Williamson v Coles Group Limited - [2021] NSWPIC 64

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Williamson v Coles Group Limited [2021] NSWPIC 64
APPLICANT:	Wendy Williamson
RESPONDENT:	Coles Group Limited
MEMBER:	Ms Carolyn Rimmer
DATE OF DECISION:	7 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker injured her right wrist, right hip and lumbar spine when she fell at work on 22 May 2014 and had suffered consequential condition to the left wrist and later to the cervical spine in a fall on 13 August 2018; dispute as to whether surgery, namely a left‑sided C6/C7 foraminotomy performed by Dr Shivalingam was reasonably necessary as a result of the fall on 8 August 2018; Rose v Health Commission, Diab v NRMA Ltd, Migge v Wormald Bros Industries, Cluff v Dorahy Bros (Wholesale) Pty Ltd, Taxis Combined Services (Victoria) Pty Ltd v Schokman considered and applied; Held- that the surgery carried out with Dr Shivalingam was reasonably necessary as the result of the fall on 13 August 2018.
DETERMINATIONS MADE:	1. Respondent to pay the applicant’s section 60 expenses in respect of treatment proposed by Dr Brindha Shivalingam, namely, a left‑sided C6/C7 foraminotomy and associated expenses as a result of the injury on 22 May 2014 on production of accounts and/or receipts.

STATEMENT OF REASONS

BACKGROUND

The applicant, Wendy Williamson (Mrs Williamson), was employed by the respondent, Coles Group Limited (the respondent) as a sales assistant. The respondent was self‑insured at all relevant times.
In the course of her employment on 22 May 2014 Mrs Williamson caught her foot in plastic wrapping in the cool room of the store where she was working and fell sustaining an injury to her right wrist, right hip, and lumbar spine. Mrs Williamson later suffered a consequential condition in the left wrist.
On 13 August 2018 after taking some Endone for pain in her wrist, Mrs Williamson fell and sustained an injury to her cervical spine, lumbar spine and coccyx.
Mrs Williamson made a claim for medical treatment in relation to a left‑sided C6/C7 foraminotomy and associated expenses performed by Dr Brindha Shivalingam on 1 May 2019.
The respondent disputed liability in respect of the claim for surgery to the cervical spine in a section 78 notice dated 31 August 2020 and a review notice dated 9 December 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issue remained in dispute:
(a) Whether the surgery performed by Dr Shivalingam was reasonably necessary as a result of the fall on 8 August 2018.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration by telephone on 17 March 2020. Mrs Williamson was represented by Mr Dewashish Adhikary who was instructed by Mr Timothy Gauci of Carroll & O’Dea Lawyers. The respondent was represented by Mr Simon McMahon, who was instructed by Ms Miriam Browne of Turks Legal. Ms Monica Nguyen from the respondent company also attended the conciliation conference and arbitration.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertions 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 taken into account in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    All documents attached to the Application to Admit Late Documents dated 12 March 2021 filed by the applicant;
(c)    Reply and attached documents;
(d)    All documents attached to the Application to Admit Late Documents dated 10 March 2021 filed by the respondent.
The respondent made an application to cross‑examine Mrs Williamson in relation to her complaints concerning her cervical spine following the fall on 13 August 2018. Mr Adhikary opposed the application to cross‑examine the applicant. I noted that Mr Adhikary was only given notice of the application to cross‑examine some 30 minutes before the conciliation conference and arbitration commenced. I dealt with the application on an ex tempore basis and refused leave to cross‑examine the applicant. I was not persuaded that the questions that the respondent proposed to put to the applicant concerning her symptoms following the fall on 13 August 2018 and her report of any symptoms to medical practitioners after 13 August 2018 were necessary to enable me to make a decision in this matter. I note that there were a number of statements given by Mrs Williamson and a further statement provided by her husband, Mr Jay Williamson, as well as extensive clinical notes provided by the treating doctor and physiotherapist.

Submissions

The submissions of the parties were recorded and I do not propose to repeat each of the arguments of counsel in these reasons. However, the respondent’s submissions really came down to the argument that the surgery to the cervical spine was not reasonably necessary because any pathology caused by the fall on 8 August 2018 did not result in the need for surgery at C6/7 of the cervical spine.
The applicant submitted that the weight of the medical evidence supported a finding that the surgery performed by Dr Shivalingam on 1 May 2019 was reasonably necessary as a result of the injury sustained to Mrs Williamson’s cervical spine in the fall on 13 August 2018.

