor, Dr Hsu expressed the view that the nature of the applicant’s employment as well as the two injuries were the main contributing factors to the cervical spine pathology. The respondent noted that no claim had been made for an injury due to the nature and conditions of the applicant’s work generally.
The respondent noted that a history of a snap in back rather than the cervical spine was also given to Dr Smith.
From early 2021 onwards there was a clear record of symptoms in the cervical spine, however, this was more than a year since the first injury and more than six months following the second injury.
The respondent submitted that the history provided by the applicant to his doctors changed over time. What started as pain in the back ended up being an explosion running from the neck to the legs. Clearly the history taken by the treating doctors was problematic.
The respondent noted that the first reference to neck symptoms after the second injury was in November 2020. The applicant had been referred to further physiotherapy around that time. The handwritten notes of the physiotherapist referred only to lumbar and thoracic spine pain.
Although Dr Yousaf had said that the applicant had complained of neck symptoms to his physiotherapist, such complaints were not apparent from the evidence before the Commission.
The respondent submitted that Dr Yousaf’s most recent letter to the applicant’s solicitor was not consistent with her own records or the applicant’s statement evidence. In suggesting that the cervical symptoms were not very obvious early due to the predominance of lumbar and thoracic pain, Dr Yousaf was simply agreeing with the theory proposed in the letter of instruction.
Turning to the expert evidence, the respondent noted that Dr Bentivoglio took a history that was not supported by the contemporaneous evidence. Dr Bentivoglio referred to X-rays of the neck being taken at the hospital after the first incident, which was incorrect. There was no evidence of the applicant reporting neck pain to his general practitioner the next day. The respondent submitted that there was no fair climate for the acceptance of his opinion.
Dr Bentivoglio found, consistently with the opinion of Dr Casikar, that the applicant had pre-existing degenerative change at the cervical spine. The respondent submitted that there was no evidence of an increase or exacerbation of symptoms contemporaneously to the work incidents.
The respondent observed that Dr Bentivoglio considered the prospects of a favourable outcome from surgery were limited. This was said to be consistent with Dr Casikar’s opinion as to the likely benefits of surgery.
Dr Casikar was of the opinion that the applicant’s main problem was his shoulder. The applicant’s neck pain was due to shoulder pathology. The presence of shoulder pathology had been confirmed on radiological investigation.
The respondent submitted that in the absence of contemporaneous evidence of neck symptoms, the Commission would accept Dr Casikar’s opinion that there was no evidence of an aggravation of the degenerative pathology at the applicant’s cervical spine.
The respondent submitted that the applicant bore the onus of demonstrating that he sustained an injury in either workplace event. The applicant had a constitutional condition which was degenerative in nature. No pathological change due to the work incidents could be identified from the contemporaneous treating evidence. The respondent submitted that the Commission would not be satisfied that the applicant sustained an injury to the cervical spine in either event.
With regard to the question of whether the proposed surgery was reasonably necessary medical treatment, the respondent submitted that the Commission would give more weight to the opinion of Dr Casikar. There was evidence of symptoms coming from the applicant’s shoulder. This constituted clear evidence that the surgery was not appropriate and alternative treatment was available.
The respondent observed that the costs of the procedure were significant. Real questions were raised about effectiveness of the treatment.
The respondent submitted that a weighing of the evidence would lead the Commission to the conclusion that the surgery was not effective or appropriate treatment.

Applicant’s submissions in reply

The applicant submitted that the respondent’s submissions were premised upon an assumption that simply because treating reports did not mention the neck there was no neck pain.
The reports in question were dealing with treatment being funded by the insurer. The insurer was not funding treatment for the cervical spine. The specialist practitioners were constrained by the referrals made to them.
The applicant submitted that Dr Yousaf was the only doctor not constrained by the terms of a referral. Dr Yousaf had given a clear opinion in support of the applicant’s case.
The applicant noted that a lot had been made of the original hospital notes. A feature of the hospital notes was that there was no examination of the cervical spine. This was surprising given the reports of pain in upper back. The hospital records also confirmed that the applicant’s pain was being controlled by Endone, morphine and methoxyflurane. The history being recorded was taken from someone who was heavily drugged.
Neck symptoms were first reported four weeks later, which the applicant submitted was a fairly short period of time.

