Trajkovska v Lowes Manhattan Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Trajkovska v Lowes Manhattan Pty Limited [2021] NSWPIC 364
APPLICANT:	Marija Trajkovska
RESPONDENT:	Lowes Manhattan Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	22 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act); accepted injuries to bilateral wrists and lumbar spine in fall whilst carrying a ladder; whether injury sustained to cervical spine and bilateral elbows (cubital tunnel) in same incident; delayed reporting and diagnosis of symptoms; minimal evidence of treatment of cervical symptoms; conflicting opinions from medicolegal experts; evidence of psychological overlay; Held -applicant sustained injury pursuant to sections 4 and 9A of the 1987 Act to cervical spine and elbows; matter remitted to President for referral to Medical Assessor to assess all claimed body parts.
DETERMINATIONS MADE:	1. The applicant sustained an injury to her cervical spine on 30 January 2019 pursuant to ss 4 and 9A of the Workers Compensation Act 1987. 2. The applicant sustained an injury to her bilateral elbows (cubital tunnel syndrome) on 30 January 2019 pursuant to ss 4 and 9A of the Workers Compensation Act 1987.
ORDERS MADE:	3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 30 January 2019 Body parts: Right upper extremity (wrists, elbows) Left upper extremity (wrists, elbows) Cervical spine Lumbar spine Method: Whole Person Impairment. 4. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments and the Reply and all attachments.

STATEMENT OF REASONS

BACKGROUND

Ms Marija Trajkovska (the applicant) was employed by Lowes Manhattan Pty Limited (the respondent). On 30 January 2019, the applicant was returning a ladder to storage when she tripped on a broken tile, causing her to fall.
It has been accepted by the respondent’s insurer that the applicant sustained an injury to her lumbar spine and both wrists in the injurious event. The applicant alleges that she also sustained injury to her cervical spine and bilateral elbows (cubital tunnel).
Liability for the alleged injuries to the applicant’s cervical spine and bilateral elbows was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 27 April 2020.
The applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act1987 (the 1987 Act) on 19 May 2021. The applicant relied upon an assessment of 34% whole person impairment (WPI) made by orthopaedic surgeon Dr Medhat Guirgis.
The claim for lump sum compensation was disputed in a further notice issued pursuant to s 78 of the 1998 Act on 14 July 2021.
The present proceedings were commenced by an Application to Resolve A Dispute (ARD) lodged in the Commission on 23 July 2021. The applicant seeks lump sum compensation in accordance with the assessment of Dr Guirgis.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to her cervical spine on 30 January 2019;
(b) whether the applicant sustained an injury to her bilateral elbows (cubital tunnel) on 30 January 2019, and

(c) the degree of permanent impairment resulting from the injury on 30 January 2019.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 20 September 2021 by teleconference. The applicant was represented by Mr Howard Halligan of counsel, instructed by Mr Angelo Bonura. The respondent was represented by Ms Kavita Balendra of counsel, instructed by Ms Layal El Khatib. A representative from the insurer was also present.
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; and
(b) Reply and attached documents.

Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by her on 15 April 2021.
On 30 January 2019, the applicant was using a ladder to retrieve stock for a customer from a high rack. Once finished, the applicant needed to return the ladder to storage. The applicant was walking and carrying the ladder using both hands when her shoe gripped or caught on broken tiles causing her to lose balance and fall. The applicant landed on top of the ladder and on the tiles, injuring her “hands, wrists, upper limbs and lower back”.

The applicant said she saw her general practitioner, Dr Barbara Cyrta, the same day and a plain x-ray of the applicant’s wrists was performed. An x-ray of the applicant’s back was performed a few days later.

The applicant continued with discomfort in her hands and wrists and was referred for nerve conduction studies. When the nerve conduction findings were received, the applicant was referred to hand surgeon, Dr Mark Nabarro. The applicant first consulted Dr Nabarro on 12 June 2019.

The applicant said she noticed discomfort in her neck not long after the accident. The applicant had suffered no prior pain in her neck and the only trauma she had experienced was the fall on 30 January 2019. Dr Cyrta referred the applicant for an MRI of her cervical spine which was approved by the insurer on 30 April 2019. The MRI was performed on 5 June 2019.

The applicant described the treatment of her symptoms under the care of Dr Nabarro.
The applicant was referred to a psychiatrist, Dr Gordon Hyde to assist with her anxiety. The applicant was diagnosed with an adjustment disorder with anxious and depressed mood.

The applicant consulted Dr Ali Ghahreman in relation to her cervical spine. He did not recommend surgery and the applicant only saw him on one occasion.

On 21 August 2019, Dr Nabarro advised the applicant that she would require release of the ulnar nerve at both the elbows and wrists. The applicant underwent x-rays and ultrasound of the wrists. Surgery was scheduled for 17 January 2020 for a bilateral open carpal tunnel release. Liability for the surgery was initially declined but later approved and the applicant underwent right open carpal tunnel release surgery on 21 February 2020.
The applicant underwent surgery to her left wrist on 24 July 2020.
Liability for the bilateral cubital tunnel release recommended by Dr Nabarro was declined.

The applicant said she had decided at this stage not to pursue the surgery to her elbows having undergone two procedures already with only moderate success.

Employee Incident/Injury Report

An Employee Incident/Injury Report form completed by the applicant on 31 January 2021 described the injury on 30 January 2019 in a manner consistent with the applicant’s written statement:
“I was walking & carrying the ladder using both hands & my shoe gripped or caught on the tiles & caused me to lose my balance & fall, I landed on top of the ladder & on the tiles hard, both my hands hit the ladder causing me to have pain in both arms from the wrist down & I also experienced pain in my lower back.”

