Stone v Gilbarco Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stone v Gilbarco Australia Pty Ltd [2023] NSWPIC 257
APPLICANT:	Raymond Barry Stone
RESPONDENT:	Gilbarco Australia Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	2 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of surgery on the cervical spine; whether injury occurred on date of accident; whether later treatment caused by accepted left shoulder surgery; Held – evidence of insufficient weight to meet onus as to either injury or main contributing factor; Pearce v Secretary Department of Communities and Justice considered; Kooragang Cement Pty Ltd v Bates considered; Qannadian v Bartter Enterprises Pty Limited referred to; award for the respondent.
DETERMINATIONS MADE:	1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Raymond Stone, the applicant, brings an action against Gilbarco Australia Pty Ltd, the respondent for a declaration that the proposed C5/6 anterior cervical decompression and fusion is reasonably necessary, and orders for the associated costs to be paid by the respondent.
Dispute notices were issued and an Application to Resolve a Dispute (ARD) and Reply were lodged in due course.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did the applicant injure his cervical spine?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was heard by video link on 31 March 2023. The application was represented by Mr Michael Hart of counsel instructed by Mr Christian Hart. The respondent was represented by Mr Andrew Combe instructed by Mr Lloyd Carman. Ms Tang appeared for the insurer.
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)    letter of instructions emailed during the hearing on 31 March 2023.

Oral evidence

No application was made.

FINDINGS AND REASONS

Preliminary

At the outset of the case Mr Hart was invited by Mr Combe to clarify the nature of the pleadings. In its original form the injury details pleaded a personal injury on 21 November 2013 which caused injuries to the left shoulder, left knee and neck.
Mr Hart made the following consent amendments:
(a)    Delete the words:
“consequential injury to the neck being an aggravation, acceleration, exacerbation or deterioration of the degenerative change.”
(b)    The description in the injury box to read:
“the worker tripped on an unmarked ledge when entering accommodation, falling onto his outstretched hand, and suffering injuries to the left shoulder, left knee and neck...”
(c)    The type of injury box was amended to read:
“injury to the neck causing aggravation exacerbation acceleration and deterioration of a degenerative disease to the cervical spine.”

Evidence

Statement Mr Stone

Mr Stone made a statement on 5 October 2022. He said that he had been working for the respondent since about 1990 as an LPG supervisor and service technician.
Part of his duties required Mr Stone to travel, quite often, to Taree.
On 21 November 2013 his motel allocated him a room he had not stayed in before. He tripped whilst walking back into his room, carrying his goods. He fell on his left knee and the palm of his outstretched left hand.
He said:[1]
“When my left palm hit the step entry, I jolted my left shoulder. At the time I had pain in my left shoulder, left knee and neck.”
[1] ARD page 2.
When he woke the next day he had pain in his neck, left shoulder, left hand, left arm and left knee so he went to the local Manning Base Hospital. His left knee was bleeding at the time and he underwent an X-ray of his left shoulder and left knee. His shoulder was shown to be dislocated. The left knee did not display any fracture.
He said when driving back from Taree to Newcastle, he had difficulty changing gears with his left hand “due to pain in my left arm, shoulder and base of my neck”.
He consulted his general practitioner (GP) Dr Swanson and came under the care of Dr Petrelis, shoulder surgeon.
He came to surgery with Dr Petrelis on 10 December 2013. He said he was then referred to physiotherapy for his left shoulder “and neck” at Macquarie Physio.
He said that on 26 February 2014 Macquarie Physiotherapy was treating his “shoulder and neck” with physiotherapy.
Unfortunately on 1 March 2014 he slipped and fell at his daughter’s wedding at a restaurant in Shoal Bay. He fell down two or three stairs. He said at [17]:
“…As I fell my left arm and shoulder ended up going through the slats of a wrought iron gate. I was immediately worried about my left shoulder which had been operated on.”
Mr Stone went to the Nelson Bay Poly Clinic and was kept there overnight.
He said at [19]:
“Following the slip and fall I had an increase in pain in my left shoulder, some pain on the left side of my upper back, neck, some bruising on my left arm and on my shins.”
Mr Stone attended Belmont District Hospital on 11 March 2014 regarding his shoulder. He had increased pain in his left shoulder, left ribs and the left side of the neck at that time. Mr Stone noted that the discharge summary diagnosed him with a neck sprain.
He said at [21] :
“Prior to 1 March 2014 and following the fall on 21 November 2013 I had pain in my neck that was constant but minor. After 1 March 2014 for about a month I had increased pain on the left side of my neck and then the pain in my neck returned to the minor level that it had been before 1 March 2014.”
Mr Stone said that on 7 June 2014 whilst doing home exercise physiotherapy he noticed an increase of pain in his left shoulder, left elbow and neck. At the time he said his main problem was still the left shoulder but he did notice an increase in the neck pain from being minor to being more noticeable. He was given treatment on his neck and required physiotherapy which he had with Macquarie Physio. Mr Stone thought that had been paid for by the insurer.
At [28] Mr Stone said:
“I have had neck pain ever since the fall on 21 November 2013. At that time the pain in my left shoulder was paramount and it got treatment and was the source of the most of my treatment and complaints. Then gradually got worse and it was in April May 2020 Dr Swanson referred me to Dr Spittaler, Neurosurgeon.”
Mr Stone said he then saw “Dr Spittaler and Dr Abson for a second opinion.”
He said he had had a nerve conduction study and had been told that he needs to have surgery on his neck to alleviate the symptoms which he was suffering in his left arm and left hand.

