Sisko v State of New South Wales (Illawarra Shoalhaven Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sisko v State of New South Wales (Illawarra Shoalhaven Local Health District) [2021] NSWPIC 526
APPLICANT:	Laura Sisko
RESPONDENT:	State of New South Wales (Illawarra Shoalhaven Local Health District)
MEMBER:	Jill Toohey
DATE OF DECISION:	17 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Accepted injuries to the applicant’s left shoulder and cervical spine arising out of or in the course of her employment in 2015 and 2017; whether applicant suffered injury to her central nervous system in 2017; whether applicant suffered injury to her right shoulder; cervical spine surgery performed in June 2018; whether surgery was reasonably necessary as a result of the 2017 injury; severe post-surgery complications resulting in injury to the laryngeal nerve; respondent accepted that if the cervical spine surgery was reasonably necessary then the applicant suffered compensable injury to laryngeal nerve; TEMSKI scarring; whether applicant had no current capacity for employment from 27 April 2021 as a result of her injury; whether applicant entitled to lump sum compensation; Held – finding that cervical spine surgery was reasonably necessary as a result of the workplace injury; finding that applicant suffered injury to her central nervous system; award for the respondent in respect of the right shoulder; weight to be given to surveillance material; finding that applicant had no current capacity for employment from 27 April 2021; referral to medical assessor for assessment of whole person impairment of injuries claimed other than injury to the right shoulder.
DETERMINATIONS MADE:	1. The applicant suffered injury to her left shoulder and cervical spine arising out of or in the course of her employment with the respondent on 22 July 2015 and 30 October 2017. 2. The applicant suffered injury to her nervous system arising out of or in the course of her employment with the respondent on 30 October 2017. 3. Award for the respondent in the claim for injury to the right shoulder. 4. The cervical spine surgery undertaken by Dr Ravi Cherukuri was reasonably necessary as a result of the applicant’s workplace injury. 5. The applicant suffered injury to her laryngeal nerve as a result of the cervical spine surgery undertaken by Dr Cherukuri. 6. The respondent to pay the applicant’s reasonably necessary medical expenses pursuant to section 60 of the Workers Compensation Act 1987. 7. The applicant has had no current capacity for employment from 27 April 2021 to date and continuing. 8. The respondent to pay the applicant weekly compensation in the amounts set out in the schedule of payments attached to the Reply with allowances for indexation. 9. Liberty to the parties to apply with respect to the calculation of the applicant’s entitlement to weekly payments. 10. The matter is remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment of the whole person impairment of the applicant’s following body parts as a result of injury on 22 July 2015 and 30 October 2017: (a) cervical spine; (b) left upper extremity (shoulder); (c) ear nose throat and related structures; (d) nervous system, and (e) TEMSKI scarring. 11. The documents to be referred to the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents lodged by the applicant and attached documents.

STATEMENT OF REASONS

BACKGROUND

Laura Sisko (the applicant) was employed by the Illawarra Shoalhaven Local Heath District (the respondent) as an endorsed enrolled nurse from around 2010.
Ms Sisko claims she suffered injuries arising out of or in the course of her employment with the respondent on 22 July 2015 and 30 October 2017. She claims weekly compensation from 27 April 2021 and ongoing, and medical expenses of $2,196.25. She claims lump sum compensation for permanent impairment of the cervical spine, left shoulder, ear nose throat and related structures, nervous system and right shoulder, and TEMSKI scarring.

There is no dispute that Ms Sisko injured her left shoulder and neck on 22 July 2015 while helping a patient from a chair to a standing position. After a period off work and treatment, she resumed her pre-injury hours.
Ms Sisko had a further period off work from mid-2016 to around July or August 2017 which was unrelated to her injury.
Ms Sisko suffered further injury to her cervical spine and left shoulder when helping a patient up on 30 October 2017. She claims the cervical spine injury resulted in incomplete cervical cord lesion and cortico-spinal tract impairment including impairment to both upper limbs and station gait disorder.
There is no dispute that Ms Sisko suffered further injury to her neck and left shoulder on 30 October 2017 arising out of or in the course of her employment with the respondent. After a period off work, she made a graduated return to work on restricted duties, slowly increasing to five hours a day on two days a week. She continued to experience symptoms in her neck and left shoulder.

On 13 June 2018, Ms Sisko underwent a C67 anterior discectomy, titanium disc replacement and triple fusion. She developed severe post-operative complications including right laryngeal nerve palsy.
On 13 December 2018, Ms Sisko underwent a left shoulder arthroscopy and rotator cuff repair. There is no dispute that this surgery was reasonably necessary as a result of her workplace injury.
The respondent disputes that the cervical spine surgery on 13 June 2018 was reasonably necessary as a result of Ms Sisko’s accepted injury. The respondent accepts that she developed post-operative complications resulting in injury to her laryngeal nerve. The respondent agrees that, if the cervical spine surgery is found to be reasonably necessary as a result of the injury on 30 October 2017, Ms Sisko suffered a compensable injury to the laryngeal nerve.

The respondent disputes that Ms Sisko suffered injury to her right shoulder arising out of or in the course of her employment with the respondent and disputes that she suffered injury to her spinal cord/central nervous system.

Parties agree that Ms Sisko’s pre-injury average weekly earnings were as paid by the respondent in the schedule of payments attached to the Reply.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the cervical spine surgery on 13 June 2018 was reasonably necessary as a result of Ms Sisko’s accepted injury to her cervical spine;
(b) whether Ms Sisko suffered injury to her a central nervous system injury in the form of incomplete spinal cord lesion on 30 October 2017;

(c) whether Ms Sisko suffered injury to her right shoulder on 30 October 2017;
(d) whether she is entitled to lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act);

(e) whether she is entitled to compensation for TEMSKI scarring as a result of the cervical spine injury;

(f) whether she had partial or total incapacity from 27 April 2021 to date and continuing as a result of her accepted injury, and

(g) whether she is entitled to compensation for reasonably necessary medical and treatment expenses.

PROCEDURE BEFORE THE COMMISSION

Parties attended a conciliation/arbitration hearing on 23 November 2021. Ms Sisko was represented by Mr Mark Boulton of counsel, instructed by Mr Imran Khan. The respondent was represented by Mr David Baran of counsel, instructed by Mr Danny Khoshaba.
Mr Boulton sought leave to amend the Application to Resolve a Dispute (ARD) to include a claim for the injury to Ms Sisko’s left shoulder and cervical spine sustained on 22 July 2015. The application was foreshadowed by letter to the respondent dated 15 November 2021. That letter referred to a letter dated 13 April 2021 to the insurer which confirmed that the lump sum claim was made for both injuries in 2015 and 2017.
Mr Boulton submitted that the respondent was on notice of the claim in respect of the 2015 injury, that it was identical at least in part to the 2017 injury, that the doctors on both sides were aware of, and had commented on, both injuries, that there was no prejudice to the respondent in allowing the amendment, and that the interests of justice required that the amendment be allowed so that a Medical Assessor might take the 2015 injury into account.
Mr Baran acknowledged the letter dated 13 April 2021 to the insurer but submitted that the applicant had given no explanation for the failure to include the claim in relation to the 2015 injury in the ARD and should not be allowed to simply say, without more, that it should be referred to a Medical Assessor together with the injuries pleaded.
I decided that the amendment should be allowed. There is no dispute as to liability for the 2015 injury. Doctors on both sides had consistently taken a history of the earlier injury and had commented on it, including that Ms Sisco had returned to work, apparently without ongoing complaints resulting from it.
I was satisfied there was no prejudice to the respondent in allowing the amendment to the ARD and that it would be a matter for a Medical Assessor, if it came to it, to determine any contribution to whole person impairment.
Mr Baran sought leave to cross-examine Ms Sisko. The application was foreshadowed at the telephone conference on 13 October 2021. Mr Baran submitted there were inconsistencies in Ms Sisko’s complaints to the doctors, and independent evidence by way of surveillance material indicating that she has capacity for employment and should be working, that should be put to her.
Mr Boulton submitted that it was a matter for me but he could not see how allowing cross-examination would assist in my determination.
I decided to refuse Mr Baran’s application. None of the doctors had had the opportunity to comment on the independent evidence and whether they considered the surveillance video reflected Ms Sisko’s capacity for employment. Further, while at least one of the respondent’s doctors noted inconsistencies Ms Sisko’s presentation, other doctors on both sides commented that they found no inconsistency. In the circumstances, I was not persuaded there was sufficient reason to allow cross-examination.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

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

(a) ARD and attached documents;
(b) Reply and attached documents, and

(c) Application to Admit Late Documents (AALD) lodged by the applicant and attached documents.