In response to a question as to which body parts were injured, the applicant responded “no” in relation to the neck and “yes” in relation to the trunk and upper limbs.

Treating medical evidence

The applicant consulted her general practitioner, Dr Barbara Cyrta, on 30 January 2019, who recorded:
“Fell at work today onto her outstretched hands whilst carrying a ladder , tripped
Some LBP
R wrist ulnar side pain and tenderness
MVT preserved
SLR positive L side
Lowr limbs neurological examination unremarkable
Thoraco-lumbar spine pain on flexion forward and flxion to sides
Hips examination NAO
Actions:
Diagnostic Imaging requested: XR R wrist Post injury To exclude fracture”
Symptoms of sore wrist, numbness and pins and needles in both hands as well as lower back pain were reported again to Dr Cyrta on 4 February 2019. The applicant was referred for an x-ray of her lumbar spine.
On 8 February 2019, Dr Cyrta recorded:
“Here for results Lumbar spine XR NAO
Copies given
Most likely musculo-ligamentous strain
Hands numbness persists
Neck MVT preserved with some pain L side neck on rotation to L shoulder”
On 15 February 2019, physiotherapist/exercise physiologist, Mr Lachlan Hodge, reported to Dr Cyrta:
“Thank you for referring Mrs Maria Trajkovski for her wrist and back injuries from a fall while at work. Maria presented with quite high levels of pain in both of her wrists as well as her lumbar spine. She has been very limited in her activity level since the fall due to the amount of pain and sensitivity she is feeling.
Maria first presented on Thursday 14 February 2019 and the key findings from her examination were:
·        Lumbar ROM: Extension = 25% with significant pain; Flexion equals 50% with significant pain
·        Bilateral Passive Hip Flexion = 70° with pain in her lumbar spine
·        Left Wrist flexion and extension = 40° with pain and some increasing numbness to all fingers
·        Right Wrist flexion and extension = 20° with pain and some increasing numbness to all fingers
·        Grip Strength: left = 10 kg with pain; right equals 1 kg with pain”
On 23 April 2019, Mr Hodge reported:
“Maria has progressed fairly well with her physiotherapy treatment. She is reporting ongoing pins and needles and numbness in both of her hands and fingers that increases with activity involving her arm such as washing dishes and cooking.
Her cervical and thoracic spine range of movement are still very restricted after eight weeks of manual therapy and exercise targeting these areas. This may be magnifying her neurological symptoms. Further investigations from the neurologist will be helpful in guiding Maria’s management.”
On 24 April 2019, Dr Cyrta recorded:
“There are changes of moderately severe CTS of both sides R>L
Some L side neck pain worse on rotation & flexion to R”
The applicant was referred for an MRI of the cervical spine in relation to left sided neck pain radiating to both arms. It was noted that the applicant was booked to see Dr Nabarro on 12 June 2019.
On 2 and 30 May 2019, Dr Cyrta noted that the applicant was still waiting for the MRI of the cervical spine to exclude radiculopathy.
Hand and microsurgeon, Dr Mark Nabarro, prepared a report for Dr Cyrta on 12 June 2019. Dr Nabarro took a history of injuries to both hands, wrists and back when the applicant fell at work on 30 January 2019. The applicant had numbness and tingling in both hands, worse on the right, and exacerbated by most activities. The applicant complained of subjective weakness and problems with fine motor tasks. The applicant had stiffness but no pain in her neck and denied radicular symptoms.
On examination, Dr Nabarro noted:
“At both elbows there is tenderness over the cubital tunnel. The ulnar nerve is stable with elbow flexion. Tinel's sign over the cubital tunnel and elbow flexion test elicited paraesthesiae in all the digits.”
Dr Nabarro formed the impression that the applicant had signs and symptoms and electrophysiological evidence of carpal tunnel syndrome in both hands. Further,
“She has also developed signs and symptoms of bilateral cubital tunnel syndrome.”
The report of an MRI of the cervical spine dated 5 June 2019 noted the applicant had been referred for left neck pain radiating to both arms and possible radiculopathy. The report concluded that the MRI showed C5/6 central herniation contacting the cord but no signal change or contour deformity. There was also a C4/5 disc osteophyte without cord contact.
In report dated 26 June 2019, Dr Nabarro reported:
“At both elbows there is mild tenderness over the cubital tunnel. There is mild subluxation of the ulnar nerve with elbow flexion. Tinel's sign over the cubital tunnel and elbow flexion test are positive.
The MRI scan of her cervical spine showed central disc osteophytes at the C4/5 and C5/6 levels. These do not encroach on the spinal cord.”

Dr Nabarro said he had injected the right carpal tunnel with Celestone and Lignocaine.

