Shipley v Visscher Caravelle Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Shipley v Visscher Caravelle Australia Pty Ltd [2023] NSWPIC 229
APPLICANT:	Troy Shipley
RESPONDENT:	Visscher Caravelle Australia Pty Limited
Member:	John Wynyard
DATE OF DECISION:	19 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for surgery to the cervical spine; whether cervical spine injured on the two injurious dates pleaded; whether clinical notes supported claim; Held – no contemporaneous support for worker’s assertion that he was complaining of neck pain whilst investigations and recorded complaints were concerned with the thoracic and lumbar spinal areas; danger of relying on health professional notes considered; Qannadian v Bartter Enterprises Pty Limited and Collins v Bunnings Group discussed and applied; award for the respondent.
determinations made:	1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Troy Shipley, the applicant, brings an action for a declaration pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that proposed surgery to his cervical spine is reasonably necessary as a result of injuries on 31 January 2020 and 2 July 2020.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly issued.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Did Mr Shipley injure his cervical spine in either injury on either date of injury?
(b) If so, was the proposed surgery reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was heard in in person on 21 March 2023. The applicant was represented by Mr Paul Stockley of counsel instructed by Simon Chadwick of Messrs Chadwick Lawyers. Visscher Caravelle Australia Pty Limited (the respondent) was represented by Mr John Fennell of counsel instructed by Ms Jenny Nichols from Messrs Hall & Wilcox, lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents (ALD) from the respondent dated 16 March 2023.

Oral evidence

No application was made.

FINDINGS AND REASONS

The pleaded issues

The ARD pleaded two injuries. On 31 January 2020 Mr Shipley alleged that as he alighted from the forklift he was using to align a pallet being unloaded from a shipping container, he felt a “crack in his cervical spine, pain in his left shoulder and in his thoracic and lumbar spines.”
A second injury was alleged to have occurred on 2 July 2020. On this occasion Mr Shipley was again removing boxes from a shipping container, but was required to move them manually. As he lifted one of the boxes he alleged that he lost his balance and fell to his side, still holding the box. He claimed that he injured his left shoulder and his cervical, thoracic and lumbar spines.
Three dispute notices were issued.
On 28 April 2022 a s 78 notice issued relating to the alleged injury of 2 July 2020. The notice claimed that the injury of that date related to the thoracic back. The insurer relied on the advice of Dr Casikar, who reported on 18 February 2022.
This decision was reviewed on 31 August 2022 and the insurer confirmed its decision of 28 April 2022. It noted that the review was based on a report from the applicant’s medico-legal Neurosurgeon, Dr Peter Bentivoglio of 9 May 2022. The insurer noted the earlier injury of 31 January 2020 to the thoracic spine, and that it had closed its file as that injury had resolved and Mr Shipley had returned to work on pre-injury duties in March 2020.
Various factual assertions were made regarding the contents of contemporaneous clinical notes and other reports. The insurer preferred the opinion of Dr Casikar.
On 4 January 2023 the insurer issued a further dispute notice which related to the claim that injury on 31 January 2020 was responsible for the proposed surgery to the cervical spine. The insurer again noted that it had accepted liability for injury to the thoracic spine only, and again referred to contemporaneous clinical notes. The notice said:
“Accordingly, we dispute that you suffered a cervical spine injury on 31 January 2020. In this regard, we also note that you were treated by Ambulance NSW on 31 January 2020 and transported to the Hospital. The clinical records from Ambulance NSW confirm you complained of symptoms to your back only. There were no complaints of symptoms to your neck.”
The notice also referred to Dr Casikar’s opinion that the relevant pathology was to be found in Mr Shipley’s left shoulder.