FINDINGS AND REASONS

Evidence of Mrs Williamson

In a statement dated 6 March 2017 Mrs Williamson stated that she had fallen in the cool room at work on 22 May 2014 and sustained injury to her right wrist, right hip, and lumbar spine.
In a statement dated 4 April 2018 Mrs Williamson stated that she had undergone hip surgery in August 2017 and described problems in her right hip and right wrist, and pain that had developed in her left wrist. She said that she had become heavily reliant on her left arm and wrist.
In a statement dated 4 September 2018 Mrs Williamson stated that she had developed problems with her left wrist, in particular, after the surgery to her right wrist.
In a statement dated 27 March 2019, Mrs Williamson described a fall that she had on 13 August 2018. She stated that at about 1:00am in the morning she was sitting on the lounge having taken some Endone for pain in her hands and began to feel funny. She stated that she got up to wake her husband for help and then recalled being “woken up” as her head hit the tiles. Mrs Williamson assumed that she had fallen over.
Mrs Williamson wrote:
“7.     I came to, in a lot of pain and unable to call out or really move. I crawled over to the bedroom door, I opened it after some effort, got the attention of my husband and then began to stand up. He told me not to but I continued to try anyway, fell over again and my husband then came over to me.
8.     I saw my GP the next day who prepared a WorkCover certificate which recorded the fall and noted injury to my neck, sacrum and left elbow. I also went to the hospital.
9.     It was recommended that I have physiotherapy. I had an x‑ray taken of my head and neck although this may have been because I had crackling sensation in my ear and that it was perhaps a suspicion that I had fractured part of my skull in my ear.
10.    I did undergo physiotherapy for the neck.”
In a statement dated 27 February 2020, Mrs Williamson said that she had taken two Endone tablets on the night when she fell in August 2018. She stated that she could not recall falling that night, although what she recalled was “coming awake” as her head hit the tiles. She wrote:
“21.   In all of my years since my fall at Coles I have never described neck pain until after that night. I do not believe that my neck was injured in my original injury at work. I have never said it was.
22.    Immediately following the fall, the focus from all the doctors I spoke to (including at the hospital) was my sacrum, which I had previously fractured in my first fall. I think the doctors were worried I had cracked it again. I do believe I spoke about my neck being painful right away, and that is certainly reflected at least in my physiotherapist’s notes (who started treating my neck after the fall quite quickly).
23.    I do believe that the fall in August 2018 damaged my cervical spine as the symptoms came on shortly after, did not abate, and ultimately resulted in surgery.
24.    There was no other explanation for my cervical spine symptoms that I can think of.”
In a statement dated 9 September 2020, Mrs Williamson said that as previously mentioned she was in extreme pain from her wrists throughout the year of 2018 and was awaiting surgery. She stated that she had taken Endone to cope with the immense amount of pain.
She wrote:
“6.     When I fell, I could recall hitting the left side of my head. I would not walk or talk or tell anyone. I felt extremely scared as I could hardly move or talk.
7.     I remember I sort of scooted on my bottom to the bedroom door to alert my husband. I was crying and I was scared. From that night, I was never completely right.
8.     I went to Mudgee Hospital that day to have my injuries examined. I explained my injury to the hospital staff. They x‑rayed my lumbar spine however no irregularities or injuries were found.
9.     I complained to the hospital staff of soreness in my left elbow and left side of my head and neck.
10.    After the hospital attendance, I still felt extremely sore around my neck area. I felt a weird “crackling” sensation in my left ear when I moved my head. I went to my physio a week later and explained my situation.
11.    I was organised to have investigations done to try and figure out what was happening with my neck. There is an x‑ray of my cervical spine from 23 August 2018 which showed changes but no fractures.
12.    I continued with getting physiotherapy with my neck for several months thereafter; however my neck symptoms never resolved and actually got worse over time.
13.    I had my left wrist surgery in or around September 2018. However during this time, my neck continued to deteriorate. I thought I just needed to heal and the symptoms would resolve themselves overtime.
14.    In early 2019, my neck pain and symptoms intensified a lot. I started to get more intense left arm pain and the only relief I got was if I put my arm above my head, which seemed to release the pain slightly.
15.    The pain intensified so much that I went to my GP for a CT scan, which revealed that I was in immediate need for surgery.
16.    I was eventually referred to Dr Shivalingam and underwent surgery to assist with my symptoms.”
Mrs Williamson stated that the respondent asserted in the review notice that she did not report her cervical spine injuries to Dr Bentivoglio when she saw him in December 2018. She said that she did not disclose these symptoms because previously when she had spoken to doctors appointed by the respondent, she was told not to talk about issues or injuries that they did not have paperwork on.
Mrs Williamson stated she had consistently been reporting her symptoms relating to her neck to her physiotherapist. She said she complained to her physiotherapist throughout 2018 and into 2019 about her neck symptoms, which consistently became worse as time progressed.
Mrs Williamson wrote:
“I guess the pain in my cervical spine became more apparent after I had my wrist surgery as I was not distracted with that pain anymore, and my neck symptoms became more apparent after my other issues had been resolved.”