Mr Hodge prepared a report for the insurer on 8 July 2019. Mr Hodge made a diagnosis of bilateral wrist sprain with bilateral carpal tunnel syndrome; C5/6 central disc osteophyte with spinal cord contact possibly contributing to wrist pain diagnosed by MRI on 5 June 2019; and left-sided mechanical lower back pain. Mr Hodge noted that the applicant was seeing Dr Ghahreman for an opinion regarding the management of her C5/6 disc pathology.
On 24 July 2019, Dr Nabarro reported that the ulnar nerve at both elbows was stable and non-tender. Tinel's sign over the cubital tunnel and elbow flexion test remained positive bilaterally. A steroid injection of the left carpal tunnel was performed.
On 15 August 2019, consultant psychiatrist, Dr Gordon Hyde reported to the applicant’s general practitioner that the applicant met the criteria for the DSM-V diagnosis of adjustment disorder with anxious and depressed mood. Dr Hyde recommended a referral to a psychologist.
Ongoing symptoms were reported to Dr Nabarro on 21 August 2019. On that occasion, Dr Nabarro recommended:
“ln view of the ongoing symptoms l have recommended x-rays & ultrasounds of both wrists. She will require release of the ulnar nerve at both elbows and wrists which will be performed as staged procedures. I will see her with the x-ray & ultrasound findings and will schedule her for surgery.”
Dr Nabarro prepared a report for the applicant’s new general practitioner, Dr Blagoj Kuzmanovski, on 13 November 2019. Dr Nabarro gave a diagnosis of bilateral carpal tunnel and cubital tunnel syndromes. It was noted that bilateral open carpal and cubital tunnel releases had been recommended as staged procedures. The applicant wished to have the carpal tunnel surgery first before undergoing any surgery on her elbows.
An operation report indicated that the applicant underwent right open carpal tunnel release surgery on 21 February 2020 at St George Private Hospital. A left open carpal tunnel release was performed on 24 July 2020.
Dr Nabarro prepared a report for the applicant’s solicitors on 25 September 2020 responding to a report prepared by the independent medical examiner qualified by the respondent, Dr Raymond Wallace, dated 20 December 2019. Dr Nabarro said:

“When I first reviewed Ms Trajkovska on 12 June 2019, she reported sustaining injuries to both hands, wrists and back when she fell on 30 January 2019. She was carrying a ladder and she tripped, falling and striking both hands on the ladder. She reported ‘electric shocks’ sensation in both hands as she fell and then, and had numbness and tingling in both hands, worse on the right. All the fingers were affected not just the median nerve distribution. My clinical examination at this time showed tenderness over the cubital tunnel bilaterally. The ulnar nerve was stable with elbow flexion. Tinel's sign over the cubital tunnel and elbow flexion test elicited paraesthesiae in all the digits which for me are positive tests for ulnar nerve compression in the cubital tunnel. The nerve conduction studies confirmed bilateral moderate to severe carpal tunnel syndrome, worse on the right. It is not uncommon however, for nerve conduction studies to give false negative results for cubital tunnel syndrome. I made a diagnosis of bilateral carpal and cubital tunnel syndromes which had developed following her injury at work. In Dr Wallace's report under the causation heading on page 5, he opines that there is no objective ‘medical evidence’ that she sustained injuries to her cervical spine or bilateral elbows. The clinical findings at the time of my first examination was consistent with compression of the ulnar nerve at the level of both cubital tunnels.”

Dr Nabarro noted that the applicant’s sensory symptoms in both hands had resolved following her carpal tunnel releases. As a result, it was unlikely she would require bilateral cubital tunnel releases at this stage. It was noted that the applicant may develop recurrent cubital tunnel symptoms in the future.

Dr Medhat Guirgis

The applicant relies on a medicolegal report prepared by consultant orthopaedic surgeon, Dr Medhat Guirgis, dated 15 May 2021.
Dr Guirgis took a history of the injurious event on 30 January 2019 as involving the applicant falling down, landing on top of the ladder and on tiles, injuring her neck, elbows, wrists and lower back.
The applicant complained of a number of symptoms including ongoing neck pain and tightness with radiation to the top of the right and left shoulder blades and frequent radiation at the back of the neck to cause pain and tenderness in the suboccipital area. The applicant felt pain along the inner border of the upper end of her forearm with attacks of pins and needles and tingling, exacerbated by repetitive or prolonged elbow flexion.
Dr Guirgis’ examination of the cervical spine showed some restriction of movement with muscle guarding in the paraspinal and cervical scapular muscles. Tenderness was elicited over the C3 to C7 spines and relevant spaces.
At the elbows, there was tenderness over the soft tissue attachments to the medial epicondyle of the humerus and over the medial intramuscular septum in the lower arm. The ulnar nerve was clinically irritable in its course in the ulnar cubital tunnel. Provocative tests resulted in a positive Tinel’s sign, exacerbation of symptoms on direct compression of the nerve and reproduction of symptoms in a positive elbow flexion test.
Dr Guirgis gave the opinion that the applicant had post-traumatic ulnar neuropathy in the ulnar cubital tunnel causing sensory blunting and complaints with no motor involvement.
The applicant also had post-traumatic mechanical derangement of the cervical spine area. This was caused by musculoligamentous sprain/strain with C4/5 and C5/6 intervertebral disc involvement. This triggered an aggravated the effects of underlying asymptomatic age-appropriate degenerative changes. Dr Guirgis referred to the MRI of the cervical spine.
Dr Guirgis gave the opinion that employment was a substantial contributing factor to the injuries.
Dr Guirgis noted the denial of liability in relation to the elbows and cervical spine. Dr Guirgis expressed agreement with the report of Dr Nabarro dated 25 September 2020 and said Dr Nabarro’s findings in November 2019 were consistent with his own findings on examination. The applicant continued to complain of tingling and numbness in her fingers since the accident. Examination by the senior hand surgeon in addition to confirmation by the electro conduction studies suggested that it was unreasonable to opine that the accident was not responsible for the ulnar nerve implication in the ulnar nerve cubital tunnel.
With regard to the cervical spine, Dr Guirgis noted the delayed investigation of neck pain and stated:
“If we analyse the traumatic event that happened on 30-1-2019, on the balance of probabilities one would expect that the awkwardly positioned cervical and lumbar spines as she landed on top of the ladder, in association with sudden unguarded contractions of the long and short spinal muscles, and the resultant abnormal stretching of the spinal ligaments had resulted in the diagnosed post-traumatic mechanical derangement stated under my opinion above. Again, I find it unreasonable and unnecessary to deny liability for the cervical spine injury.”