Onus of proof

Ms Sisko bears the onus of proof. The standard is on the balance of probabilities, meaning that I must feel an actual persuasion of the matters necessary to establish her claim: Department of Education and Training v Ireland[1], and Nguyen v Cosmopolitan Homes.[2]
[1] [2008] NSWWCCPD 134.
[2] [2008] NSWCA 246.

Ms Sisko’s statement

Ms Sisko provided a written statement dated 11 September 2021[3]. She describes suffering two “almost identical injuries” to her neck and left shoulder during her employment with the respondent.
[3] ARD page 1.
The first incident occurred on 22 July 2015 while Ms Sisko was transferring a patient from a chair to a standing position with another nurse. As they did so, the patient slipped and fell on her left arm and neck. She experienced sudden pain in both.
Following this incident, Ms Sisko experienced pain in her left shoulder and cervical spine, and nausea and migraines when the pain was particularly severe. She was treated with physiotherapy, an injection in her left shoulder in September 2015, and a nerve root block in her cervical spine in February 2016. “Eventually”, she was able to resume her pre-injury hours until the second injury in October 2017.
In early 2016, Ms Sisko became pregnant with twins. Sadly, both died following an emergency caesarean operation in August 2016. Ms Sisko went on maternity leave until around July or August 2017 when she resumed her pre-injury hours and duties.
On 30 October 2017, Ms Sisko was transferring a patient who was resisting attempts to help him. He pulled on her arm, forcing her body forward from her shoulder and neck. She felt immediate pain in both. She describes “an instant sharp knife like pain” over her left lower face and cheek extending over the left side of her neck, across her left shoulder and down her back.
Ms Sisko states that, about half an hour later, she began to notice pins and needles in her left arm from the shoulder down to her fourth and fifth fingers. Her right leg started to feel heavy with the sensation, extending into her toes. Within about 10 minutes of the injury, she went to sit on the toilet and noticed her right lower leg was purple and discoloured. She had pain in her right groin and numbness down her right thigh. She had difficulty pushing up from the toilet with her right leg which “felt like a piece of wood”. She felt as though she was “walking with a limp dragging [her] right leg” and her left leg was feeling numb.
Ms Sisko continued working for several hours but the pain increased to the point where she could hardly move her neck or shoulder. She completed an incident form and left work. She was rostered off for the next few days. She saw her general practitioner on 2 November 2017 who gave her a WorkCover medical certificate.
Ms Sisko describes having an ultrasound, undergoing physiotherapy for around three months, and then hydrotherapy. She return to work on restricted duties, slowly increasing her hours to five hours a day, two days a week. She had worked previously worked 20 hours a week on the surgical ward.
Ms Sisko was referred to Dr Stuart Jansen, orthopaedic surgeon, who recommended an injection in her left shoulder. It did not provide significant relief and she was referred to neurosurgeon, Dr Ravi Kumar Cherukuri, to investigate the problems in her neck. She had further scans and a cortisone injection in her neck but had an anaphylactic reaction and decided against any further injections.
On 13 June 2018, Dr Cherukuri performed a C6/7 anterior discectomy, titanium disc replacement and triple fusion with a cage. The respondent approved the surgery. Ms Sisko developed severe post-operative complications resulting in a large haematoma on the right side of her neck.
Following the surgery on 13 June 2018, Ms Sisko lost her voice completely and was in intensive care for about a week. She had no feeling in her legs and could not walk. She would often have urinary incontinence and, more recently, two occasions when she lost control of her bowels. She now has hoarseness of her voice and has been seeing a speech pathologist. She has not been able to eat solid foods or drink without choking. An EMG nerve test showed right laryngeal nerve palsy caused by the neck surgery.
Ms Sisko states that she began to experience tremoring in her whole body from her head to her feet. She had experienced tremors in her legs, arms and head before the surgery but they “intensified dramatically” following the surgery. She is unsteady when walking and tends to trip over. She is unable to drive because she is unable to turn her head and look around her. She suffers severe headaches and a spinning sensation.
Ms Sisko underwent an arthroscopy to her left shoulder on 13 December 2018. The respondent does not dispute that this procedure was reasonably necessary as a result of her accepted injury.
Ms Sisko states she had an injury to her lower back in around 2005 following which she was out of the workforce until she obtained her position with the respondent.[4] When she started her current employment, she could perform her normal duties without difficulties. She had no problems with her neck and left shoulder before the injury in 2015.
[4] It appears Ms Sisko commenced employment with the respondent in about 2010.
Ms Sisko states that she is unable now to perform any type of work. She describes her employment history and says, given her physical injuries, she would not be able to do any type of work for which she is trained or experienced. Furthermore, her difficulties in speaking and communicating mean she cannot do any other kind of work.

The medical evidence

There is limited contemporaneous medical evidence concerning Ms Sisko’s injuries on 22 July 2015 but there is no dispute that she injured her cervical spine and left shoulder. The general practitioners’ records show she had CT and MRI scans of her neck and was treated with physiotherapy and injections over several months.[5]
[5] ARD page 33 ff.
An MRI of Ms Sisko’s cervical spine on 11 November 2015 showed:
“C6/7 shows moderate broadbased annular bulging with a small superimposed left posterolateral focal protrusion with mass effect upon the anterior aspect of the thecal sac. There may be minimal mass effect upon the anterior surface of the cord but there is no cord
displacement. Cord signal was normal. Signal from vertebral marrow was normal.
Comment: Small neurocentral osteophytes creatlng mild narrowing of the left C4 and CS exit foramina. Some narrowing of the C6/7 disc with broadbased annular bulging and a superimposed left posterolateral focal protrusion with some mass effect upon the thecal
sac.” [6]
[6] Reply page 129.

Dr Ian Davidson, specialist in rehabilitation medicine, saw Ms Sisko following the 2015 injury. He reported on 9 February 2016 that she had not had much benefit from injections in her neck. He noted that she had been on heavy painkilling medication, apparently for some time, and suggested changes to her medication. A further report on 2 September 2016 refers to pain killing medication which had increased following the Caesarean delivery and death of her twins.[7]
[7] Reports dated 9 February 2016, 13 May 2016, 2 September 2016, Reply pages 130, 131, 132.
Ms Sisko’s evidence is that her 2015 injuries resolved and she resumed her pre-injury duties, although she reported to some doctors that her symptoms continued. The clinical records and a rehabilitation report indicate that she resumed work approximately six months after the incident.[8]
[8] ARD page 144.

I will consider the medical evidence by reference to the issues to be determined and parties’ submissions. Inevitably, there is some overlap in both. The submissions were recorded and I will not recite them in detail.

Was the cervical spine surgery reasonably necessary as a result of the injury on 30 October 2017?

The respondent’s case

Mr Baran submits that the evidence does not support a finding that the cervical spine fusion performed by Dr Cherukuri on 13 June 2018 was reasonably necessary as a result of
Ms Sisko’s accepted injury to her cervical spine.
The respondent relies on the opinion of Dr Andrew Keller, occupational physician, who saw Ms Sisko for assessment on 2 February 2018, 13 February 2020 and 12 January 2021.
[9] Reply pages 146, 189, 224, 237.
Dr Keller provided reports of his assessments and a supplementary report dated 17 February 2021.[9]

In his report of 2 February 2018, Dr Keller took a history of the injury in 2015. He noted that an MRI on 11 November 2015 showed a C6/7 central bulge with left-sided protrusion but no nerve root compression. He noted that an MRI on 16 November 2017 showed a similar C6/7 disc bulge protruding to the left with no nerve root compression. He noted that Ms Sisko reported constant sharp pain in the neck and left shoulder.