Dr Swanson

Dr Michael Swanson was Mr Stone’s GP. He supplied computerised and handwritten notes. Of relevance is a referral he wrote to Dr Spittaler on 16 April 2020.[2] Dr Swanson wrote:
“[Mr Stone] originally had a work related accident where he slipped on an expansion joint falling onto his !eft outstretched arm and then· rolling onto his left shoulder. He unfortunately subluxed his left AC joint and tore his Rotator cuff which required a surgical repair by Dr Petretlls. While he had no specific neck pain at the time – probably because his shoulder was so sore but after the surgery he began to complain of increasingly problematic neck pain which refers to his shoulder. He has had a suitable exercise program and physio but it has steadily become worse and refers to his shoulder. He has had an MRI - see attached. I feel his Injury has contributed to his neck pain and would value your opinion re further treatment.”]
[2] Reply page 108.
Dr Swanson responded to a request for a medico-legal report from Mr Stone’s solicitors on 29 November 2022.[3] He gave a consistent history of the accident of 21 November 2013, and said that he first seen by Mr Stone on 25 November 2013, when complaints of left shoulder and left knee pain were made.
[3] ARD page 118.
Dr Swanson said:
“My comment would be that given his significant injury to his left shoulder he would not have mentioned any neck pain. Also given his full, considerable weight going onto his outstretched left hand it is conceivable that he would have sustained an injury to his cervical spine.
The first mention of neck pain in my notes was on the 26/2/2014. He complained of neck and upper thoracic spinal pain. He stated that the physio as well as working on his left shoulder also did some manipulating and dry needling in the region of his cervical and upper thoracic spine. The comment I made in my notes at this time that Mr Stone was experiencing persisting problems with his left shoulder and … an aggravation of neck pain.”
Dr Swanson described consistently the second accident of 1 March 2014, which was taken on 12 March 2014. He said:
“When I saw Mr Stone on the 12/3/14 there was no mention of neck pain and a diagnosis of an aggravation of his left shoulder injury and a rib injury was made.
Without going exhaustively through every line entry it would be reasonable to say that he had some ongoing neck pain from the original injury and received physio at Macquarie Physiotherapy for this.”
Dr Swanson noted that it would take him several hours to report on every entry. Later in his report, referring to the incident of 1 March 2014, he said:[4]
“After the incident at The Catch Restaurant [Mr Stone] mentioned left shoulder pain, rib pain, thoracic pain and neck pain to the doctor at Belmont hospital but when I saw him he only mentioned left shoulder pain and rib pain……. It would be reasonable to state on the balance of probability that the original fall was the main contributor to his current neck problem.”
[4] ARD page 119.

Dr Bodel

Dr James Bodel, orthopaedic surgeon, was retained as Mr Stone’s medico-legal expert. Dr Bodel issued five reports dated 5 August 2016, 20 June 2019, 10 November 2020, 14 September 2021, and 12 July 2022. In none of his reports did he take a history of injury of 1 March 2014.
In his 5 August 2016 report, Dr Bodel noted injuries to the left shoulder and the left knee.[5] He described the trip and fall in the motel on 21 November 2013, noting that the next morning Mr Stone had quite severe pain in the “head and neck and left shoulder girdle pain, left hand pain and left knee pain” and that he was seen at Manning Base Hospital.
[5] ARD page 123.
Dr Bodel examined the neck, noting “slight restriction of neck flexion, extension and rotation.” Dr Bodel noted no formal investigations of the neck. He diagnosed that Mr Stone had a soft tissue injury to the neck, which was causally related to the injury of 21 November 2013.
On 20 June 2019 Dr Bodel again identified the injuries as being to the left shoulder and the left knee.[6] He repeated the history of the injury of 21 November 2013, and again noted there had been no investigations of Mr Stone’s neck, which still caused soreness, stiffness and weakness (along with the shoulder). Dr Bodel noted a subsequent injury of 3 February 2017 in which Mr Stone fell and fractured three ribs, putting him in hospital for seven days. Dr Bodel noted that Mrs Stone had to help her husband after that. Dr Bodel noted that “surprisingly” Mr Stone had been able to return to pre-injury duties.
[6] ARD page 132.
On 10 November 2020 Mr Stone was recovering from bilateral knee replacements when seen By Dr Bodel.[7] In his summary of injuries on this occasion, Dr Bodel again identified injuries to the left upper extremity and the left knee, the latter having resolved. He also included on this occasion:
“Consequential injury to the neck.”
[7] ARD page 140.
Dr Bodel repeated the history given in his previous two reports, including the reference to Mr Stone’s neck pain the morning after 21 November 2013. He again noted a subsequent fall on 3 February 2017 where Mr Stone fractured some ribs. Dr Bodel noted a reduced range of motion in the neck on examination. He noted a report from Dr Peter Spittaler of 7 May 2020 which recommended a posterior foramenotomy at C3/4, C4/5 and at C6/7. Dr Bodel’s diagnosis was of the aggravation exacerbation acceleration and deteioration of degenerative disc disease. Dr Bodel thought that future treatment would likely include the recommended surgery.
On 14 September 2021 Dr Bodel noted that Mr Stone had also been seen by Dr Simon Abson who recommended an anterior cervical decompression and fusion at C5/6 – the surgery that is the subject of this application. Having read the relevant documentation, Dr Bodel said:
“I accept that assessment and the C5/6 anterior cervical decompression and fusion is reasonably necessary treatment under the circumstances.”
In his final report of 12 July 2022, Dr Bodel noted “the updated history.” He said:[8]
“I am satisfied that the injury to the neck is the aggravation, acceleration, exacerbation and deterioration of well-established degenerative disc disease which is confirmed in the various investigations that have been undertaken. This was rendered symptomatic by the initial incident at work in 2013. Over time, it has steadily deteriorated while he has been undergoing his treatment for the left shoulder.”
[8] ARD page 153.