FINDINGS AND REASONS

Injury

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is defined in s 4:
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,”
In order for compensation to be payable, the applicant must also satisfy s 9A of the 1987 Act, which provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f)    the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
It is clear on the medical evidence before the Commission that the applicant has degenerative pathology at his cervical spine. There is a dispute as to whether that pathology was aggravated in either the frank incident on 31 January 2020 or the subsequent incident on 2 July 2020. There is nothing in the evidence before the Commission to suggest that the pathology at the applicant’s cervical spine was symptomatic prior to 31 January 2020.
The applicant has provided statement evidence that is consistent with the histories provided by him to the medico-legal experts, Dr Bentivoglio and Dr Casikar, that he experienced a sudden onset of very significant pain to his cervical spine in both events.
As noted by the respondent, that history is not borne out in the contemporaneous evidence.
The most contemporaneous accounts of the event on 31 January 2020 are those set out in the ambulance and hospital records made on same date. Those records consistently described complaints of pain in the thoracic region of the back as well as some altered sensation in the right leg. There was no reference to symptoms in the applicant’s cervical spine and the hospital records suggested that the applicant’s upper limb neurological examinations were normal. There is no evidence of any radiological investigations of the cervical spine at the hospital, as had been reported to Dr Bentivoglio.
Similarly, the clinical notes of the applicant’s first post-injury consultation with his general practitioner, Dr Yousaf, described an injury to the upper back not the neck. The applicant was initially noted to have no upper limb symptoms although a reduced range of arm extension was noted a week later on 10 February 2020.
There was also no reference to cervical spine symptoms in the report of the applicant’s physiotherapist, Ms Barton dated 28 February 2020. Consistently with the previous medical records, Ms Barton’s treatment focused on the applicant’s thoracic spine.
It is of some note, however, that the applicant did report occasional headaches to Ms Barton. In the more recent evidence before the Commission, headaches are noted to have been a feature of the applicant’s cervical symptoms.
Neck symptoms were clearly described in the clinical notes made by Dr Yousaf approximately one month after the incident on 2 March 2020.
The applicant has not, himself, accounted for this delay in cervical spine symptoms being recorded in the evidence. There is, however, an explanation in Dr Yousaf’s clinical notes. Dr Yousaf recorded that initially the neck pain was “not much” but, by 2 March 2020, the applicant was experiencing cervicogenic headaches which were worse with walking. The applicant described limited range of neck movements as well as pins and needles and numbness in the right thumb area.
The clinical note made on this date confirms that the applicant did not have these symptoms prior to the work injury.
The applicant was referred for a CT scan of the cervical spine which showed pathology, particularly at the lower part of the cervical spine.
The applicant continued to report cervical spine symptoms following his return to work. On 18 March 2020, Dr Yousaf recorded neck pain and stiffness. Reduced range of motion in the arms, limited due to pain was also noted on 24 March 2020.
Analysis of the treating evidence in the period after the first work incident, therefore, reveals a new onset of cervical spine symptoms for which treatment and radiological investigation was sought within around one month of the work incident. Although cervical spine symptoms were not recorded immediately, there were indications of symptoms later associated with the cervical spine, such as headaches and reduced range of movement in the arms within a few weeks of the incident. The indication given in Dr Yousaf’s clinical notes that the symptoms in the cervical spine commenced with the incident but were not initially prominent potentially accounts for the delay in reporting of symptoms. It is also relevant to note that the applicant’s thoracic spine pain had been treated initially with strong analgesic medication, with the potential to mask symptoms.
I do accept the respondent’s submissions that the medical professionals involved in the applicant’s care immediately after the work injury would have been capable of distinguishing between the cervical spine and the thoracic spine. However, I also accept that it may not have been so easy for the applicant to make the same distinction. Although the initial pop or crack was contemporaneously described as being to the upper back or thoracic spine, I accept that this region is proximate to the lower end of the cervical spine where Dr Hsu now seeks to perform surgery.