Dr Keller reported that inspection of Ms Sisko’s cervical spine was normal. She reported “intense tenderness” at minimal skin contact over the cervical spine and left trapezius muscle. She had greater range of motion in the right shoulder. The range of motion in the left shoulder varied at times during the consultation. Ms Sisko reported altered sensation affecting the left ring and little fingers which crossed multiple dermatomes and had no anatomical explanation. MRIs showed a “minor disc bulge without nerve root compression” similar in 2015 and 2017.
Based on Ms Sisko’s account, Dr Keller said the 2015 injuries to her neck and left shoulder had apparently fully resolved. He said it was “not clear” to him that there had been any exacerbation in her condition in 2017. He concluded it was likely she had suffered soft tissue strains to the neck and left shoulder. The expected recovery from such a strain would be days to weeks, and her high level of reported symptoms more than three months later was “unexpected”. As at the date of his report, he would have expected Ms Sisko could have returned to up eight hours a day, two to three days a week, doing administrative tasks. He agreed she could not work with manual handling of patients.
Dr Keller said it was of concern to him that Ms Sisko’s condition and disability appeared greater than warranted by the pathology elucidated, and the physical findings were not congruent with the pathology found. He suspected that psychosocial factors were contributing to her disability and restrictions, and that being on high-dose opiates for a long period could be delaying her recovery.
Dr Keller reported that, as requested, he had discussed Ms Sisko’s case with her general practitioner, Dr Cathy Allen. She agreed with him that the described work incident would not be expected to cause lasting musculoskeletal injuries and this was in accordance with
[10] Reply page 150.
Ms Sisko’s medical specialist’s opinions. She also agreed that Ms Sisko’s recovery was complicated “by her nonwork related psychosocial issues”.[10]

It appears from Dr Keller’s report that the psychosocial issues related to a recent bereavement and two episodes in the past post-natal depression, and that Ms Sisko had been on high dose opiates for a long period.
Dr Keller reported that he and Dr Allen agreed that Ms Sisko would benefit from a graduated return to pre-injury hours, from five hours, three days a week, to eight hours, three days weekly over the next two to four weeks. There were no medical contraindications to her doing her current light duties.
In his report of 17 February 2020, Dr Keller reviewed extensive treating and assessing doctors’ reports, rehabilitation documents, and imaging. He noted that Ms Sisko had a work-related lower back claim in 2005, that she had been diagnosed with a lumbar disc injury and was unfit for work between 2005 and 2010, and she had a partial laminectomy at L4/5 around 2007.
Dr Keller noted that, since his last report, Ms Sisko had undergone a C6/7 fusion on 13 June 2018 that was complicated by a partial right recurrent laryngeal nerve injury.
Dr Keller said it was plausible that the reported incidents caused soft tissue strains aggravating the degenerative changes in Ms Sisko’s left shoulder and cervical spine. He said it was not clear whether they caused disc injuries or tendon tears. He observed that there were “significant inconsistencies in her physical presentation” that were not explained by musculoskeletal complaints. However, it was reasonable to accept that her employment had on two occasions caused pain and disability in her neck.
Dr Keller reported that it was “not clear” to him that Ms Sisko’s employment was the main contributing factor to her need for surgical interventions or her current restrictions and complications as a result of the surgeries.
In his report on 12 January 2021, Dr Keller referred to the 2015 MRI showing “a disc bulge with no nerve root compression” and the 2017 MRI showing a C6/7 disc bulge “with no frank nerve compression”.[11] He said it was clear to him that Ms Sisko’s physical presentation was inconsistent with those findings.[12]
[11] He noted that her medications were listed to include OxyContin, Endone, Palexia, Temgesic, clonazepam, fentanyl, cannabis oil, Maxalt, somac and Zofran.
[12] Reply page 230.
Dr Keller said he was unable to explain Ms Sisko’s apparent disability in terms of the reported work incident in 2017. He considered her physical capacities were greater than she wished to demonstrate. She presented as severely disabled but her shaking physical presentation was not explained in terms of organic physical or neurological injuries, and her high levels of reported pain and disability were not explained by the work incidents or the surgical interventions.
Dr Keller said it was not possible for him to assess whether Ms Sisko’s inconsistent physical disabilities were due to voluntary exaggeration or to involuntary psychological factors, as this was outside his area of expertise. He repeated his opinion that it was not clear to him that there was a need for cervical surgery “directly attributable to the subject accident”.[13]
[13] Reply page 232.
In his report of 17 February 2021, Dr Keller commented on Dr Paul Teychenne’s findings with respect to Ms Sisko’s claim of injury to the central nervous system (see below). He repeated that it was not clear to him that the need for cervical spine surgery was due to the effects of the work incident.[14]
[14] ARD page 237.
Mr Baran submits that Ms Sisko’s evidence about the immediate effects of the injury in 2017 cannot be accepted. She describes “florid” symptoms within minutes of the injury, including that her right leg turned purple and she had pain in her right groin and numbness in her thigh. Her right leg felt “like a piece of wood” and she was dragging her right leg.
Mr Baran submits that Ms Sisko reported none of these symptoms to her general practitioner. They are not referred to in the injury claim form or in the history is taken by any other doctors. Mr Baran submits that Ms Sisko is getting her versions of her injuries mixed up, that these symptoms were connected to her previous back injury which put her out of work for several years. Based on her evidence, Mr Baran submits, I would start to form the view that her credit is questionable.

The applicant’s case

Mr Boulton submits that the weight of the evidence supports the conclusion that the cervical spine fusion was reasonably necessary as a result of Ms Sisko’s accepted injury. He submits that Dr Keller is “out on a limb” with respect to the need for surgery. He refers to the following evidence.
An MRI on 16 November 2017 showed, relevantly:
“Spondylosis at C6/7 with annular bulging and focal left paracentral protrusion. Mass effect on the thecal sac with perhaps mild mass effect on the cord. Minimal narrowing of the C7 foramina due to neurocentral osteophytes. Some small neurocentral osteophytes also create minimal narrowing of the right C6 and left C4 foramina.”[15]
[15] ARD page 58.
Ms Sisko’s general practitioner, Dr Jan Hogbin, reported to the insurer on 23 November 2017. She confirmed a diagnosis of cervical spondylosis at C6/7 as well as pathology in the left shoulder. She noted the mechanism of injury was consistent with the degree of injuries sustained. She noted previous cervical spondylosis and left lateral tear in 2015 which was aggravated by the 2017 injury.[16]
[16] Reply page 133.
Dr Davidson saw Ms Sisko for review on 24 November 2017 and reported to Dr Allen on 24 November 2017 that she had had “another injury, stirring up her neck and left shoulder pain”.[17]
[17] Reply page 142.
Dr Davidson reported that MRI imaging had identified “a segmental change and probable left disc protrusion” in Ms Sisko’s neck. Her movements were quite restricted and she had not responded to physiotherapy. He suggested she try hydrotherapy until she was reviewed by Dr Jansen.[18] He supported her increasing Palexia but was not keen for her to increase her narcotics usage for the time being.
[18] It is not clear whether this was a reference to her left shoulder only or her neck as well.
Dr Cherukuri was Ms Sisko’s treating neurosurgeon. On 21 February 2018, he reported to
[19] ARD page 81.
Dr Allen that Ms Sisko presented with neck pain and shoulder pain following injuries at work in 2015 and further injuries in October 2017. MRIs in 2015 and 2017 both showed “C6/7 disc protrusion abutting the spinal cord with some encroachment on the foramen”. Ms Sisko reported “constant migraines” and that she had woken one day feeling paralysed on her left side with numbness on the side of her tongue. She had paraesthesia in the left arm and into her ingers. Dr Cherukuri advised further investigations including x-ray of the cervical spine, bone scan and left C6/7 periradicular injection.[19]
On 2 March 2018, Dr Cherukuri reported that the bone scan and x-ray of the cervical spine showed spondylitic changes at C6/7. He noted that Ms Sisko had had an anaphylaxis reaction to the injection; it appeared she may be allergic and could not have further injections. He said he had advised her of options for management. As all other conservative measures had been tried without much success, Ms Sisko indicated she would like to consider surgery. He would therefore seek approval for an anterior cervical discectomy and fusion at C6/7.[20]
[20] ARD page 87.