Evidence of Mr Jay Williamson

In an undated statement, Mr Williamson said that his wife, Wendy Williamson, had a fall at home on 13 August 2018. He recalled being woken by her at 1:00 or 2:00 in the morning. He stated that she did not sound normal and he jumped out of bed. He recalled that she said his name and the word “fall” and several words in between that were unintelligible. He said that she was sitting on the ground at the foot of the bed and appeared to be trying to get up. He stated that she was struggling and it looked like her co‑ordination was very poor. He said that when he went to help her, her body felt “lifeless/weak” and it felt as though she did not have co‑ordination in her limbs. He stated that during this time, Wendy said to him that she had fallen, over and over, and was holding her head and saying that her head, neck and bottom were hurting from falling over.
Mr Williamson said that he helped her back into bed and she was crying and saying that her head was sore. He said she kept saying that she had fallen and when he asked what had happened, she said she had fallen in the living room area and then made her way to the foot of the bed where she had fallen again.
Mr Williamson wrote:
“20.   The next morning I took Wendy to Mudgee Hospital as she was complaining about very bad pain in her neck and bottom. I explained the hospital would want to perform scans and rule out any fractures.
21.    At the hospital Wendy was admitted to a bed and shortly after was checked out. I don’t believe that scans took place at the time.
22.    Wendy was discharged from hospital and told to go and see her local medical practitioner if things worsened.
23.    We went to the GP shortly after as things were worsening.
24.    Dr Moore told Wendy in front of me to go and get x‑rays of her neck.
25.    At that stage, Wendy’s complaints had focussed almost entirely on her neck problems. She was not really complaining much about her bottom anymore.
26.    I believe a couple of days after that I took Wendy to go and get x‑rays …
27.    Since August when the fall happened, I observed Wendy complaining increasingly about her neck pain.
28.    At the time of giving this statement, it has been around nine months since the fall, and I notice that within days, Wendy was lying down in order to relieve the pain in her neck. She said that quite a bit.
29.    Since that time, I have taken Wendy on at least five occasions to the physiotherapist for treatment specifically for her neck.
30.    Wendy has always said to me that her neck became very painful after the fall in August.”
Mr Williamson stated that when it was apparent after about six months that physiotherapy was not improving Wendy’s neck pain, they went back to the GP and got a referral for a specialist. He stated that she recently had neck surgery at the Mater Hospital on 1 May 2019.