Dr Raymond Wallace

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Raymond Wallace dated 20 December 2019, 5 May 2021 and 9 June 2021.
In his first report, Dr Wallace took a history of the fall on 30 January 2019 in which the applicant noted pain at her bilateral wrists and lumbar spine and complained of numbness of the fingers of the hands bilaterally. Dr Wallace noted that the applicant was referred to Dr Nabarro who diagnosed bilateral cubital tunnel syndrome at the elbows as well as bilateral carpal tunnel syndrome at the wrists. It was noted that Dr Nabarro recommended operative intervention in the form of bilateral cubital tunnel release and bilateral carpal tunnel release.

The applicant noted no previous history of injury at her cervical spine or upper limbs.

Dr Wallace noted the MRI investigation of the cervical spine dated 5 June 2019.

Dr Wallace diagnosed bilateral wrist and lumbar spinal conditions sustained on 30 January 2019 and stated:
“There is no objective medical evidence that she suffered any injury at her cervical spine or bilateral elbows at the time of the indexed incident.”
Dr Wallace concluded that the applicant did not require operative intervention in the form of bilateral cubital tunnel releases.
In the supplementary report dated 5 May 2021, it was noted that Dr Wallace found tenderness in the neck at the C5 spinous process at an examination conducted on 6 April 2021. Dr Wallace was asked whether given these symptoms, he considered they developed as a direct consequence of the lower back or bilateral wrist injury.
Dr Wallace responded:
“Ms Trajkovska has not suffered any injury at her cervical spine as a result of her work incident of 30 January 2019, over two years ago. At the time of my recent review on 6 April 2021, one month ago, Ms Trajkovska complained of no pain at her cervical spine. She had no evidence of disability at her cervical spine on clinical examination on 6 April 2021.
The clinical sign of tenderness in the region of the C5 spinous process is not indicative of any significant pathology at her cervical spine.
Her employment with Lowes Manhattan Pty Ltd is not a substantial contributing factor to any current cervical spinal condition.
There is no mechanism of injury whereby Ms Trajkovska would have suffered a cervical spinal injury as a direct consequence of her bilateral wrists or lower back conditions.”
It was also noted that tenderness in the elbow at the olecranon processes bilaterally was found on examination on 6 April 2021. Dr Wallace was asked whether he considered that the symptoms developed as a direct consequence of the lower back and/or bilateral wrist injury. Dr Wallace responded:
“At the time of review with Ms Trajkovska on 6 April 2021, she was noted to have tenderness at the olecranon processes bilaterally. The tenderness in this region is
not consistent with the diagnosis of bilateral cubital tunnel syndrome whereby Ms Trajkovska would have tenderness in the region of the medial epicondyle of her elbows.
Ms Trajkovska had no evidence of bilateral cubital tunnel syndrome on clinical examination at the time of review on 6 April 2021.
Ms Trajkovska has not developed any symptoms at her elbows as a direct consequence of her lumbar spinal or bilateral wrist injuries.
Her employment with Lowes Manhattan Pty Ltd is not a substantial contributing factor to any current bilateral elbow conditions.”
In the report dated 9 June 2021, Dr Wallace was asked whether there were any signs or indications of exaggeration, inconsistency or unreliability at his examination of the applicant on 6 April 2021. Dr Wallace responded:
“Ms Trajkovska exhibited significant pain behaviour at the time of review on 6 April 2021. She was in no obvious discomfort throughout the consultation but then complained of pain frequently during the examination.”
Dr Wallace was asked to report his findings on examination on 6 April 2021. Dr Wallace relevantly responded:
“She was in no obvious discomfort throughout the consultation but complained of pain during the examination.
Examination of her cervical spine showed no swelling or deformity. She has a range of movement of flexion 70°, extension 20°, left rotation 70° and right rotation 70°, left lateral tilt 20° and right lateral tilt 20°. There is tenderness at the C5 spinous process. Neurological examination of her upper limbs shows equal and symmetrical reflex. Her power and light touch sensation are intact.
…
Examination of the bilateral elbows showed an active range of movement of 0- 160° flexion with pronation 80° and supination 80°. There is tenderness at the olecranon processes bilaterally.”
Dr Wallace maintained his view that there was no work-related injury at the cervical spine or bilateral elbows:
“She had no evidence of any pathology at her cervical spine or bilateral elbows at the time of review on 6 April 2021. At that time, she was complaining of no symptoms at her cervical spine or bilateral elbows and had no evidence of loss of function at her cervical spine or bilateral elbows on clinical examination.”
Dr Wallace declined to make any comment on the opinion of Dr Guirgis.

Dr Mark Jones

Attached to the Reply is an Injury Management Consultation report prepared by Dr Mark Jones for the insurer, dated 9 December 2020.
Dr Jones recorded a history of the applicant initially experiencing pain in both wrists, hands and lower back associated with swelling of the hands and fingers following the fall on 30 January 2019. Dr Jones noted that there was occasional radiation of pain to the ulnar elbow along the forearm. The applicant also reported occasional neck pain but this had not been treated.