Mr Shipley’s statement 27 July 2022

Mr Shipley was born in 1972. He has worked most his life as a labourer and started work with the respondent in January 2018 as a storeman. He was one of a workforce of five. On 31 January 2020 he stated that he had to alight from the forklift he was using to unpack pallets from a shipping container, as the bottom pallet on the tines was crushed and the one above it looked like it would fall. As he pushed the top pallet he said:[1]
“I felt a crack in my neck and pain in my left shoulder and mid and lower back….”
[1] ARD page 21.
He was taken by ambulance to Blacktown Hospital, and discharged the same day after
X-rays had been taken. At the time of his discharge he felt pain in his neck, left shoulder and back. He consulted his general practitioner (GP) Dr Yousaf and was prescribed Endone. He rejoined the workforce doing his pre-injury work in March 2020 after two weeks of light duties.
As he was doing his pre-injury duties, he noticed mild pain in the same three places which he said “interfered with my ability to perform my full duties.” He took regular breaks to relieve his pain levels, and took no further time off work.
However, on 2 July 2020 he further injured himself, again whilst emptying a container. He was alone, and attempted manually to lift a cardboard box, the dimensions of which were about three metres high by one metre in width and about 25 kilograms in weight. As he did so he lost his balance and fell to his left side. He experienced sharp shooting pain radiating from his neck into his left shoulder. He also noted back pain and radiating pain down his left leg. He continued working.
He consulted Dr Yousaf on 10 July 2020, who organised an MRI scan of the thoracic and lumbar area of his spine. Mr Shipley said at [23] that he was “experiencing neck pain and pain in his mid and lower back” and was sent for physiotherapy. He resumed employment on 20 August 2020 doing light duties of cutting mats with a machine whilst sitting. This activity aggravated his “neck, left shoulder and lower back pain” (at [25]).
Mr Shipley continued under Dr Yousaf’s management. He went to a different physiotherapist in Baulkham Hills, as he was not satisfied with his first physiotherapist. He complained to Dr Yousaf on 22 September 2020 of neck pain and left shoulder pain.
Mr Shipley’s new physiotherapist was Phillip Ting. When he saw Mr Ting on 26 September 2020 he was complaining of thoracic and lumbar discomfort, especially when bending and lifting.
Mr Shipley said he complained about neck pain to Dr Yousaf from time to time. He maintained that he mentioned his neck pain on:
·        10 July 2020 as related above.
·        6 October 2020 at [30] – “pain radiating from my neck into my left shoulder and power back radiating down my left leg.”
·        16 October 2020 at [31] – “unrelenting pain in my neck.”
·        2 November 2020 at [32] – “ongoing pain and stiffness in my neck.”
·        12 January 2021 at [35] – “I continued to experience pain in my neck, my left shoulder…”
Mr Shipley saw Dr Brian Hsu, Spine Specialist, and complained of mid to lower back pain. At the next consultation Mr Shipley spoke of a bone scan that demonstrated pathology in his left shoulder. An MRI of the left shoulder was then performed, which confirmed pathology in the periscapular region. This led to an MRI of the cervical spine and a referral to Dr Nicholas Smith, orthopaedic surgeon. Dr Smith recommended a joint injection, which Mr Shipley undertook.
When he went back to Dr Hsu, he was told that he had:
“…a significant problem with my left shoulder which was, at least in part, related to my cervical spine, based on the MRI scan and recommended I undergo a series of injections into my cervical spine.”
He was referred to Dr Allan Nazha, pain specialist. He saw Dr Smith again and complained that his neck and left shoulder pain was persisting, notwithstanding the injections. He said:
“Dr Smith told me that he suspected the pain in my shoulder was coming from my neck and wanted me to consult with Dr Hsu prior to pursuing any further treatment.”
A further MRI scan was carried out of the cervical spine, and Mr Shipley underwent an injection into his cervical spine. Mr Shipley was then treated for psychological issues by Dr Rachel Bailey.
Mr Shipley’s symptoms became more acute and he underwent a further injection to the cervical spine. He complained to Dr Yousaf of tingling in the fingers of both hands.
He was reviewed by Dr Hsu and Dr Nazha. He requested Dr Yousaf for Endone. He had a further MRI performed he said at [61]. On seeing the scan Dr Hsu recommended fusion as a treatment option as Mr Shipley had “significant disc pathology.”
Mr Shipley was referred to Dr David Duckworth, orthopaedic surgeon, who told him that his pain and discomfort was from his neck.
Mr Shipley saw Dr Casikar on 10 February 2020 at the behest of the respondent, and liability for the proposed surgery was declined shortly afterwards.