Dr Peter Spittaler

Dr Peter Spitaler, consultant neurosurgeon, reported on 7 May 2020. An MRI scan of Mr Stone’s cervical spine had been taken on 2 April 2020, and Dr Spittaler said:[9]
“… Reviewing his MRI of the cervical spine he has quite severe spondylitic change with some canal narrowing but certainly no cord compression. Of relevance is multilevel foraminal stenosis; this is bilateral at C3/4 and could explain the neck pain on the basis of root compression. It is also present at C4/5, C5/6 and C6/7. The patient’s symptoms would fit with root compression at C4/5, causing shoulder pain and C6/7, causing scapular and triceps pain. There is no pain in the biceps, so I don’t think C5/6 is symptomatic.”
[9] ARD page 105.
Dr Spittaler took a history of only the 21 November 2013 event, and did not mention the subsequent incident on 1 March 2014. He said:[10]
“The patient had an injury in November 2013 where he tripped on an expansion joint when he was going onto a motel room in Taree after he finished work. He landed on his left arm and injured his left shoulder and that has been the focus of his treatment. He has had several operations on the shoulder, the last one he felt making him worse. His current symptoms are of bilateral neck pain with radiation in the left shoulder as well as pain in the left scapula and triceps region.”
[10] ARD page 105.

Dr Simon Abson

Dr Simon Abson, spinal surgeon, reported to Dr Swanson on 17 March 2021. As noted above, he provided a second opinion regarding the advisability of surgery to the cervical spine. Dr Abson took no history of the trip and fall of 1 March 2014, confining the relevant history to the fall in the motel in 2013. Dr Abson stated:[11]
“Issues
1. Chronic left shoulder pain following a work cover injury in 2013. He has had three previous surgeries involving a decompression and rotator cuff tear repair.
2. Referred arm pain in the C6/7 distribution into the thumb and the middle finger of intermittent nature but associated with his work injury.”
[11] ARD page 107.
Dr Abson referred to an offer of surgery at multiple levels by another surgeon, including C3/4, but Dr Abson thought that was not relevant to his current findings. He said:
“… I think there is a component of mechanical pain in his shoulder related to previous surgery and possible recurrent rotator cuff tear. I have arranged for him to have a repeat MRI to exclude this…”
On 16 June 2021 Dr Abson reported again to Dr Swanson.[12] Dr Abson had the results of a nerve conduction study which confirmed a radiculopathy stemming from the cervical spine. Dr Abson was of the view that Mr Stone had two level disease, the most symptomatic of which was at C5/6. There was also pathology at C3/4 that could be done at a later stage but did not appear to be a major issue at that time.
[12] ARD page 113.
On 18 June 2021 Dr Abson wrote to the insurer seeking approval for surgery to address a disc prolapse at C5/6. On 21 June 2021 Dr Abson clarified with the insurer that he wished to perform an anterior cervical decompression and fusion to treat a symptomatic C5/disc causing foraminal stenosis and radicular symptoms in the arms. Dr Abson also noted an “incidental finding at C3/4” which had no clinical relevance. He recommended doing the one level “in order to do the least possible to achieve a successful outcome.”