On 12 June 2018, Dr Cherukuri reported that approval had been obtained to proceed with surgery. He had discussed the risks and benefits versus conservative therapy with Ms Sisko. He cautioned her she may not notice improvement in all her symptoms in spite of the surgery going smoothly, and she might need further surgeries in the future. She indicated she wished to proceed and consented to the proposed procedure.[21]
[21] ARD page 97.
In his operation report dated 25 June 2018, Dr Cherukuri said Ms Sisko had left C8, C1 dermatome or altered sensation with weakness in the left arm, partially contributed by pain.[22] The MRI had shown C6/7 disc protrusion. He described the procedure undertaken including that “microscope was brought in to complete the posterior discectomy and removal of the PLL”. He said there was “significant central and lateral disc protrusion in addition to osteophytes, causing significant canal and foraminal stenosis, left more than the right”.[23]
[22] ARD page 98.
[23] ARD page 98.
Dr Medhat Guirgis, orthopaedic surgeon, saw Ms Sisko for assessment on 19 September 2018 and 4 February 2020. He provided reports dated 19 September 2018, 4 February 2020, 19 March 2020 and 23 March 2021.[24]
[24] ARD pages 107, 213, 235, 246.
In his first report, Dr Guirgis diagnosed post-traumatic mechanical derangement of the cervical area of the spine as a result of the 2015 incident which caused “musculo-ligamentous sprain/strain with C 6-7 intervertebral disc involvement”. He noted MRI evidence of a broad-based annular bulging with a superimposed left posterior lateral focal protrusion with some mass effect upon the thecal sac, causing irritation of the C7 nerve root.
Dr Guirgis reported that the 2017 incident resulted in further post-traumatic mechanical derangement of the cervical spine and further musculo-ligamentous sprain with further C6/7 intervertebral disk involvement, resulting in left C7 radiculopathy. He noted the surgery performed by Dr Cherukuri.
Dr Guirgis noted Dr Keller’s comment that it was not clear to him that the 2017 incident was likely to have caused any disc bulge or radiculopathy. Dr Guirgis said these comments were “unhelpful and unreasonable” and disregarded Ms Sisko’s pain and suffering.
In his report of 4 February 2020, Dr Guirgis confirmed his opinion that the 2017 incident caused further musculo-ligamentous sprain/strain and further C6/7 intervertebral disk involvement resulting in recurrence of the active signs and symptoms of left C7/8 radiculopathy. He disagreed with Dr Keller’s opinion that the neck and left shoulder strains should have recovered within weeks, and less than three months, following the injury.
Dr Guirgis described this as “a rather hopeful assumption that did not eventuate”.
With respect to Dr Keller’s opinion that it was not clear to him that the cervical spine surgery was due to the effects of the work incident, Dr Guirgis said in cases of active radiculopathy, as in Ms Sisko’s case, the “gold standard of management” is to treat conservatively for six months and, if the condition proves recalcitrant, to offer surgery. He said the decision “does not require the input of an occupational physician”.
Mr Boulton refers to a report dated 20 May 2019 by neurosurgeon, Dr Michael Davies, who saw Ms Sisko for assessment at the request of the respondent.[25]
[25] ARD page 168.
Dr Davies diagnosed a disc protrusion at C6/7 as a consequence of the incident on 30 October 2017. He considered Ms Sisko presented with a greater level of disability than he would expect from the injury described and the pathology seen on her investigations, and he thought her psychological state was likely to be amplifying her experience of pain and her level of disability. He found no inconsistency between casually observed behaviour and findings on formal examination, but she presented in a much more disabled manner than he would expect from the injury and surgery.
Mr Boulton submits that Dr Davies is essentially the respondent’s neurosurgeon. He referred to the cervical spine surgery and was obviously not opposed to it or he would have said so.

Mr Boulton refers also to a report of Dr David Gorman, consultant physician, who saw
[26] Reply page 213.
Ms Sisko on 24 October 2020 and reported to the respondent’s solicitors. Dr Gorman was provided with extensive documentation and imaging.[26]
Dr Gorman noted that Dr Davies had reviewed Ms Sisko on 20 May 2019 and described similar findings to his own (post-surgery). He agreed with Dr Davies about the effects of the laryngeal nerve injury. As to causation, Dr Gorman said Ms Sisko first had significant left shoulder and cervical spine symptoms after the work injury in 2015.
Dr Gorman was asked whether he agreed with Dr Keller that there were significant inconsistencies in Ms Sisko’s presentation that were not explained by musculoskeletal complaints and that her “pre-existing psychological condition unrelated to her employment” was a contributing factor to her chronic pain.
Dr Gorman said he did not agree fully with Dr Keller on this point (but said he agreed with a more complete quote from Dr Keller’s report). He said Ms Sisko’s musculoskeletal complaints may have been amplified by her psychological state but they were severe even without amplification. Her pre-existing psychological state would have predisposed her to psychological effects after the work injury and complications of cervical spinal surgery but were not necessarily the cause of her current situation. She did not have inconsistencies in her presentation to him. The work incidents resulted in neck and left shoulder pain and he believed there was a “causal connection to her current state, worsened after surgery which was performed for her work injury”.

Dr Gorman referred to a report from Dr Davies dated 4 May 2018 in which Dr Davies felt that Ms Sisko’s problems were work-related and that her presentation may have been more than expected because of her sensitisation due to a long period of prior pain and opioid therapy. Dr Gorman said Dr Davies “did however support the cervical spinal surgery”.[27]
[27] The 2018 report is not in evidence. However, there is no reason to question Dr Gorman’s observation that Dr Davies supported the need for the surgery.
Dr Gorman concluded there was a causal connection between Ms Sisko’s current state which he said was worse and after surgery “which was performed for her work injury”.

Mr Boulton submits that Dr Gorman by implication considered the cervical spine surgery was reasonably necessary as a result of the workplace injury.
Mr BouIton submits that I would prefer the evidence of the treating and assessing doctors that the cervical spine surgery was reasonably necessary as a result of the 2017 workplace injury. Further, that Dr Keller’s statement that it was “not clear” there was a need for cervical surgery “directly attributable to the subject incident” indicates that he applied the wrong test.

Consideration

What is reasonably necessary treatment was considered by Burke CCJ in the context of former legislation in Rose v Health Commission (NSW)[28] at [42]:
“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.”
[28] [1986] NSWCC 2; (1986) 2 NSWCCR 32.

Considering the factors relevant to reasonably necessary treatment under section 60 of the 1987 Act, Burke CCJ said in Bartolo v Western Sydney Area Health Service[29]:

“The question is should the patient have this treatment or not. If it is better that he have 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.”

[29] (1997) 14 NSWCCR 233.

The principles were summarised by Deputy President Roche in Diab v NRMA Ltd[30] (at [88-89]) as follows:
[30] [2014] NSWWCCPD 72 (Diab)
“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’”.

The work injury does not have to be the only, or even a substantial, cause of the need for the reasonably necessary treatment. In Murphy v AllityManagement Services Pty Ltd[31], Deputy President Roche said at [57]-[58]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
[31] [2015] NSWWCCPD 49.

There is no dispute that Ms Sisko suffered injury to her cervical spine in the course of her employment on 22 July 2015. Her evidence is that her injury resolved and she was able to resume pre-injury duties. It appears that she was back at work within about six months. The evidence suggests that she continued to suffer symptoms but, if so, they did not interfere with her capacity to undertake her employment.

Dr Keller was troubled by “significant inconsistencies” between Ms Sisko’s presentation and the medical evidence. He considered her presentation was not explained by her musculoskeletal complaints. In his first report, he said it was “not clear” to him that there had been any exacerbation in 2017 of her 2015 condition. However, he considered it reasonable to accept that her employment had on two occasions caused pain and disability in her neck, and it was plausible that the strains had aggravated degenerative changes in her cervical spine.
With respect to the procedure undertaken by Dr Cherukuri, Dr Keller said it was not clear to him that Ms Sisko’s employment was the main contributing factor to her need for surgical intervention. Nor was it clear to him that there was a need for cervical surgery “directly attributable to the subject accident”.
It is not clear what Dr Keller meant by a need for surgery “directly attributable” to Ms Sisko’s workplace injury. It appears he may have had in mind the “psychosocial factors” that he suspected were contributing to her disability and restrictions.
If Dr Keller meant that Ms Sisko’s injury was not the only contributing factor to the need for surgery, that is not the test of whether treatment is reasonably necessary. The work injury does not have to be the only, or even a substantial, cause of the need for treatment, only that it was reasonably necessary “as a result of” the injury (Murphy).

Dr Keller found Ms Sisko’s presentation troubling and believed there were other factors at play but he did not state that the procedure undertaken by Dr Cherukuri was not reasonably necessary treatment for Ms Sisko’s condition, rather that it was not clear to him that it was.

Against Dr Keller’s opinion of those of Ms Sisko’s treating and assessing doctors.
Dr Cherukuri considered that Ms Sisko had tried all other conservative measures without much success. He referred to the relief she had following an injection in her neck but that it lasted only about eight months and that she had undergone physiotherapy. On 21 February 2018 he took a history from Ms Sisko of “constant migraines” and paraesthesia and weakness in her left arm and fingers. He saw her three times before proceeding to surgery, and several times after.
Dr Guirgis diagnosed post-traumatic mechanical derangement of the cervical area of the spine as a result of the 2015 incident causing musculo-ligamentous sprain/strain with C 6-7 intervertebral disc involvement. He noted the report of the MRI in 2015.

Dr Guirgis’s opinion was that the 2017 incident resulted in further post-traumatic mechanical derangement of Ms Sisko’s cervical spine and further musculo-ligamentous sprain with further C6-7 intervertebral disk involvement, resulting in left C7 radiculopathy. He considered the surgery performed by Dr Cherukuri was reasonably necessary treatment as a result of her injury. He disagreed with Dr Keller that the 2017 injury should have resolved within a matter of weeks because it did not reflect Ms Sisko’s actual experience.
I do not think it can be inferred from Dr Davies’ report that he considered the procedure was reasonably necessary treatment just because he did not state positively that it was not. At most, it might be inferred that he was not opposed to it. However, Dr Gorman noted that
Dr Davies in his report of May 2018 did support the procedure. That report is not in evidence but there is no reason to question Dr Gorman’s observation.
Dr Gorman did not state directly that the surgery was reasonably necessary treatment. It may be inferred from his reference to Dr Davies’ report and his own reference to surgery “which was performed for her work injury” that he thought it was. However, I do not think his statement is sufficiently clear to conclude that he did. However, Dr Davies apparently supported the procedure.