Dr Jones’ examination indicated that cervical spine range of movement was full and pain free. Tinel’s sign was negative.

Dr Jones diagnosed bilateral wrist and back injuries. The applicant demonstrated chronic pain behaviour and Dr Jones suggested she be referred to a pain specialist. A psychiatric Independent Medical Examination was also suggested as appropriate.

Dr Jones considered that the applicant did not require any further treatment or medical review for any work-related condition at her cervical spine, bilateral elbows, bilateral wrists or lumbar spine.

Dr Tanveer Ahmed

The respondent has also relied on medicolegal reports prepared by psychiatrist, Dr Tanveer Ahmed, dated 17 April 2021 and 13 May 2021.
Dr Ahmed diagnosed the applicant with a chronic adjustment disorder with depressed mood and anxiety. He considered that the applicant’s pain experience was interacting with her psychological symptoms and worsening her pain experience.

Applicant’s submissions

Mr Halligan noted that the injurious event occurred on 30 January 2019. There was no inordinate delay in the presentation of the applicant’s symptoms in the cervical spine and elbows.
On the day of the incident, the applicant visited her general practitioner, Dr Cyrta. Although there was no mention of the elbows or neck on that date, on 8 February 2019 (eight days after the accident) the applicant was recorded to have complained of symptoms in her neck. In the brief period between that report of symptoms and the injurious event there could be no novus actus interveniens. The applicant had no previous symptoms in her neck. Mr Halligan submitted that it would be safe for the Commission to conclude that the applicant’s symptoms were referable to the injurious event.

Mr Halligan noted that an MRI of the cervical spine was ordered due to pain radiating into both arms, suggesting radiculopathy. At a consultation on 22 May 2019 it was noted that the MRI result was still awaited. The applicant was complaining of discomfort in her arms and wrists together with numbness. This complaint was suggestive of radiculopathy arising from the cervical spine. Mr Halligan observed that the costs of the MRI were paid for by the respondent’s insurer. There appeared to be no dispute at that point that the symptoms requiring investigation were referable to the injurious event. The MRI showed pathology at C4/5 and C5/6.

Mr Halligan noted that Dr Nabarro, who was looking after the applicant’s wrists principally, observed tenderness over the cubital tunnel and positive tests at the elbow in his first examination of the applicant. Dr Nabarro diagnosed cubital tunnel syndrome and suggested surgery for the elbows. Mr Halligan submitted that the suggestion for surgery was indicative of the significance of the injury at the elbows.

The applicant’s physiotherapist had also referred to cervical symptoms being treated by neurosurgeon, Dr Ghahreman, in his reports. Mr Halligan said he had been instructed that the applicant consulted Dr Ghahreman on only one occasion and the matter proceeded no further.

Dr Guirgis in his examination of the applicant observed a reduction of movement and tenderness over C3 to C7.

Mr Halligan submitted the collection of entries in the medical evidence produced a solid body of evidence to prove a neck and elbow injury for the purposes of ss 4 and 9A of the 1987 Act. The injury on 30 January 2019 was a substantial contributing factor to the injuries at those sites.

Turning to the respondent’s evidence, Mr Halligan noted that Dr Wallace had referred to Dr Nabarro’s consultations but expressed his ultimate opinion without reference to the whole of the history. Dr Wallace said there was no evidence of an injury to the cervical spine despite evidence in the form of an MRI scan disclosing pathology. Although Dr Wallace observed clinical signs of tenderness in his examination at the cervical spine, he said that was not indicative of any significant pathology. The pathology was, however, revealed on the MRI scan. The applicant was complaining of neck symptoms as early as 8 February 2019.

Similarly, Dr Wallace said there was no objective evidence of injury to the elbows despite Dr Nabarro’s reports and tenderness on examination at that site.

Mr Halligan submitted that there was an abundance of contemporaneous material demonstrating injury to the neck and elbows. Mr Halligan submitted that on the balance of probabilities the applicant’s case had comfortably been made out.

Respondent’s submissions

Ms Balendra submitted that it should be borne in mind that the applicant alleged a frank incident on a particular day. The alleged injuries to the cervical spine and elbows were required to have resulted from that one incident.

Despite this, the applicant had provided a description of the accident and the body parts which were injured in her written statement which did not include the cervical spine or the elbows. The applicant described subsequent discomfort in her neck but did not explain how the discomfort in her neck was linked to the injurious event.

The only complaint in relation to the neck was recorded in the clinical note of Dr Cyrta on 8 February 2019. That one complaint was not echoed anywhere else in the various treating medical reports. The applicant saw her physiotherapist on multiple occasions. In many of those reports only the wrist and lumbar spine symptoms were described. The description of pain provided to Dr Jones only included the lower back and wrist. There were no complaints of pain in relation to the neck and elbows. There was very little mention of the neck in the reports of Dr Nabarro. In one of the earlier reports from Dr Nabarro, it was recorded that the applicant denied any pain and mentioned only stiffness in the neck.

The applicant’s complaints in relation to the neck were only investigated in June 2019. Dr Guirgis was not able to explain why the applicant’s description of the injurious event did not include the neck or elbows. Dr Guirgis did not explain the involvement of the neck in the injurious event.

Ms Balendra submitted that Dr Wallace had seen the applicant on several occasions and on each occasion he denied that there was any evidence of injury to the applicant’s neck or elbows as a result of the work incident. In his examination on 6 April 2021 there was no complaint of pain in the cervical spine and no evidence of disability. Dr Wallace did not agree that the frank incident was a substantial contributing factor to any cervical spine condition.