Clinical notes

The Emergency Department Triage notes from Manning Base Hospital on 22 November 2013 reported that Mr Stone gave a history of tripping over a concrete ledge and landing against a doorway.[13] Complaints were recorded of pain in the left arm and left knee:
“Went to work this am but pain prevented him from doing. Left arm no obvious swelling or deformity but limited ROM and c/o pain mid upper arm with movement…”
[13] ARD page 37.
The Attending Medical Officer noted symptoms in the left shoulder and left knee. The notes also indicated “This is workcover.”
Ms Katherine Summers of Macquarie Physiotherapy issued a Physiotherapy Management dated 19 December 2013.[14] The insert to the document revealed that this was the initial consultation for Physiotherapy Management Plan No 6, and under the heading “workplace injury” to which this plan relates were written in handwriting, “L shld + neck.” Unsurprisingly, no details regarding the injuries were given.
[14] ARD page 53.
A report from Dr Petrelis dated 10 December 2013 recorded that Mr Stone underwent left shoulder surgery on 4 December 2013.[15] The referral for physiotherapy was shown to be by Dr Petrelis and it may thus be presumed that the Physiotherapy Management Plan related to Mr Stone’s recovery from that surgery.
[15] ARD page 47.
Mr Stone’s accident of 1 March 2014 resulted in his attending the Tomaree Community Hospital.[16] The Triage notes dated 2 March 2014 recorded that Mr Stone had been brought in by ambulance:
“…after falling down 2 stairs hitting left shoulder on a gate. Previous rotator cuff repair Dec 2013…”
[16] ARD page 165.
The clinical notes stated:
“fall injury L shoulder/clavicle
Was at a wedding, tripped over a step, hit l shoulder on the gate tender claivicle/ l anterior shoulder
…
Dx [diagnosis]
(i) clavicle #
(ii) Humeral head #”
Mr Stone revisited the hospital on 11 March 2014. The Emergency Department Triage notes said:[17]
“… States slipped/fall down 3 – 4 stairs on 1/3/14. Left shoulder and arm went through wrought iron gate. Saw Dr and has had x-ray. C/O increased pain. States pain to left shoulder, left side of mid thoracic back, neck and bruising to under arm and to bilateral shins…
… Fall 7/7 ago when fell down stairs at [wedding] developing pain to left shoulder, left ribs and left side of neck….”
[17] ARD page 156.

Dispute notices

54. The claim was denied as the dispute notices asserted that Mr Stone could not establish that his employment had been the main contributing factor to his cervical condition. The five notices issued all relied on the opinion of Dr Vidyasagar Casikar, neurosurgeon, retained as the respondent’s medico-legal advisor.[18]

[18] The dispute notices are at ARD page 7 (18 January 2022); ARD page 16 (11 March 2022); ARD page 22 (26 September 2022); Reply page 1 (22 December 2022) and ARD page 31 (13 February 2023).

Dr Casikar

55.Dr Casikar provided reports on 7 April 2021, 26 October 2021, and 23 November 2022. His advice was consistent throughout those reports. Whilst he took a consistent history of the 21 November 2013 injury, he did not relate the history of 1 March 2014 until his third report.

56.In his report of 7 April 2021 Dr Casikar noted a consistent account of the injury of 21 November 2013. Dr Casikar noted the complaints of pain in the left side of the neck and of pins and needles in the left index and middle fingers after the third surgery.
57.He noted the MRI scan of 2 January 2020 which showed multi segment degenerative disease with evidence of canal stenosis at C5/6 and left annular narrowing at C3/4.
58.His diagnosis was of a constitutional degenerative disease of the neck.

59.Dr Casikar said:[19]
[19] Reply page 11.
“The neck pain that he complains about is a common feature of shoulder problems.
Considering the fact that there is no verifiable neurological findings following the injury of 2013, in my opinion his neck pain is due to the soft tissue injury to the shoulder.
The radiologist reports narrowing of the C3/4 segment and C5/6 canal stenosis. These are features of degenerative disease with a genetically determined constitutional problem. Mr Stone has had replacements of both his knees and his hips which strongly suggests that he had degenerative arthritis in other areas of the body. Therefore I do not believe that the surgery suggested by Dr Spittaler is necessary (sic) a consequence of the injury he had on 21 November 2013.”

60.On 23 November 2022, Dr Casikar said:[20]
[20] Reply page 23.
“Considering there is foraminal stenosis at C5/6, the surgery suggested by Dr Abson is acceptable to address this pathology in the neck. However, it is essential that there should be clinically verifiable evidence to suggest the surgery and further I find it very difficult to support that the need for this surgery now is related to the injury that occurred nine years ago. This causation is not supported by medical evidence.”

61.In considering Dr Bodel’s opinions Dr Casikar said that whilst Dr Bodel identified neurological symptoms he did not confirm that there was a neurological injury. He said that there should be “clinical evidence of the corresponding nerve root.”
62.Dr Casikar thought the neurological examination was not diagnostic.
63.Dr Casikar diagnosed a soft tissue injury to the left shoulder with possible soft tissue aggravation on pre-existing cervical spondylosis. He said:[21]
[21] Reply page 11.
“The aggravation to his cervical spondylosis has resolved. …The neurological findings were negative. Therefore I do not believe there is any persistent neurological component to his workplace injury. …
The diagnosis of neck pain as a consequence of the workplace injury is difficult to sustain. He has constitutional degenerative disease of the cervical spine. This was not caused by the injury. It is possible that he had a soft tissue injury to the shoulder which in my opinion has stabilised. His present complaints of neck pain are mainly due to the shoulder problem. Neck pain is common to both shoulder and cervical spondylosis.”