The doctors have not offered opinions as to each of the factors in Diab and parties have not made submissions on each of them. However, I find that the weight of the medical evidence supports the conclusion that the treatment performed by Dr Cherukuri was reasonably necessary as a result of Ms Sisko’s workplace injury in 2017.
Ms Sisko has to establish, applying the commonsense test of causation in Kooragang, that the injury materially contributed to the need for surgery. I prefer the opinions of the treating and assessing doctors that the treatment was reasonably necessary to that of Dr Keller who was not clear that it was. The test is not, as Dr Keller described it, whether Ms Sisko’s employment was the main contributing factor and whether the surgery was “directly attributable” to the injury. I am satisfied that the 2017 injury made a material contribution to the need for the surgery.

Ear, nose and throat systems

There is no dispute that Ms Sisko suffered complications following the procedure.
Dr Sharad Tamhane, ear, nose and throat surgeon, saw Ms Sisko at the request of her solicitors. He reported that her voice and swallowing difficulties result from complications of the neck surgery which led to post-operative neck haematoma which gave rise to partial degeneration of the right recurrent laryngeal nerve and paresis of the right vocal chord.[32]
[32] ARD page 239.
Dr Kenneth Howison, ear, nose and throat surgeon, saw Ms Sisko at the request of the respondent. He agrees that her ongoing vocal problems are a result of injury to the recurrent laryngeal nerve at the time of the cervical surgery.[33]
[33] Reply page 198.
Having found that the cervical spine surgery was reasonably necessary treatment as a result of Ms Sisko’s accepted injury, it follows that she suffered compensable consequential condition of her laryngeal nerve.

Did Ms Sisko suffer injury to her central nervous system injury in the form of incomplete spine lesion on 30 October 2017?

Ms Sisko claims the cervical spine injury on 30 October 2017 resulted in incomplete cervical cord lesion and corticospinal tract impairment. She relies on the opinion of neurologist,
Dr Paul Teychenne.

Dr Teychenne’s reports

Dr Teychenne saw Ms Sisko for assessment on 29 January 2020 and provided a report dated 30 January 2020.[34]
[34] ARD page 192.
Dr Teychenne took a history of injury to Ms Sisko’s lumbar spine in 2005 when she tried to stop a patient falling. She was found to have a probable cauda equina syndrome and underwent a partial L4/5 laminectomy.
Dr Teychenne took a history of the 2015 injury to Ms Sisko’s neck and that the pain persisted until 30 October 2017 when it was acutely exacerbated. He took a detailed history of the incident in 2017 in which he said Ms Sisko had an acute flexion of her head as she was thrown forward and then an acute hyper extension as the patient stood up suddenly. She had another acute flexion of the neck when he pulled back as they tried to help him up again and a further acute extension of the neck when he fell back. Dr Teychenne concluded she “basically sustained two whiplash injuries followed by an acute flexion injury of the head”.
Ms Sisko described to Dr Teychenne that, after the first hyperextension injury, she had “acute sharp pulling pain over the right side of her neck across the right cheek extending into the third and second division of the right trigeminal nerve supply”. He took a detailed account of the pain she felt following the second hyperextension injury, and then the third acute flexion injury, which she said “became progressively worse over the next two hours to reach intensity 10/10”.
Dr Teychenne recorded that Ms Sisko had a long history of migraines since she was 16 years old which occurred about once a month before the injury, up to twice a week following the injury, and persistently following the surgery in June 2018.
Dr Teychenne noted the details of the surgery and its complications including incorrectly, that Ms Sisko said she could no longer play the xylophone with her left hand. (Her evidence is that she played the saxophone.) He recorded the findings of his detailed examination of
Ms Sisko.
Dr Teychenne saw Ms Sisko again on 5 February 2020 and provided a report of the same date headed “Commentary”.[35] He stated he had reviewed her to clarify aspects of the injury in 2005 and on 30 October 2017. He reviewed the MRI scans of her cervical spine in 2015 and 2017 and a CT scan on 20 June 2019. He reviewed Dr Allen’s report to the insurer and Dr Cherukuri’s reports.
[35] ARD page 197.
The report is very detailed and includes history and consideration of all of Ms Sisko’s injuries which it is not necessary to repeat for present purposes.
Dr Teychenne noted (along with other doctors) that Ms Sisko had “mental health issues” and was on medications including clonazepam, Endep, Fentanyl, OxyContin, Oxynorm, Palexia, Temgesic and Ventolin. He noted she had chronic pain with a background of PTSD, anxiety and depression.
Dr Teychenne said the MRI scan reports from 2015 and 2017 indicated there was a potential mass effect on the spinal cord, indicating that Ms Sisko “was at significant risk of an incomplete cervical called lesion as a result of the injuries sustained”. He said that, from the description of the incident in October 2017, Ms Sisko “was at significant risk of sustaining an incomplete so Michael called lesion, which was consistent with my examination when I reviewed [her] on 29 January 2020”.
After reviewing symptoms recorded in Dr Allen’s consultation notes between 8 September 2015 and 22 November 2017, Dr Teychenne said:
“This spectrum of symptoms and signs recorded by Dr Allen was not inconsistent with an incomplete cervical lesion which may produce neuropathic pain within the shoulder as well as down the limb associated with numbness and paraesthesia particularly within the medial fingers of the hand.
The traction injuries that the patient was sustaining at her work were quite consistent with, in my experience, causing and exacerbating and incomplete so Michael called lesion. The presence of potential impingement of disc prolapses and disc osteophytes on the spinal-cord particularly at C6/7 was quite consistent with the patient being at marked risk of an incomplete cervical called lesion as a result of her injuries at work which I have documented [above].”[36]
[36] ARD page 202-203
Dr Teychenne said he had reviewed notes of Dr Jansen (who saw Ms Sisko mainly in relation to her left shoulder). He said the history taken was “consistent” in his experience with an incomplete vocal cord lesion inducing radiculopathoic pain and numbness across the left side into the left arm and medial fingers. He reviewed other reports including from
Dr Davidson, Dr Cherukuri, Dr Guirgis and Dr Davies (including detailed reference to
Dr Davies’ 2018 report which is not in evidence) and Dr Keller.
With respect to Dr Keller’s report of 2 February 2018, Dr Teychenne said he did not mention the minimal mass effect of the C6/7 disc bulge and posterocentral disc protrusion and resulting in a mild mass effect on the left anterior surface of the spinal-cord. Dr Teychenne said:
“This is quite a crucial factor in regard to Ms Sisko’s subsequent clinical history and a crucial factor in regard to the two injuries sustained by her to the cervical spinal cord in 2015 and on 30 October 2017. That is the mass effect of the disc prolapse at C6/7 on the cervical spinal cord indicated that she was at significant risk of an incomplete cycle called lesion as a result of [the two injuries].”[37]
[37] ARD page 206.
Noting Dr Keller’s finding on examination, Dr Teychenne said that, on his assessment, Ms Sisko had “evidence of a left hemiscape area of increased sensation to cold and hyperalgesia consistent with an incomplete central cervical cord lesion”. He said he disagreed with Dr Keller (and with Dr Panjratan who did not consider surgery proposed by Dr Jansen to her shoulder was appropriate).
Dr Teychenne considered that the pain Ms Sisko felt immediately following the 2017 injury was consistent with incomplete cervical cord lesion. He said the dizzy spells and falls she had following the surgery “are not uncommon” after an incomplete cycle cord lesion and he noted other symptoms including distribution of pain, tremors, los of dexterity in the left hand, and upper motor neuron weakness in the limbs which he considered consistent with that diagnosis.
Dr Teychenne provided further reports on 9 August 2021.[38] He said he had reviewed
[38] ARD pages 254, 257.
Dr Keller’s report dated 12 January 2021 and the report of an MRI scan on 12 November 2019. He commented again that Dr Keller had not mentioned the mass effect on the anterior aspect of the thecal sac at C6/7 which he said “was a significant finding particularly in a patient who has clinical evidence of an incomplete central cervical called lesion.” He said Dr Keller did not describe the details of the injury in the same way he had himself, and had only commented that the patient had pulled Ms Sisko by the left arm causing neck and shoulder pain.
Dr Teychenne said Dr Keller’s was “not an adequate history” from which to reach any conclusion about an incomplete vocal cord lesion, the diagnosis of which “rests entirely on clinical examination which simply had to be detailed”. In particular, Ms Sisko’s tremor was “quite typical” of the types of tremors he sees in spinal lesions. He considered that Dr Keller had not taken enough detail about the actual mechanism of injury which was why he could not explain Ms Sisko’s disability in terms of the reported work incident.
Considering Dr Keller’s report of his examination, Dr Teychenne said it was “apparent that [he] was thinking in terms of radiculopathy rather than in terms of a central incomplete so vocal cord lesion”. Dr Teychenne made a detailed comparison of their findings on examination. He disagreed with Dr Keller’s assessment that Ms Sisko suffered a physical strain in the neck (and left shoulder) which would have recovered within weeks. He considered this was not a correct assessment; she sustained an incomplete central cervical cord lesion which, in his experience, particularly in a more severe patient, was permanent.
Dr Teychenne responded in detail to Dr Keller’s report of 17 February 2021 and said it seemed he did not recognise an incomplete central spinal cord lesion which, he said, on clinical grounds are very difficult to diagnose. They require very detailed analytical history and considerable experience. In his opinion, Ms Sisko “had quite a consistent underlying clinical pattern indicating a central incomplete cervical cord lesion”.
Dr Teychenne concluded:[39]
“On my assessment of Ms Sisko, I consider that she was at risk of an incomplete cervical cord lesion based on her MRI scan results and I consider that she sustained an incomplete cervical cord lesion as a result of the injury on 30 October 2017. The immediate pain that she noted into the right side of the face was consistent with the right trigeminal nerve supply, i.e. pain emanating from the spinal nucleus of the trigeminal nerve.”
[39] ARD page 2017.