Ms Balendra submitted that the respondent also relied on Dr Wallace’s finding that there was no evidence of a bilateral cubital tunnel syndrome on clinical examination. The applicant’s physiotherapist, Mr Hodge had provided multiple reports with no reference to any issue in relation to the elbows. In his first examination of the applicant, the applicant described only symptoms in relation to the wrists and lumbar spine. There was no mention of the cervical spine or the elbows. The respondent submitted that this would be an accurate description of the symptoms the applicant was experiencing at the time.

In April 2019, Mr Hodge referred to stiffness in the cervical spine as well as the thoracic spine. There was no claim of injury to the thoracic spine. Ms Balendra submitted that this was not evidence of a frank injury to the cervical spine.

Ms Balendra referred to the reports of Dr Ahmed who formed the view that the applicant had chronic pain that was more to do with an underlying psychological vulnerability than the injury itself.

The respondent submitted that any symptoms in the cervical spine and elbows were not referable to the frank incident on 30 January 2019.

Applicant’s submissions in reply

Mr Halligan submitted that the report of Mr Hodge dated 15 February 2019 was prepared in response to a referral for the lumbar and wrist injuries. It was not part of the physiotherapist’s brief to provide an opinion in respect of the neck or elbows.

Mr Halligan submitted that Dr Wallace’s opinion with regard to the neck and elbows was unexplained in light of his findings on examination of tenderness in the neck and elbows.

Mr Halligan submitted that the respondent’s reliance on the suggestion in Dr Ahmed’s report that the symptoms constituted a psychological reaction was insufficient to override the physical signs and symptoms.

Mr Halligan submitted that no alternative explanation had been provided by Dr Wallace to explain the applicant’s symptoms. The applicant’s credit was not in issue in there was no suggestion that the accident was de minimus. To suggest some other cause for the applicant’s complaints was untenable.

Mr Halligan noted that Dr Guirgis had provided an explanation in his reports as to why the cervical spine was related to the injurious event which explained the delayed onset of symptoms.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

No compensation is payable in respect of an injury under s 4(a) of the 1987 Act unless the employment concerned was a substantial contributing factor to the injury.
“9A No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.”
It is the applicant who bears the onus of establishing on the balance of probabilities that she sustained an injury for the purposes of ss 4 and 9A to her cervical spine and elbows. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[1] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[1] [2008] NSWCA 246.
The value of contemporaneous evidence in considering whether an applicant has discharged her onus has been repeatedly endorsed by the courts: Watson v Foxman[2] and Onassis v Vergottis[3]. In the latter case, Lord Pearce commented upon what is often recollected and said by witnesses, many years after an event, as opposed to what is contemporaneously recorded in documents at the time of the event, in the following terms:

"Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

[2] (1995) 49 NSWLR 315.
[3] (1968) 2 Lloyds Report 403.