The respondent quite correctly submits that the temporal coincidence of cervical symptoms and the work incident is not of itself sufficient to demonstrate injury. It is, however, a relevant “piece of the puzzle”.
The respondent has also submitted that nothing in the mechanism of the incident on 31 January 2020 suggested the involvement of the cervical spine. I am unable to agree. The applicant has provided evidence that he was moving pallets stacked two high and was using his arms to push the higher pallet into a more secure position when he experienced a sudden onset of pain. I see no reason why, if such a mechanism, involving significant force and use of the upper limbs at a height, was capable of causing a sudden onset of thoracic symptoms, it could not also account for an onset of lower cervical symptoms.
I am not assisted in determining whether there was an injury to the applicant’s cervical spine in the 31 January 2020 event by the applicant’s own evidence or the medico-legal experts. While I do not suggest that the applicant has sought to deliberately mislead the Commission or the experts, the fact remains that those histories are not corroborated by the treating evidence and I find them and the expert opinions on which they are based unreliable. I am not satisfied that, if the applicant had immediately experienced very significant pain in his neck as claimed, that this would not have been recorded in either the ambulance, hospital or general practitioner’s records of the applicant’s symptoms at that time.
I also note Dr Casikar’s opinion that there has not been any injury to the applicant’s neck at all and that symptoms arose from shoulder pathology. That opinion fails, however, to engage with the mechanism of injury, the recording of neck symptoms in the clinical material in March 2020, the radiological investigations of the cervical spine ordered by the general practitioner and the absence of any suggestion of shoulder symptoms or pathology at that time.
I am also not satisfied on the face of Dr Hsu’s reports that he had an accurate history of the events in January or July 2020. Dr Hsu’s explanation of the causal relationship to employment is vague, referring in general terms to “lifting at work”. While a treating specialist would not ordinarily be expected to provide a detailed history or explanation of causation, this lack of specificity means I am unable to place great weight on this aspect of Dr Hsu’s reports.
The histories recorded by Dr Nazha and Dr Duckworth are similarly at odds with the more contemporaneous records.
I am, however, assisted by the report of Dr Yousaf. Dr Yousaf has seen the applicant regularly since the time of the first incident. Dr Yousaf has, in her most recent report for the applicant’s solicitor, provided an opinion that is consistent with her own clinical notes. Although that opinion is also consistent with the letter of instruction from the applicant’s solicitor, the fact that it accords with the applicant’s contemporaneous reporting of an immediate onset of some neck pain, increasing over the course of the month following the work incident, is significant. I do not accept that Dr Yousaf has simply adopted the solicitor’s theory of what happened in relation to the first event. There was a proper basis for Dr Yousaf’s opinion that the incident in January 2020 was the initial cause of the applicant’s neck problems.
Weighing all the evidence, whilst I acknowledge that minds might differ, I do feel an actual sense of persuasion that the applicant sustained an injury to his cervical spine in the event on 31 January 2020.
Having regard to the time and place of the incident, the nature of the employment activities the applicant was performing at the time and the absence of any previously reported cervical spine symptoms, I am further satisfied that employment with the respondent was a substantial contributing factor to the injury.
I am satisfied that the applicant sustained a compensable injury to his cervical spine pursuant to ss 4(a) and 9A of the 1987 Act on 31 January 2020.
A separate question arises as to whether the applicant’s cervical spine was injured in the event on 2 July 2020.
Once again, in relation to this incident, the applicant’s statement evidence and the histories he provided to the experts and some of his treating specialists are difficult to reconcile with the contemporaneous treating material.
The applicant’s evidence is that in the event on that date, he immediately experienced sharp, shooting pain radiating from his neck into his left shoulder, which continued after the event. None of the most contemporaneous treating evidence, however, refers to cervical spine symptoms in connection with this event.