Dr Teychenne described the symptoms reported by Ms Sisko following the surgery, including dizzy spells and falls, headaches and tremors, as consistent with his finding.

The applicant’s submissions

Mr Boulton submits that, in his report of 30 January 2020, Dr Teychenne took a detailed account of Ms Sisko’s body movements in the incident on 30 October 2017 and his is the most meticulous of all. He has been a consultant neurologist for 40 years.
Mr Boulton refers to the spectrum of symptoms in Dr Teychenne’s report of 5 February 2020 which he found “quite consistent” with causing and exacerbating an incomplete cervical cord lesion. He explained the quite “crucial factor” of the minimal mass effect seen on the MRI which, he said, put her at risk of incomplete lesion and which he said Dr Keller did not adequately take account of.
Mr Boulton submits that Dr Teychenne’s report of 9 August 2021 gives a detailed critique of Dr Keller’s opinion including the “significant finding” of the mass effect on the anterior aspect of the thecal sac at 6/7 which Dr Keller did not mention. Mr Bolton submits that Dr Keller did not have the same specialty and expertise as Dr Teychenne whose opinion should be preferred.
Mr Boulton submits that the crux of Dr Teychenne’s opinion is that Ms Sisko showed all the signs, symptoms and behaviour consistent with a central incomplete cervical called lesion.
Dr Keller’s opinion that her symptoms should have settled within weeks were not her experience and were based on his thinking that it was a traction injury only.
Mr Bolton submits that I would accept Dr Teychenne’s opinion because there is no contrary neurological evidence and there is no reason not to accept his opinion.

The respondent’s submissions

Mr Baran submits that the history Dr Teychenne took of migraines from when Ms Sisko was 16, and more frequently since the 2017 injury, is new. Her treating doctors did not take the history of more persistent migraines following the surgery, dizzy spells, that she needed help to lie down and sit up, as recorded by Dr Teychenne. Mr Baran submits there is either some are the cause for her symptoms, for example the narcotics she was on, or she is exaggerating.
Mr Baran submits that the evidence shows that Ms Sisko has been on heavy painkillers and medication for many years. Dr Cherukuri noted that she had been on OxyContin and Endone from 2006 following a back injury.[40] Her long-standing reliance on painkilling medication was due to her lower back injury and not the cervical spine or left shoulder injuries.
[40] ARD page 81.
Mr Baran submits that there are quite significant mistakes in the history taken by
[41] ARD page 195.
[42] ARD page 196.
Dr Teychenne. For example, he says Ms Sisko can no longer play the xylophone but her evidence is that she plays the saxophone. He records that she did not smoke but surveillance evidence shows her smoking. He noted in his report on 9 August 2021 that she had “very sharp pain at L4/5”[41] but there is no claim in respect of the lower back. He refers to weakness in dorsiflexion of the left and right big toes.[42]
Mr Baran submits that Dr Teychenne’s opinion is heavily qualified. He lists symptoms as recorded by Dr Allen which he says are “not inconsistent with an incomplete cervical cord lesion and may produce” neuropathic pain in the shoulder and symptoms down into the hand (emphasis added).[43]
[43] ARD page 202.
Mr Baran submits that the strongest weight of all should be given to Dr Cherukuri’s operation report which confirms that he undertook the procedure microscopically. He makes no reference to a lesion. It is inconceivable that Dr Cherukuri, who performed the cervical spine surgery, would have missed the presence of an incomplete cervical cord lesion, and that it would not appear in the post-operative CT scan which was unremarkable. Mr Barron submits that, if Dr Teychenne is correct, then Dr Cherukuri and pre-operative and post-operative scans all missed the lesion.

Submissions in reply

In reply to the submission that Dr Teychenne noted symptoms not recorded by other doctors, Mr Boulton submits that a doctor will take notes according to his or her specialty.
Dr Teychenne saw Ms Sisko twice, his first report devoted entirely to recording her symptoms.
Dr Teychenne did not only find signs and symptoms “consistent with” an incomplete cervical cord spinal lesion; he clearly stated his opinion that she sustained that lesion as a result of the injury on 30 October 2017.[44]
[44] ARD page 207.
With respect to Dr Cherukuri’s operation report, Mr Boulton submits that there is no medical evidence to support the conclusion that an operating surgeon would have seen an incomplete cervical spinal cord.

Consideration

There is no doubt that most of the doctors considered there were “psychosocial” factors at play in Ms Sisko’s experience of her pain. However, even Dr Keller, who found her physical symptoms inconsistent with the MRI evidence, did not say that she was exaggerating her pain, only that he could not say whether it was a result of voluntary exaggeration or “involuntary psychosocial factors”.

It appears there are some inaccuracies in Dr Teychenne’s report, whether because he documented some matters incorrectly, or because Ms Sisko gave him inaccurate information. However, a mistake as to whether she played the xylophone or the saxophone is not, in my view, material. Nor is it clear why recording that she did not smoke, when it appears that she did, would undermine his opinion generally. Neither appears to be material to his conclusion, even if incorrect.
Dr Teychenne took a history of the mechanics of the incident on 30 October 2017 in greater detail than any other doctor, and he documented some symptoms not documented by other doctors. I accept that Ms Sisko’s statement does not refer to all of those symptoms. However, I accept Mr Bolton’s submission that a doctor may take a different history, or focus on different aspects of an incident, depending on his or her area of expertise and what he or she has been asked to consider. Dr Teychenne explained the relevance of those symptoms to his conclusion. Moreover, the history he took of migraine headaches was documented in February 2018 by Dr Cherukuri, and Ms Sisko has given evidence that her tremors increased in intensity following the 2017 injury.
I agree that a finding that signs or symptoms were “not inconsistent with” an injury, or even merely “consistent with” an injury, may not be sufficient basis to conclude there was such injury. However, Dr Teychenne’s comments have to be seen in context. He documented what he considered was a range of symptoms “consistent with” incomplete cervical spinal cord lesion and he concluded that Ms Sisko had sustained that lesion as a result of the injury on 30 October 2017.
The respondent has not suggested that Dr Teychenne did not have the appropriate qualifications or expertise to make the findings that he did. He took a detailed account of the movements of Ms Sisko’s cervical spine in the 2017 incident and he undertook a thorough examination. He has explained his reasoning and why he considers reported symptoms and findings were consistent with an incomplete cervical spinal cord lesion.
The respondent submits that it is inconceivable that Dr Cherukuri would not have seen, in the course of the surgery he performed, that Ms Sisko had an incomplete cervical spinal cord lesion if one in fact existed. The difficulty I have with that argument is that there is no evidence before me as to what would, or would not, have been detectable during the procedure carried out by Dr Cherukuri or on subsequent CT scan.

Dr Keller disagreed with the findings and opinions in Dr Teychenne’s reports on the basis that there were significant differences with regard to the injury events reported to him in 2017, the consequences of those events and his physical findings on examination. Dr Keller maintained his opinion but did not explain further why Ms Sisko did not sustain an incomplete cervical spinal cord lesion.
It was open to the respondent to seek an opinion from Dr Cherukuri as to whether an incomplete cervical cord lesion would have been detectable during the procedure he performed. As it stands, I have no basis for concluding, as the respondent urges, that the injury did not occur because Dr Cherukuri would have noticed it.
It was also open to the respondent to seek an opinion from another neurologist or from
Dr Cherukuri as to whether Ms Sisko sustained injury to the central nervous system in the incident on 30 October 2017. As it stands, there is no opinion contradicting Dr Teychenne’s.
Considering the evidence before me, I am satisfied that Ms Sisko has discharged the onus on her in relation to the claim for injury to the central nervous system.