In Department of Education and Training v Ireland[4] where the President, Keating J found:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
[4] [2008] NSWWCCPD 134.
A challenge for the applicant in discharging her onus in this case is the lack of contemporaneous record of an injury to her elbows or cervical spine in the injurious event on 30 January 2019.
The first account of the fall appears in the clinical record of Dr Cyrta on the day of the event. Dr Cyrta’s clinical note refers to lower back pain, right wrist pain and tenderness, positive straight leg raising test on the left side and thoracolumbar spine pain on flexion. Examination of the hips and lower limbs appeared normal.
Dr Cyrta’s clinical note therefore revealed a relatively thorough examination of a range of body parts including the thoracic spine and hips. The clinical record was silent in relation to the cervical spine or elbows. The only investigation requested was an x-ray of the right wrist.
The next account of the body parts injured in the fall on 30 January 2019 is the report prepared by the applicant on 31 January 2019. In that report the applicant specifically denied any injury to the neck and described injuries to both arms and lower back.
Symptoms of numbness and pins and needles in both hands were reported to Dr Cyrta when the applicant next saw her on 4 February 2019. Dr Cyrta’s clinical note was, however, once again silent in relation to any neck symptoms.
The first reference to neck symptoms appears in the clinical note of 8 February 2019. On that occasion, persisting hand numbness was noted. It was also recorded that the applicant’s neck movement was preserved although there was some pain on the left side of the neck on rotation to the left shoulder.
When the applicant first saw Mr Hodge, her physiotherapist and exercise physiologist, he also recorded a relatively comprehensive list of findings on examination including findings in relation to the hips, lumbar spine, both wrists and grip strength. The report was silent in relation to the cervical spine. As the applicant has observed in her submissions, however, the initial referral to Mr Hodge was only made in relation to the wrist and back injuries.
There is reference to limited cervical and thoracic spine range of movement in a report prepared by Mr Hodge on 23 April 2019. That report suggested that the applicant had received eight weeks of manual therapy and exercise targeting those areas.
Dr Cyrta noted some left sided neck pain again in a clinical record on 24 April 2019. On that occasion the applicant was referred for an MRI of the cervical spine. That MRI was later reported to have revealed pathology at C4/5 and C5/6 including a herniation contacting the cord at the latter site.
The contemporaneous evidence up until this point does not, therefore, indicate an immediate onset of cervical symptoms following the fall on 30 January 2019. The applicant’s own evidence, as set out in her written statement, also suggests that the neck symptoms were noticed at a later stage.
Symptoms were, however, reported relatively contemporaneous to the fall, having been noted in Dr Cyrta’s clinical records only eight days later. There is nothing in the evidence to suggest any previous symptoms at the cervical spine although the MRI report and Dr Guirgis’ medicolegal report suggest the applicant had degenerative pathology at the cervical spine.
The cervical spine appears to have been treated by Mr Hodge from February 2019 onwards although his reports are not clear in articulating reported symptoms at that site. Mr Hodge’s clinical records are also not in evidence.
By 24 April 2019, the symptoms at the cervical spine were considered sufficient to warrant a referral for an MRI by Dr Cyrta. The MRI report indicates that the referral was made due to left-sided neck pain and possible radiculopathy.
The possibility of radiculopathy explaining the applicant’s upper limb symptoms appears to have been discarded by Dr Nabarro. When he first saw the applicant, Dr Nabarro reviewed the MRI of the cervical spine but at no time has he attributed the applicant’s upper limb symptoms to the pathology revealed on the MRI.
Symptoms in the cervical spine do, however, appear to have persisted for some time. Mr Hodge referred to the pathology at the cervical spine in his report dated 8 July 2019. The evidence indicates that the applicant was referred to a neurosurgeon, Dr Ali Ghahreman around this time.
I have not been referred to any clinical records or reports from Dr Ghahreman which would shed light on his opinion of the reported symptoms and their cause. It is significant, however, that the applicant reported that she only consulted Dr Ghahreman on a single occasion and no surgery was proposed.
There is no other evidence of treatment or investigation of symptoms at the cervical spine in the treating medical evidence before me.
Dr Wallace saw the applicant on 20 December 2019. The history of the injurious event reported by Dr Wallace did not indicate an injury to the cervical spine. No symptoms or findings at the cervical spine were recorded. Dr Wallace was aware of the MRI investigation of the cervical spine but concluded that there was no objective medical evidence of any injury at cervical spine.
Dr Nabarro prepared a report for the applicant’s solicitors on 25 September 2020 in which he noted Dr Wallace’s opinion that there was no objective evidence of injuries to the cervical spinal bilateral elbows. Although Dr Nabarro gave the opinion that his clinical findings at the time of his first examination were consistent with compression of the ulnar nerve at the level of both cubital tunnels, he made no comment in relation to the cervical spine. Dr Nabarro had, at an earlier examination, recorded that the applicant complained of no pain but only stiffness at the cervical spine.
Dr Jones saw the applicant in December 2020. Dr Jones noted the occasional radiation of pain to the ulnar elbow. The applicant also reported “occasional” neck pain which had not been treated. Dr Jones’ clinical examination, however, indicated that cervical spine range of movement was full and pain free.
The symptoms described by Dr Guirgis, stand in some contrast to the cervical symptoms reported elsewhere in the medical evidence. Dr Guirgis described ongoing neck pain and tightness with radiation to the right and left shoulder blades and frequent radiation at the back of the neck causing pain and tenderness in the suboccipital area. This account suggests a more significant and constant experience of cervical symptoms than is suggested by the treating medical evidence and the respondent’s medicolegal evidence. There is a question therefore as to whether the factual foundation upon which Dr Guirgis based his opinion is consistent with the other available evidence.
Dr Guirgis has also taken a history of the applicant sustaining an injury to her neck in the injurious event on 30 January 2019 without properly grappling with the delayed experience and reporting of symptoms apparent from the applicant’s own evidence in these proceedings and demonstrated in the treating medical evidence.
Dr Guirgis was, however, apparently aware of the delayed reporting of symptoms and took a history of the mechanism of injury that was consistent with the other evidence. He considered the radiological evidence of pathology at the cervical spine. Dr Guirgis performed an examination of the cervical spine which showed restriction of movement and tenderness over C3 to C7.
Dr Guirgis has provided an explanation for how the mechanism of injury could account for the cervical symptoms. Dr Guirgis explained that the awkwardly positioned cervical and lumbar spines as the applicant landed on top of the ladder, in association with sudden unguarded contractions of the spinal muscles and stretching of the spinal ligaments, would have caused a musculoligamentous sprain or strain and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes in the cervical spine.
Dr Guirgis’ examination of the applicant’s cervical spine was to some degree consistent with Dr Wallace’s own examination on 6 April 2021. That examination revealed some restriction of movement and tenderness at the C5 spinous process.