Dr Yousaf recorded on 10 July 2020 that the applicant felt back pain radiating to the left leg. Tenderness at the lumbar and lower thoracic spine was noted. Dr Yousaf made a number of referrals over the course of the following month, including a referral to Dr Hsu, in which only thoracic, lumbar and left leg symptoms were noted.
The first suggestion of cervical spine symptoms appeared in an undated letter prepared apparently sometime after 24 October 2020 by physiotherapist, Mr Ting. Mr Ting noted the applicant reported fluctuating pain and restrictions in the cervical spine and lumbar spine. Consistently with Mr Ting’s report, Dr Yousaf noted neck stiffness and pain in a consultation on 2 November 2020. Stiffness in the paraspinal muscles along the cervical spine was noted by another physiotherapist, Mr Fakher, on 30 November 2020. Symptoms at the left shoulder, later attributed to the applicant’s cervical spine pathology, were first noted and investigated by Dr Hsu in early December 2020.
The first reference to cervical spine symptoms in the treating evidence following the second work incident was therefore recorded more than three months after the event. Importantly, in none of the early records of cervical spine symptoms was there any suggestion that the symptoms had commenced or significantly increased with or as a result of the event on 2 July 2020. In fact, contrary to what is recorded by the applicant in his statement evidence and what was disclosed to the experts in this case, it appears the applicant’s cervical spine symptoms did not materially worsen until several months after the event.
Dr Yousaf has, in her report for the applicant’s solicitor, commented that any exacerbation of neck pain and stiffness after second injury was not very obvious early on. Dr Yousaf suggested that this was possibly due to back and thoracic pain being more significant sources of pain.
Unlike the January 2020 injury, Dr Yousaf’s opinion in relation to the July incident does not find direct support in any contemporaneous reference in the clinical records. Rather, her opinion appears to be speculative, picking up on the suggestion that this was a possible explanation for the delay in the solicitor’s letter. The explanation is also difficult to reconcile with the applicant’s own statement evidence of an immediate onset of sharp shooting pain.
The applicant has submitted that the fact that symptoms were not recorded in the contemporaneous records did not mean they were not there or were not reported. It is trite to say that clinical records must be approached with caution[3] as busy doctors sometimes misunderstand or incorrectly record histories when their major concern is with treatment.
[3] See Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 and Mason v Demasi [2009] NSWCA 227.
It is, however, the applicant’s onus to demonstrate on the balance of probabilities that an injury occurred. The evidence of a deterioration occurring temporally after the second event is not enough to establish a causal chain to the event. Nor is this a case where the Commission is prepared to rely on the applicant’s account alone, given the discrepancies between his evidence and the contemporaneous material in other regards. In Department of Education and Training v Ireland,[4] Keating J found:
“... the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
[4] [2008] NSWWCCPD 134.
The evidentiary challenge for the applicant arising from the delay of more than three months in recording neck symptoms following the second incident is compounded by the fact that the applicant had a degenerative condition at his cervical spine, which as I have found above, was made symptomatic in a separate incident on 31 January 2020. There is, therefore, an alternative explanation for the deteriorating symptoms.
For the reasons given above, I do not find the opinions of Dr Bentivoglio, Dr Hsu or the other treating specialists of assistance in relation to this issue.
Whilst I accept on the material before the Commission that there was a deterioration in the applicant’s cervical spine symptoms from late 2020 onwards, I am not satisfied on the balance of probabilities that there was a deterioration, exacerbation or aggravation of symptoms in the event or contributed to by the event on 2 July 2020 for the purposes of ss 4 and 9A of the 1987 Act.
There will be an award for the respondent in respect of the allegation of injury to the cervical spine in the event on 2 July 2020.