Did Ms Sisko suffer injury to her right shoulder on 30 October 2017?

In her statement, Ms Sisko describes in some detail the pain she felt in her left shoulder in the 2015 and 2017 incident, and subsequently. She describes symptoms in her right leg immediately following the 2017 incident and how it became purple and discoloured and she had difficulty walking. She describes symptoms on the right side of her neck following the cervical fusion, and the treatment for her left shoulder including the arthroscopy and cuff repair in December 2018. She makes no reference to her right shoulder.
An Injury Notification form dated 30 October 2017 describes Ms Sisko’s injury as occurring when a patient “pulled on left arm causing aggravation of former workplace injury”. The location of the injury is described as “neck and shoulder”. The injury is described as “aggravation of left shoulder and cervical spine pain”.[45]
[45] ARD page 7.
On 2 November 2017, Ms Sisko saw her general practitioner, Dr Jan Hogbin. Dr Hogbin’s notes record a history of “left neck and shoulder pains”, that a patient pulled her three days earlier, and “pain at the time – then shoulder more stiff and pain”. She noted “labral tear in shoulder” in 2015.[46]
[46] ARD page 49.
On 8 November 2017 Dr Hogbin recorded “ongoing pain in left shoulder and neck” and “felt pulling sensation and pain and stiffness in left shoulder” after pulling a patient up. She requested an x-ray and ultrasound of the left shoulder. She noted “due to see Davidson soon”.
On 22 November 2017, Ms Sisko saw Dr Allen at the same practice. Dr Allen recorded “pain+++ with vomiting and headaches” but no reference to the right shoulder or the more florid symptoms on 30 November 2017 described by Ms Sisko. The notes refer to an MRI of the neck “with no significant change” and “the shoulder”. Dr Allen referred Ms Sisko to
Dr Jansen.
Dr Davidson reported to Dr Allen on 24 November 2017. He said Ms Sisko had had another injury “stirring up her neck and left shoulder pain”. [MRI] imaging had identified “a segment of change and a probable left disc protrusion in her neck, as well as a new tear in her subscapularis possibly”.[47] He recommended hydrotherapy pending review by Dr Jansen. He made no reference to the right shoulder.
[47] ARD page 62.
Dr Jansen reported to Dr Allen on 19 December 2017[48]. He noted Ms Sisko had had injuries to her left shoulder in 2015, and on 30 October 2017 when she had a “traction injury to her left shoulder” since when she had had anterior shoulder pain, medial pain and numbness into the little and ring fingers. He noted she was currently on a return to work program with two hours of non-clinical duties. He noted that an MRI showed “some subscapular tondinopathy [sic] with small articular surface partial tear”.
[48] ARD page 63.
Although not stated, it is reasonable to infer that the reference to the shoulder in Dr Jansen’s report is to Ms Sisko’s left shoulder.
Dr Allen referred Ms Sisko to Dr Cherukuri on 2 January 2018 for “opinion and management of recent work related injury to left shoulder and neck”, noting she had had ongoing pain in her left arm and shoulder. Dr Allen made no mention of the right shoulder.[49]
[49] ARD page 67.
Dr Cherukuri reported to Dr Allen on 21 February 2018[50]. He noted a history of neck pain radiating down the left arm, and shoulder pain following the injury at work in 2015. He noted that MRIs in 2015 and 2017 showed “C6/7 disc protrusion abutting the spinal-cord with some encroachment of the foramen”. He recommended review following further investigations. He made no reference to the right shoulder.
[50] ARD page 81.
Dr Cherukuri noted the injury to Ms Sisko’s back in 2005 for which she “had surgery with some residual symptoms ever since” and that she was on OxyContin, and Endone from 2006, and Palexia, Endep and Clonzepam. He noted that she smoked up to eight cigarettes a day.
An Activities of Daily Living and Home Assistant Review Report by rehab co dated 21 February 2019[51] records a diagnosis of “aggravation of left shoulder injury and cervical spine pain”. The history of injury refers to the neck and left shoulder. Surgery to the cervical spine and left shoulder in June 2018 in December 2018 is noted, as is a previous injury to her lower back “which continues to aggravate when performing any heavier tasks or if she sits for too long”. There is no reference to Ms Sisko’s right shoulder.
[51] ARD page 143.
Dr Davies saw Ms Sisko for assessment on 4 May 2018 and 20 May 2019. His report to the insurer dated 20 May 2019 is in evidence. He noted that Ms Sisko had ongoing back and leg pain after the injury to her lumbar spine in 2005 and that she “manage to return to work” in about late 2010. He noted she had undertaken intermittent periods of suitable duties after October 2017 until just before her neck operation in June 2018 but had been off work since.
Dr Davies noted the history and his examination of the left shoulder. He diagnosed a disc protrusion at C6/7 as a consequence of the incident on 30 October 2017 and “a shoulder strain injury” but that her shoulder condition fell outside his area of expertise. The only reference to the right shoulder is where he states that he asked Ms Sisko what limited movement at the right shoulder and “she told me it caused increased pain in the neck”.
Dr Guirgis saw Ms Sisko for assessment on 19 September 2018[52]. She complained of “painful stiffness and heaviness of the left shoulder”. He diagnosed post-traumatic symptoms of subacromial impingement in the left shoulder following the 2015 injury, and further aggravation. He assessed whole person impairment of the left upper extremity. He made no reference to the right shoulder.
[52] Report at ARD page 107.
In subsequent reports dated 4 February 2020, 19 March 2020 and 23 March 2021,
Dr Guirgis refers to injuries to Ms Sisko’s cervical spine and left shoulder but makes no mention of the right shoulder.
Orthopaedic surgeon, Dr Vijay Panjratan, saw Ms Sisko for assessment on 1 May 2018 and reported on 10 May 2018.[53] He took a history of injuries to her neck and left shoulder in 2015 and 2017, and noted her complaint of persistent left shoulder pain. The sole reference to her right shoulder is that examination “revealed a normal painless range of motion”.
[53] Reply page 162.

Dr Keller saw Ms Sisko for assessment on 2 February 2018 and 13 February 2020.[54] He noted that she reported “constant sharp pain in the neck and left shoulder”. He noted, on examination, moderate to severe restriction of motion in the left shoulder. He considered it likely that she had suffered soft tissue strains to the neck and shoulder (singular). His only reference to the right shoulder is to examination of the range of movement in both. His second report is in similar terms, noting range of motion in the right and left shoulders but, otherwise, making no reference to the right shoulder.
[54] Reports at Reply pages 146 and 189.
Most of Dr Teychenne’s reports is directed to the question of whether Ms Sisko suffered an incomplete cervical cord lesion on 30 October 2017. He conducted a detailed review of reports of treating and assessing doctors following the 2017 injury, and her complaints of pain in the left shoulder following the 2015 and 2017 injuries, and radiological investigations of the left shoulder. In his report on 30 January 2020 he said he found “upper motor neuron weakness in the upper limbs, intrinsic hand muscle weakness”, and that she “had difficulty with digital dexterity”. He made no specific reference to the right shoulder.

Submissions

With respect to the claim of injury to her right shoulder, Mr Boulton submits that Ms Sisko relies on Dr Teychenne’s report on 30 January 2020 in which he found “upper motor neuron weakness in the upper limbs, intrinsic hand muscle weakness”, and that she “had difficulty with digital dexterity”.
Mr Baran submits that Ms Sisko could not have experienced the florid symptoms that she claims immediately following the 2017 incident as a result of her claimed injuries. There is no reference in Dr Hogbin’s contemporaneous notes to her right leg turning purple and feeling like wood, to numbness in her fingers, or the other symptoms described in her statement. None of the medical experts has explained those symptoms. If she did experience them, they may have been due to her prior back condition which was sufficiently serious to put her out of work for some time. I may also start to form the view that Ms Sisco’s credit is questionable. Regardless, the evidence does not support a finding of injury to her right shoulder.

Consideration

I am not satisfied, on the evidence before me, that Ms Sisko sustained injury to her right shoulder on 30 October 2015. There is a complete absence of reference to complaints of symptoms in her right shoulder and no mention of it other than in passing to the range of motion. Even then, Ms Sisko indicated that movement in the right shoulder was restricted because it caused pain in her neck.
Dr Teychenne’s finding of weakness in the upper limbs was in the context of findings that he considered were consistent with an incomplete vocal cord lesion. He also noted that, episodically throughout the examination, she would develop a marked tremor in both arms, which he considered was consistent with an incomplete cervical cord lesion.
In his assessment of whole person impairment of the spine, Dr Teychenne noted that
Ms Sisko could use both upper extremities for self-care, grasping and holding, “but had difficulty with digital dexterity”. That was in the context of assessment of the spine, and not the right shoulder, and it is notable that he referred to Dr Guirgis’ assessment of whole person impairment of the left shoulder, not the right.
Considering the lack of evidence to support a finding of injury to the right shoulder, I am not satisfied that Ms Sisko has discharged her onus in relation to this aspect of her claim.