Medical reports
Medico‑Legal Reports

In a report dated 29 November 2019, Dr Paul Carney, consultant neurosurgeon, stated that he had reviewed the statements of Wendy Williamson dated 27 March 2019 and Jay Williamson dated 23 May 2019, and the records of Dr Shivalingam and Mudgee Physiotherapy. He noted that on 22 May 2014 Mrs Williamson injured her right wrist, right leg and right elbow and developed a secondary left wrist condition. He noted that on 13 August 2018 after taking Endone tablets, Mrs Williamson started to feel funny and when she stood up suffered an episode of loss of consciousness. He reported that she noted injury to her neck, sacrum and left elbow and attended her GP and also went to hospital. Dr Carney noted that Mr Williamson said that on the following day Mrs Williamson was complaining of bad pain in her neck and bottom and her condition continued to worsen with the neck problem being the maximum problem, and she complained increasingly of neck pain from then on.
Dr Carney was asked whether the decompression surgery performed on 1 May 2019 by Dr Shivalingam was reasonably necessary treatment for Mrs Williamson’s condition. He wrote:
“There is no history suggestive of disc prolapse, cervical spine problem prior to the Endone dosage and the fall on 20 August 2018 (sic). In the fall it is known that she hit her head and she complained of neck pain immediately thereafter, with increasing symptoms. Therefore the decompression surgery performed on 1 May 2019 by Dr Shivalingam was reasonably necessary in the treatment of your client’s condition. I note there is supportive evidence in that Dr Shivalingam found left sided radicular arm pain and that she had an MRI scan which demonstrated a disc bulge at C6/7 on the left hand side. I note that she had a very short‑lived relief from local anaesthetic given into the foramen where the nerve root was compressed, and this was given on 11 April 2019.
I note an MRI cervical spine performed 10 April 2019 demonstrated at C6/7 focal left side postero‑lateral disc protrusion extending into the left lateral recess extending into the left C6/7 neuroforamin compressing the emerging left C7 nerve root.”
In a report dated 26 October 2020, Dr Carney noted that he had been provided with further documents including a supplementary statement of Mrs Williamson dated 9 September 2020, a report of Dr Bentivoglio dated 10 August 2020, and the progress notes of Dr Gary Moore.
Dr Carney recorded that he was asked the following question, which he then answered:
“1. In her statement, our client confirms that her cervical spine symptoms developed over time after the fall on 13 August 2018. In light of this statement and your own review of the medical records provided to you, do you believe that our client’s cervical spine symptoms were caused as a result of the fall of 13 August 2018? Please provide a detailed explanation for your opinion.
I note your client confirmed a continuity of cervical spine symptoms following the fall of 13/08/2018. I have previously explained that a fall with a blow to the head can result in cervical spine injury: this particularly is true in people suffering pre‑existing degenerative change. The imaging studies provided confirm that there probably was longstanding degenerative (sic) affecting the cervical spine, particularly at C5/6 and C6/7 levels. If the history provided from your client is accepted, then she had a continuity of symptoms from this time on. The discontinuity which seems to be represented by the available medical and physiotherapy notes suggests only an intermittent attendance and that the symptoms had never fully resolved. It would not be unusual for an aggravated cervical spine to undergo a pattern of exacerbation and remission.”
Dr Carney was asked if the need for surgery to the cervical spine at C6/7 level as recommended by Dr Shivalingam was reasonably necessary as a result of the fall on 13 August 2018. Dr Carney answered:
“If there is a continuity in symptoms and evidence of deterioration over the time since the fall, it is probable that the surgery carried out with Dr Shivalingam is a result of the fall on 13 August 2018.
Prolapse rarely occurs de novo. Prolapse usually occurs in a setting of pre‑existing damage to the annulus of the disc; the more common pattern is for there to be a protrusion of disc material into the annulus with gradual protrusion of the disc and the formation of a hard disc bar, this normally occurs as a step wise but progressive process. It may simply be as a consequence of degeneration but where there is evidence of trauma and progression thereafter it is likely the trauma has been a factor in this progression.”
Dr Carney referred to Dr Bentivoglio’s report and opinion that the abnormalities reported in the MRI scan could not date back to 13 August 2018 without significant upper limb symptoms. Dr Carney wrote:
“Dr Bentivoglio does not have evidence of an acute abnormality starting a few weeks prior to the subject MRI scan unless a prior history of deterioration is ignored. If abnormality with pain down the left arm was of acute onset, then it is likely to have occurred as a result of progression of disc protrusion. Dr Bentivoglio states there was evidence of acute prolapse, but it is noted that there was evidence of protrusion of disc material prior to that time. The operative findings are against acute disc prolapse in that they describe the findings of a hard disc bar, not acute prolapse. Hard disc bar is likely to be a result of progressive annular protrusion of disc material other than an acute onset disc prolapse per se, therefore, I do not agree with Dr Bentivoglio’s opinion.”