Whether the surgery is reasonably necessary as a result of the injury on 31 January 2020

Section 60 of the 1987 Act relevantly provides:
“(1)    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).”
The test in s 60 requires consideration of both the causal relationship to the injury and the reasonableness of the treatment.
With regard to causation, a common sense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[5] where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[5] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“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. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is uncontroversial that a need for treatment can result from multiple causes. In Murphy v Allity Management Services Pty Ltd[6] Roche DP stated:
“…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).”
[6] [2015] NSWWCCPD 49.
The findings above mean that is necessary for the applicant to establish that the injury on 31 January 2020 materially contributed to the present need for surgery.
There is clearly an evidentiary challenge for the applicant in this regard as all of the doctors who have expressed an opinion on the proposed surgery have done so on the basis that there was a second aggravating injury in July 2020. I have not accepted that claim.
There is also a gap of around seven months in the contemporaneous evidence of neck symptoms between March 2020 and October 2020. In this period, the applicant returned to pre-injury duties. While these factors are suggestive of a resolution of the symptoms resulting from the January 2020 injury, the applicant has given evidence that he had to take regular breaks following his return to work to relieve his neck symptoms. This aspect of the applicant’s evidence is corroborated by the clinical record of Dr Yousaf on 18 March 2020. There is no positive evidence or opinion that the applicant’s neck symptoms resolved completely after the January 2020 injury.
In this period, the applicant also sustained another significant injury, although I have not accepted that this involved his cervical spine. The injury to the applicant’s back in July 2020 triggered a new round of treatment, investigation and referrals to specialists. It is possible that the additional physiotherapy and medication being used to treat the applicant’s back symptoms from July 2020 also had a beneficial impact on the applicant’s neck symptoms or at least led to a greater focus on his back as opposed to any ongoing symptoms at the applicant’s neck.
In these circumstances, I am not persuaded that the gap in the treating evidence or the brief return to pre-injury duties leads inevitably to a conclusion that the January 2020 injury completely resolved or that the causal chain between the January 2020 injury and the need for surgery was broken.
It is relevant to note, as I have above, that there is no suggestion that prior to the January 2020 injury the applicant had ever complained of or sought treatment for cervical spine symptoms. Although I have accepted that aspects of the applicant’s evidence and his reporting of history are unreliable, I do accept that he has consistently suggested that his neck symptoms commenced with and continued after the January 2020 event.
None of the doctors in this case have suggested that the proposed surgery was only necessary as a result of the alleged July 2020 injury. Although the reliability of their opinions on causation is questionable in view of the histories on which they were based, Dr Hsu and Dr Bentivoglio both related the need for surgery to the January 2020 incident, as the event which had triggered the applicant’s neck problems. Dr Yousaf came to the same conclusion but armed with a broadly accurate history.
There is no suggestion of any other intervening event to account for the deterioration in the applicant’s neck condition.
There is undoubtedly a material contribution to the applicant’s current condition from the degenerative pathology at the applicant’s cervical spine. Had there been a complete resolution of the applicant’s neck symptoms following the January 2020 incident, it may well be that the natural progression of the applicant’s degenerative condition would account entirely for the applicant’s current condition.
The general nature of the applicant’s work as a storeman could also have been a contributing factor, as noted by Dr Hsu, although no claim to that effect has been made and I make no findings in that regard.
The authorities make clear that the injury need not be the only contributing factor to the need for surgery or even the main contributing factor. It is enough that it materially contributed to the need for surgery. The weight of medical evidence before me suggests that the 31 January 2020 has continued to contribute, in a material way, to applicant’s current symptoms.
The only real opinion to the contrary is that of Dr Casikar who considered the applicant’s neck symptoms were in fact the result of soft tissue pathology at his shoulder. Dr Casikar suggested that with appropriate treatment of the shoulder, the applicant’s symptoms would resolve. Although Dr Casikar noted the radiological findings at the cervical spine, in the absence of clinically verifiable neurological findings, Dr Casikar considered the neck pain was due to the shoulder pathology and not any work-related injury to the cervical spine.
Dr Casikar’s medical opinion stands in contrast to all the other medical evidence before the Commission. While there is clearly pathology at the applicant’s left shoulder, none of the treating doctors considered that this accounted entirely for the applicant’s pain.
Orthopaedic surgeon, Dr Smith accepted that the cervical spine could be one of the applicant’s pain generators. Injection to the AC joint requested by Dr Smith did not provide any relief. Another shoulder surgeon, Dr Duckworth, found that the main pathology affecting the applicant’s pain was in his neck rather than the shoulder. Dr Hsu, whilst also initially attributing the applicant’s symptoms to the shoulder, found on further investigation that symptoms were originating from the cervical spine. The applicant’s general practitioner has expressed agreement with Dr Hsu’s opinions.
The question of whether the condition for which surgery is proposed has “resulted from” the January 2020 injury is one which is finely balanced and clearly one in respect of which minds might differ. After careful consideration of all the evidence, ultimately I do feel a sense of actual persuasion that there has been a material contribution to the current condition from the compensable injury. I accept that the applicant has discharged his onus on the balance of probabilities.