Contemporaneous material

As indicated, Mr Shipley was treated by a number of health professionals. He was taken to Blacktown Hospital following his accident by ambulance. The ambulance report stated: [2]
“Case History
Case Nature other traumatic cause WORK PLACE INJURY FROM TAKING THE WEIGHT OF PALLET
Case
Description 0/A paramedics met by pt and co-workers sitting outside the factory. 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. 0/E pt alert, orientated and well perfused, speaking in full sentences with nil resp distress. Pt denies chest pain, headaches, vomiting. 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. Pt transported to hospital for further assessment and treatment. En-route to hospital pt slightly anxious.”
[2] ARD page 29.
The ambulance report also noted:[3]
[3] ARD page 30.
“On Examination
Primary Survey no immediate life threat
Secondary
Surveythoracic spine pain described as sharp; Right Lower Leg altered sensation numbness & tingling; dizzy; nausea ; sweating ; anxiety ; grips strong bilaterally; speech normal Denledheadache Noaltered conscious state ; cough ; short of breath; vomiting
RSA  Normal Respiratory Status
Auscultation (L & R)          Clear
Upper Airway  Clear
Appearance  Calm/ Quiet
Speech  Clear and Continuous
Rhythm  Regular
Effort  Normal
Chest Wall Status                Equal Expansion”
The notes from Blacktown Hospital were also lodged.[4] They showed that X-ray imaging was taken of Mr Shipley’s chest and thoracic spine. No abnormalities were detected.
[4] ARD from page 34.
The Discharge Transfer Document and Discharge Summary both recorded that Mr Shipley was admitted complaining of pain in the mid thoracic region. This pain had resulted in the decreased depth of breathing. Mr Shipley had “normal upper limb neurological examinations…”
The clinical notes from Dr Yousaf Myhealth Medical Centre Baulkham Hills recorded that Mr Shipley was a new patient when he was consulted on 3 February 2020.[5]
[5] ARD page 197.
“Recorded by: Dr Ayesha Yousaf Visit date: 03/02/2020
Recorded on: 03/02/2020
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 tenderess
discussed pain management”
On 2 March 2020 Dr Yousaf noted:[6]
[6] ARD page 199.
“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”
Mr Shipley underwent investigations on 3 March 2020. X-rays were taken of the chest and thoracic spine, and a Ct scan was taken of the cervical spine. The CT scan report said relevantly:[7]
[7] ARD page 53.
“C6/7: Diffuse disc height loss. Posterior disc bulging indents the thecal
sac, mildly flattens the ventral aspect of the cord. Disc and endplate
osteophyte do extend into the neural exit
foramina more obvious on the left side abutting the exiting C7 nerve roots.
The facet joints have a normal appearance.
C7/T1: Small uncovertebral osteophytes and minima! disc bulging extending
into the foramina particularly on the right side, abutting the exiting right
C8 nerve root without definite neural impingement. No facet joint
arthropathy. No cervical rib.
The soft tissues of the neck are within normal limits.
CONCLUSION: Cervical spine degenerative changes, with mild canal stenosis C6/7.
There is C7 and C8 foraminal narrowing, without definite neural
impingement - close clinical correlation is essential If there is ongoing
diagnostic uncertainty, MRI correlation could be considered.”
On 24 April 2020 Dr Yousaf made the following note:[8]
“pt is improved nearly back to normal
want to go back to preinjury duties
discussed back care and precautions
if symptoms recur within next few weeks then review”
[8] ARD page 201.
On 10 July 2020 Dr Yousaf referred Ms Shipley to Nicholas Toose. Dr Yousaf said:[9]
“Thank you for seeing Troy Shipley, 47 yrs old, for an opinion and management of lower back pain related to work injury. Patient had thoracic back injury 4 months ago and that was settled until lower back injury exacerbated the pain.”
[9] ARD page 57.
The entry for 10 July 2020 within Dr Yousaf’s clinical notes was:[10]
“Reason for visit:
Worker's Compensation certificate
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”
[10] ARD pages 101-102.
Dr Yusaf ordered investigations which were carried out on 21 July 2020. An X-ray of the thoracic spine showed no abnormality, and an MRI scan of the lumbar spine was also taken.[11]
[11] ARD page 58.
On 24 July 2020 Dr Yousaf again referred to “back pain related to work place injury.”[12]
[12] ARD page 60.
A report from Dr TB Dang, Physiotherapist, to Dr Yousaf of 12 August 2020 noted complaints of pain in “the (L) side SIJ region, as well as intermittent (L) buttock and/or groin pains.”[13] Dr Dang took a history of the 2 July 2020 injury only. He reported that Mr Shipley’s buttock and groin pain had resolved but pain was reported continuing in the left sacro-iliac joint.
[13] ARD page 62.
On 28 August 2020 Dr Yousaf referred the applicant to Mr Philip Ting. Dr Yousaf reported:[14]
“Thank you for seeing Troy Shipley, 48 yrs old, for an opinion and management of back pain after injury at work.
Patient had previous throacic (sic) back injury earlier in the year that got better. Mr Shipley was lifting over sized boxes on to a pallet in a container on 2/7/20. He developed lower back and left sided leg pain, sciatica type. MRI was non conclusive. I shall appreciate if you can review him and assist him with return to work.”
[14] ARD page 64.
Dr Yousaf recorded an attendance on 22 September 2020. It recorded complaints of pain in the lower back and “shooting pain left leg.”[15]
[15] ARD pages 205-206.
On 3 November 2020 Dr Yousaf referred Mr Shipley to another physiotherapist, Mr Rabie Abou Fakher. Dr Yousaf said:[16]
“…. Patient has non-conclusive MRI scan and is seeing specialist. He has significant left-sided muscle stiffness paraspinal along cervical and thoracic (sic) pain in left lower leg symptoms ? sciatica….”
[16] ARD page 75.
The MRI scan I assume was that taken of the lumbar spine on 21 July 2020, it being the only MRI Mr Shipley had undergone at that stage.
When Dr Brian Hsu first reported on 27 November 2020 to Dr Yousaf following her referral of the applicant for treatment, Dr Hsu recorded “significant back pain in both the thoracic, and lumbar region.”[17]
[17] ARD page 72.
Dr Hsu’s assessment following examination and a review of “a thoracic spine MRI” was of “back pain that is likely related to thoracic disease or costovertebral joint disfunction.”
On 12 January 2021 Dr Yousaf recorded complaints of pain as follows:[18]
[18] ARD pages 209-210.
“back pain is there
…
lower back twisting gives electric shock
has had left hand T6 pins and needles
O/E
Left paraspinal T4-5 tenderness
? T4 syndrome
? muscular
Had left shoulder scan”
On 14 January 2021, Dr Hsu reported again to Dr Yousaf.[19] He said:
“….[Mr Shipley] returns for follow-up of his ongoing pain around the periscapular region and also his lumbar spine and left leg.
His most recent MRI scan of the left shoulder does demonstrate a 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….”
[19] ARD page 80.
The MRI scan was duly taken on 28 January 2021. The radiologist stated:[20]
“Degenerative changes are seen in cervical/spine at C6/7 level where there is impingement of traversing left C7 nerve root…..”
[20] ARD page 86.

Dr Brian Hsu

Dr Hsu’s reports were scattered throughout the ARD. I have alluded to some of his reports above. Relevantly, an MRI scan of the cervical spine was carried out on 28 January 2021, at Dr Hsu’s request. The radiologist reported:[21]
“IMPRESSION:
Degenerative changes are seen in cervical/spine at C6r1 level where there is impingement of traversing left C7 nerve root. Clinical correlation with dermatomal distribution of symptoms is suggested.”
[21] ARD page 86.
On 10 August 2022 Dr Hsu reported to Mr Shipley’s solicitors.[22] He said:
“Please find below, responses to your questions listed in your
correspondence: -
1. Whether our client sustained an injury to his cervical spine on 2 July 2020, in the course of his employment with Visscher Caravel Australia Pty Ltd;..
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 Peter Bentivoglio
[22] ARD page 169.