Capacity

Ms Sisko claims she has had no current capacity for employment from 27 April 2021 as a result of her injuries.
Ms Sisko states that, since the surgery in June 2018, she has experienced tremors in her legs, arms and head. She experienced them before the surgery but they have “intensified dramatically” to the point where she has been incontinent and almost passed out. She now has persistent pain and tremors. She cannot sleep flat on her back or she will stop breathing, and she has to sleep upright in a recliner. She feels unsteady when walking and tends to trip over. She has to grab onto support rails or other nearby objects to support her while walking. She is now unable to drive because she is unable to turn her head and look all around her. The migraine headaches she has had since around the age of 16 are now much more severe and last on average around five hours. She has a spinning sensation on an almost daily basis.
Ms Sisko refers to the lower back injury in 2005 which she underwent fusion at L4/5. She says when she started her employment with the respondent she was able to do her normal duties without any difficulties on account of her back injury. Prior to the 2015 injury she had no problems with her neck and left shoulder. The problem started in 2015 and worsened after the incident in 2017.
Ms Sisco states that she is currently unable to perform any type of work. Her injuries have affected her ability to speak. She has a weak, soft, almost non-existent voice and cannot speak for any length of time. She has difficulty swallowing.
Given these problems, Ms Sisko says, it would be extremely difficult for her to perform any type of work. She refers to her employment history and says she would not be able to perform any type of work for which she is trained or experienced.

Medical evidence

Ms Sisko has submitted Certificates of Capacity for the period 11 February 2021 to 29 September 2021 from Dr Shangnan Liang.[55] Dr Liang certifies Ms Sisko as having no current capacity for any employment throughout that period. The certificates refer to the work-related injury in 2015 and aggravation on 30 December 2017.[56]
[55] ARD pages 264 ff.
[56] Evidently a typographical error as the actual date of injury stated on the certificate is 30 October 2017.
Mr Boulton submits that I would accept that there has been no change in Ms Sisko’s capacity for employment since 29 September 2021.
Mr Boulton submits that none of the other doctors offers an opinion as to Ms Sisko’s capacity during the relevant period. He acknowledges that some reports are now dated but submits that I would accept her claim but she has had no current capacity during the period claimed.
Mr Boulton cites the following evidence.
In his report dated 20 May 2019, Dr Davies noted that Ms Sisko had continued to undertake intermittent periods of suitable duties since he last saw her until just before the operation in 2018 but she had been off work since.[57] He considered that she was “totally incapacitated for work at present”.[58]
[57] ARD page 170.
[58] ARD page 175.
On 4 February 2020, Dr Guirgis reported that Ms Sisko had resumed pre-injury hours following the 2017 injury but that, as a result of that injury, she had been rendered unfit to work as a nurse and should be considered totally and permanently unfit for work.[59]
[59] ARD page 217.
Dr Gorman in his report of 24 October 2020 stated that he doubted Ms Sisko “will ever have the capacity to resume employment” and he did not believe she was fit for a vocational assessment.[60]
[60] Reply page 222.
In his report dated 12 January 2021, Dr Keller noted that Ms Sisko had a long history of prior medical conditions and pain complaints, and an extended period off work due to an unrelated lumbar spine complaint. He said it was clear to him there was psychosocial factors and psychiatric diagnoses pre-dating the 2017 injury that would influence her capacity for work and her pain experience.[61]
[61] Reply page 230.
Dr Keller said “taken on face value, Ms Sisko appears to have no capacity for gainful employment”. However, he said he was unable to explain this disability in terms of her reported work incident from 2017. It was “possible she has greater capacity for employment than apparent on today’s presentation” but that could only be assessed outside of the formal clinical process.

Surveillance material

Mr Baran refers to reports of surveillance of Ms Sisko undertaken in February 2020 and October 2020 in the Sydney CBD.[62] According to the report of the first surveillance, she was observed leaving serviced apartments and entering and alighting from a taxi without assistance, and “walking in a brisk manner” before entering a store. She was observed walking to other locations including a medical centre where she apparently had x-rays taken, before returning to her apartment. According to the report, she “carried out the above mentioned activities without any apparent restriction or discomfort” and she “did not utilise any visible medical supports or braces”.
[62] Reply page 87.
According to the report, approximately 41.41 minutes of video footage was taken. Nine still photographs are included in the report.
Further surveillance was carried out on 1 and 2 October 2020 over approximately 7½ hours, and a report was provided to the respondent’s solicitors.[63] A total of approximately 20 minutes of footage was taken. On the first day, Ms Sisko was observed walking to a medical appointment but surveillance was discontinued because her partner, who was with her, “appeared somewhat surveillance aware”. Sixteen still photographs are included in the report.
[63] Reply page 111.
Surveillance continued the following day when Ms Sisko was observed leaving her hotel “only carrying her handbag over her left shoulder”. She and her daughters took a taxi to a medical appointment after which they went to a small café. They left a short time later and she stood smoking a cigarette before walking across the street and getting into a taxi. By way of conclusion, the report stated that Ms Sisko “did not exhibit any movements inconsistent with her back or left shoulder". I take that to mean she did not exhibit any movements inconsistent with injury to her back or left shoulder, but it is not entirely clear.

The respondent’s submissions

Mr Baran submits that, contrary to Ms Sisko’s evidence that there is very little she can do because of her injuries, she was observed walking around the CBD in a brisk manner. Her presentation appears very different from what the independent medical examiners, and especially Dr Teychenne, recorded.
Mr Baran submits that there is nothing in the observations to suggest that Ms Sisko has any difficulty walking around the city, lifting her right arm to a drink, lifting her left arm at least part way, and turning her head to the right while sitting at a café, and flexing her head forward. Nothing in the photographs suggest any apparent distress.
Mr Baran acknowledges that the photographs are in the “snippets” of Ms Sisko’s activity but submits that it is quite clear she is capable of some sort of employment such as non-clinical nursing. Mr Baran submits that, if she was able to carry out these activities because she was taking her medication, the evidence shows that the medication was working and that she is capable of employment.
Mr Baran submits that Ms Sisko’s presentation is consistent with what Dr Keller found, that she could return to work for eight hours on two to three days week. He discussed the matter with Dr Allen who agreed there was no medical contra-indication to Ms Sisko performing light duties. If Ms Sisko is not capable of employment, it is not as a result of her workplace injuries.

Submissions in reply

In reply, Mr Boulton submits that the surveillance material is not relevant. In particular there is no medical evidence about it of any relevance.
Mr Boulton submits that Dr Keller’s contact with Dr Allen was within a few months of the 2017 incident. Ms Sisko’s complaints have continued for much longer as Dr Guirgis points out.
Dr Guirgis is more qualified to comment than Dr Allen who is a general practitioner.

Consideration

I accept that the surveillance material raises questions as to Ms Sisko’s claim of debilitating injuries that affect her ability to move freely and turn her head. Judging by the photographs and the written observations, she did not appear to be unsteady on her feet, and it does not appear that she had to hold onto supports.
The difficulty I have with the surveillance material is that it is, as Mr Baran acknowledges, “snippets”. It includes the observations of the investigator but only still photographs of
Ms Sisko. While the material certainly raises questions, it is not a sound basis for reaching conclusions as to Ms Sisko’s capacity for employment.
I am not persuaded that the surveillance material supports the conclusion that Ms Sisko has had current capacity for employment during the relevant period. It is true that Dr Keller only said she appeared to have no capacity for gainful employment if “taken on face value”. For the reasons he described, he could not explain her disability in terms of her workplace injury and thought it “possible” that she had greater capacity for employment then was apparent on her presentation to him that day. He considered that, if she was not capable of employment, it was not as a result of the workplace injury.

None of the doctors has been asked to comment on the surveillance material. The surveillance was undertaken in February and October 2020. It was open to the respondent to ask any of the doctors, in particular, Dr Teychenne, for an opinion as to any inconsistency in Ms Sisko’s complaints to them and her presentation in the video or photographs.

Against Dr Keller’s opinion are those of Dr Davies, Dr Guirgis and Dr Gorman and, more recently, Ms Sisko’s general practitioner who has continued to certify her unfit throughout most of the relevant period. I find that the weight of the evidence supports the conclusion that Ms Sisko has had no current capacity for employment during the period claimed, and continuing.

For these reasons, I make the determinations set out in the attached Certificate of Determination.

[2021] NSWPIC 526

17 December 2021