64.Dr Casikar repeated further in his opinion:[22]
[22] Reply page 12.
“The MRI examination suggests that he had a pre-existing degenerative condition. This is not relevant to the current diagnosis. In my opinion, Mr Stone’s neck pain is not related to degenerative disease. In my opinion, this is mainly due to the soft tissue injury to the shoulder. Therefore in my opinion the workplace injury of 21 November 2013 is not the contributing factor to his degenerative disease of the cervical spine.
It is possible that he had a soft tissue aggravation to the pre-existing degenerative disease. He did not develop any neurological symptoms following this fall. He developed neurological findings in the left shoulder following left shoulder surgery.
Therefore, in my opinion the aggravation to his cervical degenerative disease that he possibly had as a consequence of the fall, has resolved. His current neurological symptoms are predominantly due to the post-surgical problems in the left shoulder.”

65.In his report of 26 October 2022, Dr Casikar again considered the neck pathology in the light of the pleaded injury.[23] He again took no history of the slip and fall on 1 March 2014. Dr Casikar adhered to his opinion that Mr Stone’s complaints of neck pain were as a result of the shoulder pathology.
[23] Reply page 14.
66.In his third report of 23 November 2022 Dr Casikar took the history of the incident on 1 March 2014.[24] He noted:
[24] Reply page 17.
“[Mr Stone] had three surgeries to his left shoulder. He indicated that he had neck pain since 2013. The neck initially improved partially after the shoulder surgery.
In 2014 at a wedding, he slipped and fell. He seems to have injured his left arm and the left knee. He indicated that the neck pain has been progressively increasing since then.”

67.Dr Casikar confirmed his initial opinion. He noted that the neurophysiology examination was not clear and that indeed clinical examinations by both Dr Bodel and Dr Abson had been negative on more than one occasion. He said that his clinical examination did not indicate any definite evidence of nerve root involvement, save at C4/C5 which was related to the shoulder surgery. Dr Casikar said:
“… I do not believe that the injury that occurred in 2013 has persisted but probably had an aggravation, however this aggravation would not have lasted for so long.
Further, the physiotherapist indicates that the neck pain started on 9 July 2014 following his fall at the wedding. However, Mr Stone indicates that the neck pain was there even before this fall and this is obviously an inconsistency.”

68.Dr Casikar advised that the surgery for the management of degenerative disease of the cervical spine suggested by Dr Abson was acceptable, but he failed to see any evidence to support that Mr Stone’s present condition was related to the injury of 2013.

SUBMISSIONS

Mr Combe

69.Mr Combe submitted that the applicant had failed to meet his onus. In view of the consent amendments to the pleadings Mr Stone was required to prove that the necessity for surgery to his cervical spine arose from the aggravation, exacerbation, acceleration and/or deterioration (“aggravation et cetera”) of his degenerative disease, the main contributing factor to which had been the injury of 21 November 2013.
70.Mr Combe submitted that although the applicant’s statement asserted that he was suffering from neck pain the next morning, there had been no such complaint recorded at the Manning Base Hospital or to Dr Swanson, who only recorded left arm and left knee symptoms.
71.Mr Combe submitted that the caution referred to by the Court of Appeal in Mason v Demasi[25] regarding the use of clinical notes in the fact-finding process could nonetheless be balanced by the fact that the hospital notes indicated this was a workers compensation matter, and it could be expected that complaints would have been clearly recorded.
[25] [2009] NSWCA 227.
72.Similarly, all the material relied on by the applicant prior to the injury of 1 March 2014 were concerned with Mr Stone’s shoulder condition, for which he was referred for physiotherapy, and management by Dr Minas Petrelis, an orthopaedic surgeon, with whom Mr Stone came to shoulder surgery in late 2013. Mr Combe referred to all the contemporaneous material that was before the Commission to demonstrate that no complaint was made regarding Mr Stone’s neck. Time does not permit an exhaustive survey of those submissions, but they are on the record.
73.The first mention of Ms Stone’s neck was by the physiotherapist, Mr Combe said, appeared in a physiotherapy report dated 19 December 2013.
74.Mr Combe then referred to the fall at Mr Stone’s daughter’s wedding on 1 March 2014. He noted the continuing reference in the contemporaneous material after that time to the applicant’s neck symptoms.
75.He submitted that it was the fall on 1 March 2014 that was the material factor in causing Mr Stone’s neck complaints and the subsequent development of them to the stage where he now requires surgery.
76.Mr Combe conceded that if I accepted that the injury had occurred then the recommended surgery was reasonably necessary.
77.Mr Combe referred me to the GP, Dr Swanson’s report of 29 November 2022. He said that although Dr Swanson referred to an entry in his notes on 26 February 2014 about Mr Stone’s neck pain, the notes themselves did not support that assertion.
78.Mr Combe referred to the computerised notes of 26 February 2014 in that regard.[26]
[26] From ARD page 201.
79.Mr Combe submitted that the computer-generated notes did not confirm the neck complaint referred to. In answer to a question, he conceded that there were no complaints of any symptoms at all in that computerised record but that it was simply concerned with prescriptions printed and letters created. However, Mr Combe said that there were handwritten notes which did not confirm any complaint about neck pain.
80.He referred to Dr Swanson’s notes which Dr Swanson said were made on 26 February 2014. He submitted that the entry date appeared to have been altered.
81.Mr Combe submitted that the first clear note of an injury to Mr Stone’s neck appeared in the Belmont Hospital Discharge Summary of 11 March 2014, following Mr Stone’s fall on 1 March 2014. It was obvious, Mr Combe submitted, that the material factor in the onset of that neck complaint was the incident on 1 March 2014, and there was no evidence that it was related to the subject injury of 21 November 2013.
82.The subsequent entries in the clinical notes did mention the neck, but Mr Combe submitted that the evidence demonstrated that the neck complaints arose following the incident on 1 March 2014.
83.Mr Combe referred to handwritten notes from Macquarie Physiotherapy and noted that treatment was given to Mr Stone’s neck, but subsequent to the 1 March 2014 incident. Whilst one of the physiotherapy notes apparently dated 20 November 2015 did imply that there had been a secondary neck injury on 21 November 2013, the note made no mention of the subsequent injury of 1 March 2014 that had clearly caused the neck pain, Mr Combe said.[27]
[27] The note is at ARD page 89.
84.Mr Combe submitted that Dr Spittaler’s opinion of 7 May 2020 was of little probative weight as he had not taken the history of the 1 March 2014 trip and fall. The radiology by that time, some seven years later, did confirm pathology in the cervical spine, but there was no evidence that there had been any neck symptoms from the injury of 21 November 2013.
85.Mr Combe then returned to Dr Swanson’s report, submitting that the entry allegedly of 26 February 2014 itself had very little weight in any event because the date had been altered and was indecipherable. The date was out of order in the notes and did not make any sense. It did not support any conclusion that Mr Stone complained of neck symptoms to Dr Swanson on 26 February 2014. The notes were unclear, and Mr Combe could not see any reference to the neck in any event.
86.Mr Combe addressed the reports of Dr Bodel, submitting that this was where the significance of the amendments made at the beginning of the case was evident. Dr Bodel initially did not take any history of a neck injury at the scene on 21 November 2013, but simply diagnosed a soft tissue injury to the neck, which would constitute, Mr Combes argued, a consequential condition and not an injury. Indeed Dr Bodel initially described the injury as consequential in his report of 10 November 2020. The alternative opinion of the aggravation of degenerative change was not made until 2022 and took a history of immediate neck pain at the scene on 21 November 2013.
87.The lacunas in the evidence prevented the applicant from establishing that Mr Stone’s employment was the main contributing factor to the aggravation etc of the neck, Mr Combe said. The onset of neck pain plainly did not occur until after the event of 1 March 2014 – an event that had not been taken into account by any of the applicant’s doctors save Dr Swanson. The medical experts were accordingly not given a fair climate to form a view that could be accepted by the Commission.
88.Mr Combe said that Dr Casikar’s opinion was that neck pain was caused by the shoulder injury would still lead to a conclusion that employment had not been the main contributing factor to Mr Stone’s neck condition, even though he did not use the correct language in that regard.