Dr Peter Bentivoglio, neurosurgeon, was retained by the applicant as his medico-legal expert. Dr Bentivoglio reported on 9 May 2022.[23] He took the following history:
“Thank you very much for asking me to see Mr Troy Shipley, a 49-year-old man born on 05/08/1972 who has worked as a storeman in the past. I saw him today on 28/04/2022 when he described an initial work injury on 31/01/2020. He 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 has never had any prior neck issues before this.
He went to Blacktown Hospital. They did x-rays of his neck. No fractures were seen. He saw his local doctor the next day complaining of left-sided neck pain but no arm pain. He was given physiotherapy and he actually got back to work, initially on light duties and then on normal duties in March 2020.
He had a second injury on 02/07/2020 whilst he was unloading boxes from a container, he developed neck pain going into the left shoulder again and low back pain. He has never had any prior low back issues but the neck pain going into the left arm was similar to the original injury on 31/01/2020. He had a CT scan of his cervical spine on 04/03/2020 because of neck pain but no true brachialgia. He had numbness and pins and needles in both hands, left side greater than right.
He had an MRI scan of his lumbar spine on 21/07/2020 and unfortunately, there was no report of this to hand. At this stage, his low back pain is not a major issue. From the point of view of his left shoulder, he has been seen by orthopaedic surgeon and had one cortisone injection, however, the left shoulder pain persists but has improved. He actually stopped work after the second injury on 02/07/2020 and has not worked since that time.”
[23] ARD page 229.
Dr Bentivoglio’s working diagnosis was of “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.”
He said:[24]
“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.”
[24] ARD page 233
Dr Bentivoglio thought that Mr Shipley had exacerbated his pre-existing degenerative disease which had been asymptomatic before the injury of 31 January 2020. Dr Bentivoglio observed that pre-existing degenerative disease was undoubtedly shown on the CT scan “about a month after the injury.”
Dr Bentivoglio also thought that the injury of 2 July 2020 had “reignited the neck pain going into his left shoulder, so it just exacerbated the original injury on 31.1.2020.”

Associate Professor Nicholas Smith (It is convenient, with respect, to refer to Associate Professor Smith as “Dr”).

Dr Smith was a “hand & wrist surgeon,” and he reported to Dr Yusaf on 17 February 2021. The history recorded by Dr Smith was that Mr Shipley injured his “shoulder” whilst unloading a container in January 2020. Dr Smith noted a consistent history of the event itself when Mr Shipley felt a “snap in his back” whilst attempting to block the fall of a pallet. Dr Smith noted that since then Mr Shipley had anterior shoulder pain. Dr Smith noted that Dr Hsu was also seeing Mr Shipley for a “spine problem.”
Dr Smith’s examination was of the left shoulder and he noted that he could not define a superior labral injury that that was supposedly detected on MRI scan. Dr Smith said:
“[Mr Shipley’s] potential pain generators are his cervical spine, SLAP lesion and A/C joint…”
In a further report dated 22 March 2021, Dr Smith reviewed Mr Shipley “regarding his left shoulder and neck pain.” Mr Shipley had undergone an A/C joint corticosteroid injection which had been of no effect.

Dr David Duckworth

Dr Duckworth was a shoulder and elbow surgeon to whom Mr Shipley was referred by Dr Yusaf. He reported on 29 November 2021 and recorded the following history:[25]
“Thank you for referring Mr Shipley who is 49 years of age and presents with a problem affecting his left shoulder for which he has been under the care of Dr Nick Smith. Mr Shipley also has 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 has had ongoing problems affecting his neck and shoulder since…”
[25] ARD page 146.
Dr Duckworth observed that Mr Shipley “appears to have the main pathology today affecting his neck rather than his shoulder….”

Dr Vidyasagar Casikar

As indicated, the respondent relied on the medicolegal advice of Dr Casikar, consultant neurosurgeon. Dr Casikar issued two reports, the first being dated 17 February 2022.[26]
[26] Reply page 22.
Dr Casikar took a history of both injuries. He said:
“[Mr Shipley] was taking pallets out of the container with the forklift. The appellant was slightly out of position. He wanted to put it. He tried to push the pallet with his hands. He developed a severe pain in the neck and the left shoulder. He went by ambulance to Blacktown Hospital….”
Dr Casikar noted that Mr Shipley underwent treatment managed by Dr Yusaf and was cleared for work two months later. The second injury of 2 July 2020 was again described consistently. Dr Casikar recorded that Mr Shipley “developed a severe pain in the neck and in the shoulder.” Dr Casikar noted that Shipley said “that this was exactly as it was before.” He recorded that three days later the shoulder and the neck pain increased.
Dr Casikar noted the report of the MRI scan of 24 August 2021, saying that it showed multi-segmented degenerative disease with disc bulges at C6/7 and C7/T1. His opinion was that the description of the injury and subsequent left shoulder pain was consistent with the clinical examination, which showed left shoulder movements to be significantly reduced. Dr Casikar suggested that the “main injury” was to the left shoulder. He said:
“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….”
Dr Casikar advice that Mr Shipley was suffering from a cervical spondylosis which was a pre-existing degenerative disease. There was no “logical evidence” that suggested that the workplace incident had aggravated Mr Shipley’s cervical spondylosis. Dr Casikar thought that the proposed surgery was not reasonably necessary as the cervical spondylosis was not related to Mr Shipley’s employment, and neither was his neck pain due to cervical spondylosis, but rather to the soft tissue injury to the shoulder.
In his second report of 3 March 2023, Dr Casikar confirmed that his diagnosis was of soft tissue injury to the shoulder and constitutional degenerative disease of the cervical spine. He disagreed with Dr Hsu and noted there were no verifiable neurological findings with relation to the neck complaints and his opinion remained that the neck pain was due to soft tissue injury to the shoulder. He confirmed that whilst employment was a substantial contributing factor to the shoulder injury, it was not to the cervical spondylosis.