Dr Wallace did not accept that the applicant had sustained an injury to the cervical spine in the injurious event. Dr Wallace said the applicant complained of no pain at her cervical spine and had no evidence of disability at her cervical spine. Dr Wallace did not consider that the clinical sign of tenderness at C5 was indicative of any significant pathology at the cervical spine. Although Dr Wallace was aware of the MRI of the cervical spine showing pathology at C5, as it had been referred to in his previous reports, he maintained the view that there was no evidence of a work-related injury at the cervical spine. That opinion appears to be based on his view that there was no contemporaneous medical evidence of an injury to that body part at the time of the incident on 30 January 2019.
Dr Wallace’s opinion that there was no mechanism of injury whereby the applicant would have suffered a cervical spine injury as a consequence of her wrist and back conditions appears directed to the question of whether there is a consequential cervical spine condition rather than an “injury” as is claimed in these proceedings.
Dr Wallace’s opinion remains opaque as to what objective medical evidence he required of a work injury. Dr Wallace did not engage with the reported symptoms of left-sided neck pain eight days after the injurious event; the absence of previous complaints of neck symptoms; the treatment of neck symptoms by Mr Hodge, the referral to Dr Ghahreman, the clinical findings of restriction of movement and tenderness; or the pathology shown on MRI. These are all circumstances which, in my view, weigh firmly in favour of a finding that the applicant’s cervical spine was injured in the injurious event on 30 January 2019.
Dr Wallace has not offered any comment or reason as to why he disagreed with the opinion of Dr Guirgis and his explanation of the mechanism of injury.
It is, however, the applicant’s onus to establish an injury to the cervical spine on the balance of probabilities. The applicant’s evidence is not without ambiguity. There was a delay of some eight days before the symptoms were experienced or reported. I am not satisfied that a medical opinion has been provided which clearly explains the delayed onset of symptoms although the evidence does indicate that the applicant was experiencing significant symptoms at her upper limbs and lumbar spine which may have been distracting.
The symptoms reported by the applicant to her treating practitioners appear to have been rather more occasional and mild than the symptoms described to Dr Guirgis. At times the applicant has reported no pain and only stiffness at the neck. Other than the physiotherapy reported by Dr Hodge and the single consultation Dr Ghahreman, the applicant does not appear to have undergone any specific treatment for symptoms at the cervical spine. There is no evidence of reported symptoms at the cervical spine or treatment after the applicant’s consultation with Dr Ghahreman in mid-2019 until the time the applicant was examined by Dr Guirgis, other than the mention of occasional neck pain to Dr Jones. The applicant has also been diagnosed with a secondary psychological condition said to be impacting upon her experience of pain.
Weighing the evidence as a whole I do, however, feel a sense of actual persuasion that the injurious event did cause injury to the applicant’s cervical spine in the nature of a musculoligamentous strain and symptomatic aggravation of pre-existing degenerative pathology as suggested by Dr Guirgis.
I am satisfied that an injury to the applicant’s cervical spine was sustained in the course of employment for the purposes of s 4(a) of the 1987 Act. I am further satisfied that the applicant’s employment was a substantial contributing factor to that injury for the purposes of s 9A of the 1987 Act.
Whether that injury has resulted in any permanent impairment and, if so, the extent of any permanent impairment will be a matter for a Medical Assessor to assess.
The applicant’s evidence as to the alleged injury to her elbows is rather more persuasive. Although the most contemporaneous accounts of the applicant’s injury and symptoms did not specifically identify an injury at the “elbows”, the applicant did consistently complain of upper limb symptoms including pins and needles, numbness and weakness of grip from the outset. It was not until the applicant was seen by a hand specialist, Dr Nabarro, that these symptoms were diagnosed.
Dr Nabarro’s contemporaneous reports and the report he prepared for the applicant’s solicitors explain that from the time of his first examination of the applicant she experienced symptoms and showed clinical signs consistent with bilateral cubital tunnel syndrome. The mechanism of injury involved a sensation of electric shocks in both hands as the applicant fell. The applicant showed tenderness over the cubital tunnel bilaterally. Tinel’s sign over the cubital tunnel and elbow flexion test elicited paraesthesia in all of the digits. Dr Nabarro explained that these were positive tests for ulnar nerve compression in the cubital tunnel.
Although the nerve conduction studies did not indicate cubital tunnel syndrome, Dr Nabarro said it was not uncommon for such studies to give false negative results for cubital tunnel syndrome. Dr Nabarro maintained his diagnosis of cubital tunnel syndromes over the course of his treatment of the applicant and had in fact recommended surgery at the elbows.
Dr Guirgis has performed a clinical examination and provided an opinion that is consistent with the evidence of Dr Nabarro.
Weighing against the evidence from Dr Nabarro and Dr Guirgis is the opinion from Dr Wallace. Dr Wallace appears to have been aware of Dr Nabarro’s involvement in the applicant’s treatment, his diagnosis of bilateral cubital tunnel syndrome, and his recommendation for operative intervention in the form of bilateral cubital tunnel releases. Notwithstanding this and the reported symptoms described in the treating medical evidence from the time of the injurious event, Dr Wallace formed the view that there was a lack of objective medical evidence of an injury at the elbows.
Dr Wallace has said that the applicant had no evidence of bilateral cubital tunnel syndrome on clinical examination at the time of his review on 6 April 2021. He has not provided an opinion, however, as to whether an injury of that nature may have been sustained but resolved, perhaps consistently with the suggestion of Dr Nabarro in his report of 25 September 2020. Dr Wallace also offered an opinion that there was no consequential bilateral cubital tunnel syndrome although a consequential condition is not claimed in these proceedings.
The lack of detail and reasoning in Dr Wallace’s report is insufficient to cause me to doubt the correctness of the consistent opinions offered by Dr Nabarro and Dr Guirgis.
I am satisfied that the applicant sustained an injury to her bilateral elbows in the injurious event on 30 January 2019 in the nature of a bilateral cubital tunnel syndrome. I am satisfied that the injury was sustained in the course of employment for the purposes of s 4 of the 1987 Act and that employment with the respondent was a substantial contributing factor to the injury for the purposes of s 9A of the 1987 Act. The extent of any permanent impairment resulting from that injury will also be a matter for assessment by a Medical Assessor.
Having regard to the findings above, it is appropriate that there be an order remitting the matter to the President for referral to a Medical Assessor for an assessment of the degree of whole person impairment resulting from the injury on 30 January 2019. The body parts to be referred will include both upper extremities (wrists and elbows), the cervical spine and the lumbar spine. All of the materials attached to the ARD and Reply will be forwarded with the referral.

[2021] NSWPIC 364

22 September 2021