Mr Hart

89.Mr Hart referred to Dr Swanson’s report. In reference to Mr Combe’s submissions Mr Hart said that Dr Swanson “was not going to make this up.” He argued that Dr Swanson had obviously consulted his notes at the time he made his report in November 2022.
90.Mr Hart referred to State Transit v El-Achi[28] as to the application of the main contributing factor in a factual situation. He submitted that the question of whether employment had been the main contributing factor was a matter for the Commission on the balancing of all of the evidence before it, and not just the advice of a medico-legal expert.
91.Mr Hart submitted that there was sufficient within the expert evidence for me to be satisfied that the employment was the main contributing factor.
92.He relied on Dr Bodel’s later report of 12 July 2022 that Mr Stone’s diagnosis was the aggravation, acceleration, exacerbation and deterioration of well-established degenerative disc disease. This was compelling support for the proposition that employment was the main contributing factor, Mr Hart argued.
93.Mr Hart referred to the Macquarie Physiotherapy case history of 19 December 2013. It was in Mr Stone’s handwriting and identified his complaints firstly as “shoulder to elbow pins needles to fingers wrist aches since accident 21-11-13”. Counsel also relied on the Physiotherapy Management Plan No 6, commenting as he did that it was a bit “cryptic why [the plans are] not all in there.” The form identified that the left shoulder and neck had been injured on 21 November 2013 and that 45 consultations had been held as of 19 November 2014, he said.
94.Mr Hart submitted that when put into context with Mr Stone’s evidence that the primary function of his treatment had been for his severely injured shoulder, I could therefore be satisfied that Mr Stone had been suffering symptoms in his neck as well. Mr Hart said it was common experience that a specialist with particular expertise would focus on his speciality and not necessarily be concerned with other symptomatology. Mr Hart submitted that this was what had occurred in the present case with Dr Petrellis.
95.Mr Hart conceded that Dr Bodel had not taken a history of the fall of 1 March 2014, but he submitted that there was sufficient analysis from both Dr Bodel and Dr Casikar to supply the support needed to establish that employment had been the main contributing factor.
96.Mr Hart submitted that Dr Bodel had noted the complaint about pain in the neck in his first report of 5 August 2016.
97.He said that there was enough evidence in the applicant’s statement and the corroborative notes by both Dr Swanson and the physiotherapy record to establish that Mr Stone had been suffering pain from his neck since the date of the accident. The challenge to Dr Pearce Swanson’s report falls away, Mr Hart said, when the computerised records showed entries on the same dates as appeared in Dr Swanson’s handwritten notes. There could be no doubt that the reference to Mr Stone’s neck was made on 26 February 2014 – prior to the event of 1 March 2014.
98.Mr Hart submitted that the reason the neck symptoms had not been the subject of medical attention could be seen from Dr Swanson’s referral to Dr Spittaler in April 2020. He submitted that in the context of the events described by Dr Swanson I could be satisfied that the applicant’s neck condition had been caused in the event of 21 November 2013, and that employment had been the main contributing factor.
[28] [2015] NSWWCCPD 71.