SUBMISSIONS

Mr Stockley said the applicant was supported by Dr Hsu and Dr Bentivoglio. The only contrary opinion was that of Dr Casikar. Mr Stockley acknowledged that some of the clinical notes did not reflect the history given by Mr Shipley, but he submitted that complaints about the cervical spine were identified within a reasonably short period of time following the 31 January 2020 injury.
Mr Stockley said that the entire clinical record demonstrated conditions of intractable pain. Multiple investigations and treatment over a significant period of time were also on the record. The cervical problem was not always identified, but it was first recognised on 2 March 2020, which was close enough to the 31 January 2020 injury to be supportive of a finding of injury on that date to the cervical spine.
Mr Stockley referred to various entries in the clinical notes and medical reports that identified an emerging cervical pathology that had got to the stage, as acknowledged by Dr Bentivoglio, that the proposed surgery was now the only viable treatment option.
Although Dr Casikar thought that Mr Shipley’s neck symptoms were caused by pathology in the left shoulder, Mr Stockley argued that Dr Hsu, Dr Bentivoglio and Dr Duckworth held a different view.
Mr Stockley said that Dr Yusaf’s note of 2 March 2020 had recorded a complaint of neck pain, and a CT scan of the cervical spine had been taken the following day. Mr Stockley said that these two entries were a good example of the utility of clinical notes. The entries confirmed Mr Shipley’s statement that he was suffering neck pain as he was performing his duties after his return to work in March 2020.
Mr Shipley was referred to Dr Hsu, who reported that Mr Shipley continued to demonstrate significant cervical radiculopathy despite conservative treatment. This was evidence that demonstrated an emerging pathology, Mr Stockley argued.
Mr Stockley relied on the observations of Dr Bentivoglio that Mr Shipley had tried all conservative methods of treatment without effect and that surgery was the only answer now.
As to Dr Casikar, Mr Stockley noted that he disagreed with Dr Hsu, advising that the injury was to the left shoulder only, and any neck pain derived from the shoulder.
Although Dr Duckworth was treating the shoulder, Mr Stockley observed that Dr Duckworth had made an ipso facto comment that the pathology was in Mr Shipley’s neck, rather than his shoulder. In the light of the whole of the evidence, that comment was probative, Mr Stockley submitted, as no further investigation was made of the left shoulder. The totality of that evidence amounted to cervical injury on both occasions.
Whether the surgery was reasonably necessary or not was answered in the affirmative by Dr Hsu and Dr Bentivoglio as being appropriate and Dr Casikar only thought it was not appropriate because of the lack of neck pathology, Mr Stockley said.

Mr Fennell

Mr Fennell maintained that there are three relevant aspects to the evidence:
§    Mr Shipley did not complain of any injury to the cervical spine in either incident.
§    If he did suffer a cervical spine event, it was self-limiting and it did not follow that the current need for treatment was related.
§    The evidence before the Commission was insufficient to find that the surgery was reasonably necessary.
Mr Fennell conceded that Mr Shipley presently suffers from a painful condition in his cervical spine.
Mr Fennell submitted that the hospital and ambulance notes did not show any complaint about the neck. He also submitted that when the applicant consulted Dr Yousaf on 3 February 2020, no complaint about neck pain was made. The first mention Mr Fennell said was on 2 March 2020, but the note “neck pain” was not of much probative value.
Moreover, at the time it was made, that complaint may well have been coincidental and not related to the injury at the end of January.
Mr Fennell referred to the CT scan of 3 March 2020 and said that that showed that Mr Shipley was suffering from degenerative change. There was therefore the possibility of an independent unrelated cause. This was confirmed by Dr Yousaf’s note of 10 July 2020 that Mr Shipley had suffered two injuries, one to the lower back and the other to the thoracic spine four months earlier, which Dr Yousaf said had settled but had been exacerbated by the lower back injury of 2 July 2020. Mr Fennell submitted that I could therefore conclude that there had been no neck injury. Moreover, Mr Fennell submitted, Dr Yousaf had sent Mr Shipley for further investigations, but they were of the thoracic and lumbar areas of the spine on 21 July 2020.
Mr Fennell argued that there had been no consultation with Dr Yousaf between 24 April 2020 and 10 July 2020, which would imply that Mr Shipley’s symptoms, whatever they were, had settled. Mr Fennell said further that neither the history taken by the physiotherapist Dr Dang nor the referral by Dr Yousaf to other physiotherapists on 24 July 2020 and 28 July 2020 mentioned the neck, but rather referred to back pain. Moreover, when Mr Shipley first saw Dr Hsu on 27 November 2020, no history of neck pain was taken, and Dr Hsu only recorded complaints of thoracic and lumbar spinal symptoms.
Mr Fennell submitted that the first mention following the injury of 2 July 2020 of the cervical spine was on 30 November 2020 by Dr Yousaf, and that was in the context of a paraspinal left sided muscle stiffness, and not related to the cervical spine itself. Mr Fennell said that this referral for physiotherapy showed a change in pathology.
This, Mr Fennell continued, was also demonstrated by Dr Hsu’s report of 29 December 2020 when he reported a diagnosis of discogenic back and neck pain. Dr Hsu did not identify any cause for these problems and it could safely be inferred that the neck symptoms were not work related.
The referral by Dr Hsu on 14 January 2021 for an MRI of the cervical spine Mr Fennell said showed an evolving problem in the neck that had just been discovered, which again raised an inference that there was no causal link. The findings of the scan on 28 January 2021 that degenerative changes were seen in the cervical spine at C6/7 was consistent with the development of a later onset of Mr Shipley’s condition.
Mr Fennell referred to Dr Smith’s reports. Mr Fennell observed that although Dr Smith was concerned with the shoulder, his tentative mention of a “potential” cervical spine problem awaited, Dr Smith said, the opinion of Dr Hsu who was managing the spine symptoms.
Dr Duckworth’s report was dated 29 November 2021, Mr Fennell said. He submitted that Dr Duckworth’s opinion was inconclusive, as although he gave some tentative support to the neck being the source of Mr Shipley’s symptoms, he wanted to see the shoulder MRI. There was no further report tendered.
Mr Fennell submitted that there was support from Dr Yousaf and Dr Duckworth for the conclusion that the left shoulder had been the injury that was suffered on 31 January 2020.
Mr Fennell submitted that Dr Bentivolio’s report was of little probative weight. In the first place no history had been taken of Mr Shipley’s visit by ambulance to Blacktown Hospital, contemporaneous evidence or of his visit to Dr Yousaf shortly after.
Secondly, the history taken of Mr Shipley’s developing neck pain at the time of the event on 2 July 2020 was not supported by contemporaneous records. Dr Bentivoglio’s opinion that Mr Shipley was suffering neck pain secondary to multilevel degenerative disease did not support his theory that the 31 January 2020 event had exacerbated Mr Shipley’s degenerative condition, Mr Fennell said. Dr Bentivoglio did not engage with the temporal gap between that event and his opinion, which was dated 9 May 2022, Mr Fennell argued. There was insufficient material to draw an inference that would explain that considerable gap.
There was accordingly no causal link between the need for surgery and the claimed injuries, Mr Fennell argued.
Mr Fennell said that Dr Casikar supported this view. Dr Casikar agreed that Mr Shipley’s medical condition was of cervical spondylosis, but found that it had not been caused by employment. The more probable cause for Mr Shipley’s neck pain was the left shoulder injury. Dr Casikar accepted that there was pathology in the cervical spine, but said that pain in the neck was common to both cervical spondylosis and shoulder injury, but the clinical notes did not support the cervical spine pathology as being the cause.
Having surveyed the evidence Mr Fennell submitted:
(a)     there was no injury to the cervical spine in either of the events pleaded;
(b)     there were pre-existing degenerative changes which explained the unrelated onset of cervical symptoms presumably well after the event;
(c)     if there was an injury there is insufficient evidence to link it to employment. The evidence showed the cervical condition was of subsequent onset which is supported the contemporaneous notes of the treating doctors, and
(d)     accordingly, applying Diab v NRMA Ltd [27]there was alternative treatment. It was dangerous to allow the surgery to the cervical to occur when it was the shoulder that was the problem.
[27] [2014] NSWWCCPD 72