In a report dated 12 March 2021, Dr Carney referred to medical records previously provided to him, and the report of Ms Tracey, Physiotherapist. Dr Carney was asked if he agreed with Dr Bentivoglio’s view that if Mrs Williamson had sustained trauma to the C6/7 level of her cervical spine in the fall of August 2018, she would have had immediate symptoms present in her neck with immediate left C7 radicular symptoms. Dr Carney wrote:
“Immediate C7 radicular symptoms would occur only if there were an acute prolapse with compression of the C7 nerve root.
The absence of a C7 radiculopathy at the time of the fall does not exclude damage to a cervical disc and the later onset radiculopathy(sic) with an intervening period of neck pain culminating in final protrusion of disc materials sufficient to compress or irritate the C7 nerve root.
The report of Mudgee Physio of 18 October 2020 confirms that when seen on 20 August 2018 Ms Williamson complained of cervical spine pain and that examination on the same day revealed the active range of motion was painfully restricted both left and right rotation reproducing symptoms into the left side of the cervical spine with referral to the ear on left rotation. This would suggest a problem with discogenic pain. I note that at further attendances “Mrs Williamson mentioned on several occasions some ongoing level of cervical symptoms as a result of her fall on 13/08/2018” (reported as 2020 in the subject Mudgee Physio letter but probably a typographical error). Further it is made that on 19/03/2019 Mrs Williamson was “complaining of waking with an increase in cervical spine pain with referral to the left arm over the previous 4 days”. This is a consistent pattern of onset culminating in radicular pain. Therefore, it remains my view as expressed in previous reports and supplementary reports that she suffered a cervical disc injury with progressive damage and the eventual onset of radiculopathy.”
Dr Carney stated that he had noted the additional reports of Dr Bentivoglio and held to the opinions expressed in his previous reports. He stated that he did not agree with Dr Bentivoglio’s conclusions.
In a report dated 24 December 2018, Dr John Bentivoglio, orthopaedic surgeon, noted he had seen Mrs Williamson on 11 December 2018. He reported that he had reviewed documentation including a report from Dr Sullivan, MRI scans, physiotherapy notes, and a questionnaire. He noted that Mrs Williamson described an incident on 22 May 2014 when she fell in the cool room at work and he had examined her back/buttocks, wrist, right elbow and right hip. There was no reference to any fall in August 2019 or any complaint concerning the cervical spine in this report.
In a report dated 15 April 2019 Dr Bentivoglio noted that when he had seen Mrs Williamson on 11 December 2018 for injuries sustained on 22 May 2014, she did not advise him of any complaints with her neck.
In a report dated 10 August 2020, Dr Bentivoglio noted he had reviewed a CT scan of the cervical spine dated 20 March 2019, MRI of the cervical spine dated 10 April 2019, report of Dr Oates dated 27 March 2017, reports of Dr Shivalingam dated 10 April 2019, 26 April 2019 and 1 May 2019, report of Dr Carney dated 29 November 2019, clinical records from South Mudgee Surgery, hospital records from North Shore Private Hospital, discharge summary from Mater Hospital dated 22 August 2017, discharge summary from Mudgee District Hospital dated 13 August 2018 and records from Mudgee Physio.
Dr Bentivoglio noted that there was an incident on 13 August 2018 when Mrs Williamson fainted after taking Endone for right forearm pain due to the injuries in the workplace in 2014.
Dr Bentivoglio wrote:
“The initial incident was on 13 August 2018 and I note a discharge summary from Mudgee Hospital from that day indicating that she presented to that facility with an injury to her back. It indicated she had taken Endone in the morning for her wrist injury and that she normally does not have problems with Endone. She felt a little giddy on the sofa, stood up and then remembers lying on the floor. It is recorded that she experienced pain to her bottom region straight away. Dr Jennifer Tobin did a physical examination and noted that the only tenderness was in the very base of her coccyx. An x‑ray was taken of that area and no fracture was seen. Dr Tobin’s impression was that she had coccygeal bruising. Eight days later she saw her local doctor, Dr Moore, and advised Dr Moore of taking Endone, blacking out, fainting, hitting her head and left elbow. By 3 September 2018 Dr Moore indicated that her neck was okay but her bottom was sore.
It was not until 20 March 2019 that there is any further notation regarding a neck complaint, when it was noted that her neck was stiff and sore with pain radiating down the left side of her neck since Sunday.