DISCUSSION

99.Section 4 of the 1987 Act defines “injury” relevantly as follows:
“(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--
(i) …
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and…”

State Transit v El-Achi, the case cited by Mr Hart, was considered in a discussion of the term “main contributing factor” in Pearce v Secretary, Department of Communities and Justice[29] per Member Anthony Scarcella, who said from [153]:
[29] [2023] NSWPIC 4
“153. …The word ‘main’ in the phrase ‘main contributing factor’ means ‘chief’ or ‘principal’.
154.   Roche DP in State Transit Authority v El-Achi (El-Achi) said:
‘hat a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.’
155.   In AB v AW, a case involving s 4(b)(ii) of the 1987 Act, Snell DP agreed with the above quoted passage in El-Achi and observed that the following could be taken from the relevant cases:
‘(a)The test of “main contributing factor” in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of “main contributing factor” is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.’
156.   Whether the employment was capable of causing injury is not to the point. The worker carries the onus of establishing that the employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration: Mannie v Bauer Media Pty Ltd^] (Mannie). Each case must be determined on its own facts.”
[Citations omitted]
In considering the significance of the facts relied on by both sides, the causal chain must be evaluated. If a link becomes so attenuated in a common-sense consideration of that chain then, for legal purposes, the causative connection is snapped, to use the analogy of Kirby P in Kooragang Cement Pty Ltd v Bates.[30]
[30] (1994) 35 NSWLR 452; 10 NSWCCR 796 ; cited in Sydney South West Area Health Service v Dyer [2012] NSWWCCPD 46 at [46] per DP Roche.
Thus the onus is on the applicant in the present case to establish:
(a) that the accident of 21 November 2013 caused an aggravation, exacerbation, acceleration or deterioration of a degenerative disease of Mr Stone’s cervical spine, in terms of the amended pleadings, and
(b) that his employment was the main contributing factor thereto.
The first difficulty with Mr Stone’s case is that there was no contemporaneous support for his claim that he injured his neck when he tripped on entering his motel room. The Emergency Department Triage notes from Manning Base Hospital recorded complaints of pain only in the left arm and knee.