The remaining issue in dispute is whether the surgery proposed constitutes reasonably necessary treatment for the applicant’s condition. What constitutes “reasonably necessary” treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[7] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[7] (1986) 2 NSWCCR 32 (Rose).
Further, his Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      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.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[8] and stated:
“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[8] [1997] NSWCC 1.
In Diab v NRMA Ltd,[9] Roche DP provided a summary of the relevant principles as follows:
“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 (see [76] above), 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.
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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[10]
[9] [2014] NSWWCCPD 72.
[10] At [88] to [90].
Deputy President Roche commented further:[11]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[11] At [86].
Dr Hsu’s proposal for surgery has received support from Dr Bentivoglio and the applicant’s general practitioner, Dr Yousaf. Although I have found Dr Bentivoglio’s opinions on causation unreliable due to his reliance on an inaccurate history, his opinions on the appropriateness and effectiveness of the proposed surgical procedure are not affected by the same defect.
Dr Bentivoglio noted that the surgery was intended to address discogenic pain in the applicant’s cervical spine. While the results of this type of surgery were difficult to predict, Dr Bentivoglio estimated it would provide a 60 to 70% chance of some improvement in the applicant’s neck symptoms.
Dr Bentivoglio noted the long history of conservative treatment including physiotherapy, cortisone injections at both the neck and the shoulder and long term use of medication. Dr Bentivoglio identified no alternative treatment.
Consistently with Dr Bentivoglio’s expert opinion, Dr Hsu justified the surgical procedure by reference the significant disc pathology identified on multiple radiological investigations, and the applicant’s demonstration of symptoms. Dr Hsu noted that the applicant’s shoulder pathology was being treated by Dr Duckworth who had recommended the applicant proceed with his surgical plan for the cervical spine first. Dr Hsu noted that treatment with injections at the levels at which surgery was proposed had been successful although symptoms had persisted and were now more severe.
Prior to Dr Hsu’s recommendation for surgery, the evidence before me confirms that the applicant’s neck symptoms had been treated by multiple physiotherapists and pain management specialist, Dr Nazha, in additional to regular consultations and analgesia prescribed by Dr Yousaf and several hospital presentations.
The lone voice against the surgical treatment is that of Dr Casikar whose opinion on the appropriateness of the proposed surgery is based heavily on his view that the shoulder and not the neck is the source of the applicant’s symptoms. As I have noted above, this opinion finds no support from the treating specialists who have investigated the applicant’s shoulder and cervical spine. Although treatment of the pathology at the applicant’s shoulder may also be indicated, Dr Duckworth, for example, has recommended that the applicant proceed with the cervical surgery first.
Weighing this evidence and having regard to the authorities set out above, I find that the surgery proposed by Dr Hsu is appropriate. I am not satisfied that treatment of the applicant’s shoulder pathology will resolve the applicant’s neck symptoms as suggested by Dr Casikar. No alternative treatment other than that which has already been attempted without success is indicated on the evidence before me. While the costs of the treatment are significant, they are not unusual or excessive. There is a body of medical opinion before me indicating that the surgery is appropriate and likely to be effective. While a resolution of all the applicant’s symptoms is not expected, I accept that there is a reasonable prospect of the applicant’s symptoms being alleviated.
In these circumstances, I am satisfied that the C6-7, C7-T1 anterior cervical decompression and fusion surgery proposed by Dr Hsu is reasonably necessary as a result of the injury on 31 January 2020.
There will be an order for the respondent to pay the costs of and incidental to the surgery in accordance with s 60 of the 1987 Act.

[2023] NSWPIC 585

3 November 2023