When she was first seen by her treating specialist, Dr Shivalingam, a Neurosurgeon whom she saw on 10 April 2019, he indicated that she had a three week history of neck pain with radicular left‑sided arm pain. He indicated that she fairly spontaneously started to experience neck pain and left sided radicular arm pain. Her local doctor organised for her to have a CT scan taken of the cervical spine in March 2019 indicating she did have evidence of cervical spondylosis with degenerative changes being most marked at the C5/6 and C6/7 levels.
An MRI scan was taken of her cervical spine on 10 April 2019 arranged by her treating specialist indicated she had a broadbased posterior annular bulge with a focal left side posteriolateral disc protrusion projecting into the lateral recess, extending into the left C6/7 neural foramen compressing the emerging left C7 nerve root. The C4/5 and
C5/6 disc were noted to be desiccated with posterior annular bulges extending into
the neural foramina being more marked on the left hand side without definite neural
compression.
This lady underwent surgical treatment on 1 May 2019 with a laminectomy performed on the left hand side at C6/7 level. The disc was noted to be quite firm and hard and a tiny fragment of the disc was removed. The nerve root was decompressed dorsally.”
In his summary, Dr Bentivoglio wrote:
“Eight days after the specific incident on 13 August 2018 she saw her local doctor indicating she had both buttock pain as well as neck pain. No investigations were done of her cervical spine at that stage.”
Dr Bentivoglio expressed the view that the MRI scan taken of the cervical spine indicated an acute abnormality (dating from March 2019 and not from August 2018) where she had a broadbased posterior annular bulge with a focal left sided posteriorlateral disc protrusion. He considered that the abnormalities seen on the MRI scan were consistent with the abnormalities seen at the time of surgery. He concluded that the surgery was done for an acute abnormality and not for one that had been present in an essentially asymptomatic form for seven months.
Dr Bentivoglio was of the opinion that from all the medical data, the need for surgery was for an acute onset of left‑sided C6/7 disc protrusion that occurred around March 2019. He considered there was no indication on investigations that she had an injury that could relate to August 2018 and being asymptomatic from August 2018 up to March 2019.
Dr Bentivoglio wrote:
“On all the information available, the need for surgery on the left hand side at C6/7 level performed by Dr Shivalingam was as a result of an abnormality starting in March 2019 and not as a result of the fall on 13 August 2018.”
Dr Bentivoglio was asked whether the alleged complaint of the cervical spine sustained in the fall on 13 August 2018 (if any) was likely to have resolved and if so, when. Dr Bentivoglio wrote:
“This lady presented to Mudgee Hospital for buttock symptoms and not neck symptoms. She did advise her local doctor 8 days following the incident on 21 August 2018 that she had some neck symptoms as well, but these resolved by early September. The cervical spine complaint has not been caused by the 13 August 2018 fall as an abnormality seen on her MRI scan in April 2019 indicated an acute abnormality that started a few weeks prior to the MRI scan being done. The abnormality seen on the MRI scan could not date back to 13 August 2018 without producing significant left upper limb symptoms.”
Dr Bentivoglio stated it was not possible that Mrs Williamson’s left upper limb pain from 20 March 2019 could have been caused by an acute disc prolapse on 13 August 2018 without her continuing to experience significant symptoms in her left upper limb from 13 August 2018 on.
In a report dated 26 January 2021, Dr Bentivoglio noted that he had reviewed various documents in the case. He wrote:
“I viewed the note of the Accident & Emergency Department of the hospital she attended following the August 2018 incident. There was mention that she took Endone on the evening of the fall because of wrist pain, but no mention of any neck injury. The Accident & Emergency notes indicated that she had back symptoms. She attended her local doctor following the fall, and he noted that she did have some symptoms present in her neck and was tender in the region of the C2 level of her cervical spine. He also indicated that by 3 September 2018 that her neck was okay, and by 2 October 2018 her neck was better.
It would seem that she woke on 15 March 2019 with neck and left upper limb pain. She was seen by a spinal surgeon who advised her that she would benefit by surgical treatment to her neck. This was duly done with a posterior decompression. At the time of surgery, the main operative finding was that of a hard and firm disc (which would be consistent with degenerative changes present in her cervical spine). There was also a tiny fragment of disc removed and this would also be consistent with evidence of pre‑existing degenerative changes. Plain x‑rays, CT scans and MRI scans taken of her cervical spine pre-operatively confirm the presence of these degenerative changes.