The second difficulty is that whilst Mr Stone continued to receive medical attention for his injured shoulder, he did not make any complaint about symptoms in his neck until after he had come to surgery with Dr Petrelis for his left shoulder on 4 December 2013. The first record in the contemporary notes was in the Macquarie Physiotherapy management Plan of 19 December 2013. Complaints of neck pain were also made to Dr Swanson on 26 February 2014. (I note Mr Combe’s inability to locate such complaints, but the transcript shows that I was able to make out the word “neck” twice in Dr Swanson’s handwritten (and sometimes indecipherable) notes.)
The third difficulty is that Mr Stone suffered an unfortunate fall whilst at his daughter’s wedding on 1 March 2014, which resulted in his admission to the Emergency Department of Tomaree Community Hospital on 2 March 2014 and then 11 March 2014. The injuries complained of on 2 March 2014 in the triage notes were restricted to the left clavicle and humeral head of the shoulder. However on 11 March 2014 complaints were noted in the area of the mid thoracic back, the neck and the left shoulder.
Mr Hart sought to counter the inferences that the respondent said arose from those facts. He said that in the first place Mr Stone’s evidence was that he had indeed been suffering constant symptoms in his neck since the injury of 21 November 2013, but that treatment of his shoulder was “paramount.” He said that the neck problem “gradually got worse” until the proposed surgery was recommended in 2020.
Mr Hart noted that Mr Stone also said that the fall on 1 March 2014 increased his neck pain for about a month, but then it returned to the “minor level” it had constantly been since the subject injury. In fact, Mr Stone said that after a month the neck pain “returned to the minor level it had been before 1 March 2014.”
Mr Hart also relied on the report of Dr Swanson, who was undoubtedly supportive but who also had to concede that Mr Stone had not complained to him of neck symptoms until 26 February 2014. I quite agree with Mr Hart that Dr Swanson was “not going to make this up” and accept that, not withstanding the ambiguity of the date entry in the note itself, that it was in fact made on 26 February 2014. This confusion as to the date demonstrates the importance of the warning given by such cases as Mason v Demasi against relying or putting too much emphasis on the clinical notes.[31]
[31] See discussion in Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50.
However, Dr Swanson’s comment that it was “conceivable” that Mr Stone sustained an injury to the cervical spine when he fell forward on his left hand does not assist, as it is speculative, if not advocative. Moreover, the absence of any complaint at Manning Base Hospital – particularly when it was noted that this was a workers compensation claim – raises some doubt about whether an injury to the cervical spine had occurred on 21 November 2013. The recorded complaint of 19 December 2013 was on the first of 45 consultations with the insurer’s physiotherapists, who were treating the left shoulder. It has not been argued that the neck pain was consequential to the subject injury. It does not assist the question of whether Mr Stone had been suffering neck pain since 21 November 2013.
Similarly, Dr Swanson’s handwritten note did no more than show that entries had been made about the neck on more than one occasion on 26 February 2014. Most of the handwriting was illegible and the references to the neck are also of very little weight in the chain of causation the applicant must establish. Dr Swanson’s explanation that the note indicated an aggravation of neck pain and dry needling in the region of the cervical and thoracic spine did not link that treatment with any neck injury on 21 November 2013. It was more likely treatment given following the shoulder surgery, as it was administered by Macquarie Physiotherapy who were being funded by the insurer for the left shoulder rehabilitation.
Further, Dr Swanson’s logic was difficult to follow when he advised that because Mr Stone did not complain to him of neck pain on 12 March 2014, the original fall was the main contributing factor. It is certainly evidence that confirms that Mr Stone’s neck condition was aggravated by the 1 March 2014 fall, and then settled down, as he said in his statement. As indicated, Mr Stone said his pain returned to his pre-1 March 2014 level.
I also do not agree with Dr Swanson, with respect, that it was reasonable to say that Mr Stone had some ongoing neck pain from the original injury, as after an exhaustive investigation of his clinical notes no entry to that effect was identified, contrary to the inference made by Dr Swanson. Mr Stone also did not receive physiotherapy for ongoing neck pain from the 21 November 2013 event as Dr Swanson alleged. He received physiotherapy following his shoulder surgery of 4 December 2013, as indicated.
This sequence of events also gives some credence to Dr Casikar’s opinion that Mr Stone’s neck symptoms had been caused by the shoulder surgery, which was not an uncommon phenomenon.
There was no real dispute within the medical evidence, as it has been conceded that the proposed surgery is reasonably necessary.
Dr Bodel’s opinion of 5 August 2016 was based on an assumption that Mr Stone had injured his neck on 21 November 2013, and “was seen at” (by which I assume Dr Bodel thought it had been reported to) Manning Base Hospital. However, that assumption was not confirmed in the contemporaneous notes of the Manning Base Hospital, nor in any other contemporaneous material until after the shoulder surgery of 4 December 2013.
Dr Spittaler took a history of injury only to the left arm and left shoulder in the subject incident. He noted Mr Stone’s current symptoms (as of 7 May 2020) but made no comment as to their cause.
Dr Abson also described the injury “in 2013” as a “chronic left shoulder pain following a work cover injury in 2013.” Dr Abson noted the three previous left shoulder surgeries and diagnosed that Mr Stone was suffering referred arm pain in the C6/7 distribution of an intermittent nature “but associated with his work injury.” This history again was not corroborated by any contemporaneous evidence, and without more was too vague after eight or so years to have any weight as demonstrating that the 21 November 2013 incident injured Mr Stone’s neck. Dr Abson’s conclusion that the neck was associated with Mr Stone’s work injury may well have been in the context that the left shoulder treatment had caused the cervical spine symptoms.
Thus Mr Stone has no contemporaneous support for his claim that he injured his neck on 19 November 2021. Accordingly, the burden of establishing that he injured his cervical spine on 21 November falls on the reliability of his recall of the events when he made his statement on 5 October 2022 – as does the burden of proving that his employment was the main contributing factor to that injury.
Mr Stone has given a clear and informative statement. Many of the entries throughout the medical evidence have mentioned his keenness to get back to work in a job he has been doing since 1990. I accept that he has done his best to assist this enquiry in making his statement, but the lack of support for the most significant assertion raises the prospect that he may have innocently reconstructed his recall of the events he described. His statement was made almost nine years after the event of 21 November 2013, and the objective evidence shows that the condition of his cervical spine did not become a significant issue for him until, as he said, he was referred to Dr Spittaler, whom he saw on 7 May 2020.
As to the pre-May 2020 condition of his neck, Mr Stone’s explanation for his failure to mention his neck until 19 December 2013 was not detailed. There was no description of any facts such as the frequency or the relative intensity of the pain he had during those weeks. He simply stated that the pain of his left shoulder injury was “paramount,” but that he had been suffering neck pain since the subject injury.
Of itself, that assertion was conclusory and of little probative value therefore. There was no supporting evidence that Mr Stone had been suffering neck pain between 21 November and 19 December 2013 and therefore it remains of little weight. Mr Stone’s recollection may have been compromised by the subsequent awareness of the seriousness of his present cervical condition which, as indicated, did not become apparent until April/ May 2020.
It follows therefore that I am unpersuaded that Mr Stone aggravated, exacerbated, accelerated or deteriorated his pre-existing neck condition in the subject accident on 21 November 2013. It follows that he has also failed to establish that his employment was the main contributing factor to his cervical spine injury.
Accordingly there is an award for the respondent.

[2023] NSWPIC 257

2 June 2023