Mr Stockley in response

Mr Stockley submitted that the applicant had been taken to task for not telling Dr Hsu on 23 November 2020 about his neck. The fact that nothing appeared in the record did not mean that the complaint was not made, and Mr Stockley referred to the usual warnings about clinical notes contained in the authorities. He took issue with Mr Fennell’s assertion that ‘paraspinal’ did not refer to the spine itself, describing it as “an incredible submission.”
Mr Stockley said it was an incredible submission to submit that a paraspinal complaint was not connected to the spine.
Mr Stockley submitted that the applicant’s post injury investigations showed pathology and signs of disc protrusion. He noted that Mr Shipley’s cervical spine condition had been asymptomatic prior to the injury of 31 January 2020, but thereafter Mr Shipley made complaints about his neck.
Mr Stockley submitted that for the respondent to prevail it had to show:
(a) that Mr Shipley’s account was not true, and
(b) despite the accidents, there is just a coincidental onset of cervical spine symptoms
Mr Stockley submitted that Dr Bentivoglio’s opinion should be preferred. Dr Bentivoglio discussed the pathology in the cervical spine, finding that there was an exacerbation of the underlying condition on both pleaded dates. The weight of the reports of Dr Hsu, Dr Smith and Dr Duckworth favoured this diagnosis. The shoulder issue was not pursued, Mr Stockley said, because medical opinion was that the cause of Mr Shipley’s neck pain was the spondylosis. Dr Casikar agreed that such pathology was present, and his reasoning Mr Stockley described as “opaque.” Dr Casikar’s opinion appeared to be based on his clinical findings and unproven assumptions about the left shoulder pathology.

DISCUSSION

The issue for determination has been identified by both the dispute notices and indeed in the submissions as being whether Mr Shipley has satisfied his onus.
That he has a pathological condition in his cervical spine is not in dispute. At the time he was seen by Dr Casikar, Dr Duckworth, Dr Hsu and Dr Bentivoglio Mr Shipley was diagnosed as suffering from a degenerative cervical spondylosis. The respondent however denies that the condition was symptomatic at the time of either injury by reference to the contemporaneous clinical notes.
It is well-settled that whilst the contents of such notes can be used to establish primary facts, their nature requires the factfinder to approach the issue with some caution.[28]
[28] Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50 at [36] per DP Michael Snell. See also Collins v Bunnings Group [2021] PIC 313 at [221] per Member Glenn Capel.
I have taken some pains set out the evidence relied on by Mr Fennell. It can be seen that his submissions were based on the contemporaneous evidence that was identified in the dispute notice of 4 January 2023. The basis of that declinature, the notice said, was that there was no complaint of neck symptoms recorded by either the ambulance service or in the Blacktown Hospital notes when Mr Shipley was admitted following his accident of 31 January 2020.

Had that been the extent of the contemporaneous evidence, Mr Shipley’s statement that he felt a crack in his neck at the time of the incident would have been difficult to accept. Mr Shipley’s statement was dated 27 July 2022, and by that time the symptoms in his neck had progressed to the point where he has made this application for surgery to be approved. The evidence showed the emergence of a condition in the cervical spine of such significance that it is always possible that Mr Shipley, no doubt doing the best he could with his memory of these events, nonetheless had unconsciously reconstructed some facts that the contemporaneous record did not support.
Mr Shipley’s statement that he felt a crack in his neck is a case in point. The ambulance report took a history of “a pop in his back with severe pain.” Dr Yousef described it as a “snap in upper back.” The hospital X-rayed Mr Shipley’s chest and thoracic spine, and the Blacktown Hospital Discharge Summary recorded complaints of pain “in the mid thoracic region.” It would seem therefore that Mr Shipley’s statement that he recalled a snap in his neck may have been incorrect, and that the sound he heard at the time of his injury was rather in his thoracic spine.
I note however that Mr Shipley also stated that he felt pain in his neck at the time of the discharge (as well as the shoulder and back) and that when he returned to pre-injury duties in March 2020 he was nonetheless aware of pain in those three areas which “interfered with my ability to perform my full duties.”
Mr Shipley’s statement in that regard did have some corroboration. The entry in Dr Yousaf’s notes on 2 March 2020 of the complaint about neck pain caused Dr Yousaf to order investigations. Whilst the chest was X-rayed on 3 March 2020, a CT scan, only of the cervical spine, was also taken. This would indicate that Mr Shipley’s complaint was of sufficient interest to Dr Yousaf to warrant that form of investigation. The respondent however claimed that these two events were not contemporaneous with the injury on 31 January 2020, and were unrelated to that event.
The pathology identified in the CT scan showed “degenerative changes, with mild canal stenosis C6/7” and “C7 and C8 foraminal narrowing.” There was also identified some pathology at C7 – T1, being small uncovertebral osteophytes and minimal disc bulging, which extended into the foramina and abutted the exiting right C8 nerve root without definite neural impingement.
It can be seen therefore that the CT scan of 3 March 2020 revealed pathology in the cervical spine that related to the lower end of that spinal area, and indeed included the first vertebra of the thoracic area of the spine. Mr Shipley did not profess to any anatomical expertise and the area of his back that so profoundly shocked him when he felt and heard the “pop in his back with severe pain” may well have been in fact the lower part of the cervical spine. Accordingly, the apparent inconsistency may not be as significant as the insurer alleged in its notice of 4 January 2023.
It is relevant that the severity of Mr Shipley’s reaction to his injury on 31 January 2020 was such that an ambulance had to be called in the first place. The ambulance record described that Mr Shipley did not feel like he could breathe properly due to the pain, he complained that his right lower leg had altered sensation with numbness and tingling. Mr Shipley was reported as feeling dizzy, nauseous, dry retching and anxious. The ambulance report noted that he was sweating.
Although as it turned out Mr Shipley was able to return to full duties within a few weeks, the injury itself was clearly a dramatic and traumatic experience for him. It may very well be that his recall of these events was influenced by these matters.
The evidence of his complaint however to Dr Yousaf on 2 March 2020 and the subsequent CT scan of the cervical spine do support Mr Shipley’s statement that he was experiencing pain in his neck (as well as his back and his left shoulder) when he was back at work. Dr Yousaf’s comment on 24 April 2020 that Mr Shipley was “improved” and wanted to go back to preinjury duties was nonetheless qualified by her comment that Mr Shipley was “nearly back to normal.”
Dr Yousaf’s note of 10 July 2020 both confirmed the occurrence of the 2 July 2020 injury and that the lower back injury of 2 July 2020 had exacerbated the “thoracic back injury 4 months ago.” It is apparent that Dr Yousaf was, as is to be expected in a busy practice, approximating her details. The injury of 31 January 2020 was in fact seven months earlier, however the description of the area of complaint recorded on 3 February 2020 was described with some particularity, namely, “left paraspinal T 4-6.” Her note of 3 February 2020 also stated, “no spinal tenderness.”
It was submitted that the entry of 2 March 2020 constituted a recognition of the cervical problem within a reasonably short period of time. The complaint was made it would seem at the time Mr Shipley was returning to pre-injury duties after a short period of light duties. It is doubtful that Mr Shipley had been doing any strenuous duties during that time, and accordingly the complaint may be seen as some contemporaneous support for injury to the cervical spine, notwithstanding Dr Yousaf’s note that when consulted on 3 February 2020, she made reference to the thoracic spine.
There is no doubt that Mr Shipley now needs surgery to treat the condition of his cervical spine. I did not read Dr Casikar’s opinion as denying that necessity, as his opinion was that the pathology was unrelated to Mr Shipley’s employment.
The CT scan of 3 March 2020 detected degenerative changes. When the cervical spine was scanned next on 28 January 2021, the radiologist’s impression of the MRI scan recorded additional pathology, which involved degenerative changes at the C6/7 level traversing left C7 nerve root.
The CT scan of 3 February had made similar findings, but added the rider that an MRI scan should be taken if there was any diagnostic uncertainty.
During the time between scans, Mr Shipley’s complaints to his medical advisors had been about the thoracic and lumbar spinal areas. An MRI of the lumbar spine and an X-ray of the thoracic spinal areas were taken on 21 July 2020. Mr Shipley resumed employment on 28 August 2020 on light duties. The evidence is not clear as to when he ceased work, but no mention of cervical symptoms was recorded in that time, save a passing reference by Dr Yousaf to “significant left-sided muscle stiffness paraspinal along cervical and [thoracic] pain” when she referred Mr Shipley to Mr Fakher for physiotherapy on 3 November 2020.
That reference raises the warnings I have referred to above about making findings of primary fact on the basis of clinical notes. Mr Stockley remarked on this in his submissions in reply when relying on this entry to both confirm Mr Shipley’s evidence that he had complained of neck symptoms throughout this time, and that there was therefore a causal link between the injuries and the emerging cervical symptoms.
That submission must be rejected. The frequent assertions in Mr Shipley’s statement that he complained to Dr Yousaf about his neck symptoms were not borne out by her clinical notes. He alleged that he had complained about neck symptoms after the second injury of 2 July 2020 on five occasions, but the corresponding entries in Dr Yousaf’s notes made no mention of such complaints, save that of 3 November 2020. Whilst the authorities I have referred to above (and those cited in them) caution against the use of clinical notes in the fact-finding process, in Qannadian DP Snell said at [37]:
“36. …A number of these authorities are referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:
‘It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).’
37. The authorities … do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence.”
Dr Yousaf’s notes were quite detailed, and identified the contemporaneous complaints with some care, indicating the precise area of concern in her notes. For instance, when she first saw Mr Shipley on 3 February 2020, she located the area of tenderness as “left paraspinal T 4-6.” On 2 March 2020 she noted that Mr Shipley was “tender at C2 area at the base of skull” and immediately sent him for a CT scan the following day.
Her notes continued to be precise. She noted that Mr Shipley’s thoracic injury had settled until it was aggravated by the 2 July 2020 injury, which she identified as a back injury with pain radiating down the leg. She organised scans of the thoracic and lumbar spine for 21 July 2020. In view of her actions in March 2020 of having the cervical spine imaged, I find this referral to be significant. It is unlikely that Dr Yousaf would not have also ordered an investigation into the cervical spine, had she been aware that it was causing symptoms also. In the subsequent management of Mr Shipley’s case she described Mr Shipley’s symptoms as “back pain” or “lower back pain and left sided leg pain,” or lower back pain with “shooting left leg pain.” It was after these entries that Dr Yousaf noted on 3 November 2020 that Mr Shipley was complaining of significant left sided muscle stiffness relevantly along the cervical spine.
Of itself, that notation may have had some significance were it not for the fact it had not hitherto been made to Dr Yousaf. The entry was after Mr Shipley had been receiving treatment for his back injury since 10 July 2020, and I have strong reservations that his cervical spine was symptomatic over that time. Dr Yousaf had shown herself to be thorough in her note taking and it is probable that she would have noted any complaints regarding the cervical spine, had they been made.
Moreover, when Mr Shipley was then referred to Dr Hsu he noted only complaints of “significant back pain in both the thoracic, lumbar region.”
Whilst Mr Shipley stated that the light duties work in August 2020 aggravated his neck, left shoulder and back, there was no independent corroboration for that statement. The fact that no complaints were recorded, and that the cervical spine was not imaged on 21 July 2021 gives very little weight to that assertion. Whilst I do not for a minute raise any question about Mr Shipley’s honesty, the difficulties about reconstruction discussed earlier mean these assertions of themselves have little probative weight.
Dr Casikar reported further MRI scans of the cervical and thoracic spine of 24 August 2021. The cervical scan showed multisegmented degenerative disease with disc bulges at C6/7 and C7/T1.[29] That MRI report may not have been in the evidence. In any event, Dr Casikar diagnosed a cervical spondylosis, but said that the neck pain was “mainly” due to referred pain in the shoulder.
[29] Reply page 25.
I do not find much assistance from the reports of Dr Casikar. His qualified opinion admitted to an involvement of the cervical spondylosis, and he did not enlarge on his use of the word “mainly.” I reject his hypothesis that employment was not the main contributing factor because the neck pain was secondary to the left shoulder pathology.
The issue for determination is therefore whether the current state of Mr Shipley’s cervical spine is related to either injury.
I am not persuaded that it was. It may be that Mr Shipley injured his cervical spine on 31 January 2021, but the totality of the evidence demonstrates that the injury was probably self limiting.
The lack of treatment or recorded complaint (save that of 2 November 2020) during the time between the CT scan of 3 February 2020 and the MRI scan of 28 January 2021 when Mr Shipley was under treatment for his lumbar spine from 10 July 2020 raises a doubt as to whether Mr Shipley’s uncorroborated evidence that he was also complaining of neck pain can be accepted.
The involvement of Dr Duckworth, Dr Smith and Dr Hsu did not advance Mr Shipley’s case. At the time Dr Smith reported on 17 February 2021 he stated that the “potential pain generators” included the cervical spine, but took no history of injury thereto, saying that Dr Hsu was dealing with the spine.
Dr Hsu first reported on 27 November 2020 that Mr Shipley’s back pain was related to thoracic disease or costovertebral disfunction. It was only on 14 January 2021 that Dr Hsu organised an MRI of the cervical spine after investigations into the shoulder pathology suggested intra-articular pathology. On 10 August 2022 Dr Hsu noted that Mr Shipley’s symptoms were “certainly more severe” and accordingly recommended the subject surgery.
Dr Smith thought on 17 February 2021 that the cervical spine was a potential pain generator, although his involvement appeared to be concerned with the left shoulder. Similarly Dr Duckworth on 29 November 2021 thought the main problem by then was the cervical spine, although again he was concerned with management of the shoulder condition.
Dr Bentivoglio’s medico-legal report was based on an incorrect history as, for the reasons I have discussed, his assumption that Mr Shipley injured his neck on 2 July 2020 was not proven. As at the date of his report, 9 May 2022, his diagnosis of an exacerbation of Mr Shipley’s asymptomatic degenerative disease was correct as far as it went. However he did not have a complete or accurate history, and failed to consider the question of whether Mr Shipley’s injury of 31 January 2020 had resolved, or the concomitant question of whether the exacerbation was related to Mr Shipley’s employment. Dr Bentivoglio assumed that question did not arise, as he accepted, erroneously, that the cervical spine had been injured in the accident of 2 July 2020.

SUMMARY

Accordingly, there is an award for the respondent.

[2023] NSWPIC 229

19 May 2023