As this lady had been asymptomatic between 22 October 2018 up until 15 March 2019, I would consider that she only sustained a soft tissue injury to her neck, particularly noting that at the time of her attending the accident and emergency department of the hospital, there is no mention of any neck complaints. I consider her local doctor’s assessment (being that of a neck sprain at the C2 level of the cervical spine) was an appropriate assessment.”
Dr Bentivoglio concluded that Mrs Williamson only sustained a soft tissue injury to the neck in August 2018. He stated that this was consistent with Dr Moore’s notes which indicated she only had tenderness at the C2 level of the cervical spine. Dr Bentivoglio noted that the surgery was performed at C6/7 level of the cervical spine as a result of C7 radicular symptoms that occurred seven months following the incident in August 2018.
Dr Bentivoglio wrote:
“I would consider, from her investigations, that this lady had degenerative disc disease and not an acute disc prolapse with the nerve being trapped as it exited from the spine on 15 March 2019. This diagnosis (degenerative disc disease) would be consistent with the abnormalities seen on the investigations and the history she provided.”
Dr Bentivoglio considered that if Mrs Williamson had sustained trauma to the C6/7 level of the cervical spine in the fall in August 2018 she would have had immediate symptoms present in her neck with immediate C7 radicular symptoms, and this was not the case.
Dr Bentivoglio stated that he had read Ms Tracey’s report and clinical records and considered there was no indication from the local doctor or from her treating specialist that Mrs Williamson had any radicular complaints prior to March 2019. Dr Bentivoglio did not consider radicular complaints arising from the cervical spine at C6/7 level would produce any significant left wrist symptoms and did not consider that the left wrist symptoms may have masked or confused a left‑sided C7 radicular complaints prior to March 2019.
Dr Bentivoglio concluded from the investigations and the fact that she did not mention any injury to her neck at Mudgee Hospital, that she only sustained a soft tissue injury to her neck, and this was consistent with Dr Moore’s notes which indicated she only had tenderness at the C2 level of the cervical spine. Dr Bentivoglio wrote:
“This lady’s surgery was performed at the C6/7 level of cervical spine as a result of C7 radicular symptoms that occurred 7 months following that specific incident. I would consider, from her investigations, that this lady had degenerative disc disease and not acute disc prolapse with the nerve being trapped as it exited from the spine on 15 March 2019. This diagnosis (degenerative disc disease) would be consistent with the abnormality seen on investigations and the history she provided.”
Dr Bentivoglio noted he had viewed the operative findings from the treating specialist and considered they were consistent with degenerative disc disease and not with a progressive annular disc protrusion of disc material. He noted there was only a tiny amount of disc material removed which was consistent with degenerative disc disease. He noted the disc itself was noted to be hard, which was also consistent with degenerative disc disease.
In a report dated 24 February 2021, Dr Bentivoglio stated he was requested to advise whether Ms Tracey’s report and clinical records altered his prior views set out in his report dated 26 January 2021. Dr Bentivoglio wrote:
“She states in August 2018 because of ongoing pain it was necessary for her to take Endone. She had a fainting episode and was taken to Mudgee Hospital where she was diagnosed as having an injury to her coccygeal region. Eight days later she saw her local doctor with some degree of neck discomfort, but the local doctor did not consider it to be a significant abnormality and did not arrange any investigations.
She was referred to physiotherapy and the physiotherapist noted she had some neck pain. Her symptoms worsened in March 2019 and when she was referred to see a spinal surgeon who indicated she had a 3 week history of neck pain. Although there is some record of some degree of neck symptoms intermittently from August onwards, I would not consider the incident in the beginning of August 2018 to be the cause of her neck complaint. The reason for stating this is that her investigations and the surgical treatment she had on her neck was [sic] for an acute abnormality, not for a chronic one.
I have viewed the physiotherapist’s notes (though they really only start after her acute symptoms in March 2019). I have also reviewed her letter dated 16 October 2020. I would consider that there appears to be a discrepancy between her local doctor’s notes and the information supplied by the physiotherapist.”

Reports from treating doctors and physiotherapists

In a discharge summary from Mudgee District Hospital dated 13 August 2018, Dr Jennifer Tobin noted that Mrs Williamson had been discharged after presenting to the facility with an injury – back. Dr Tobin made a diagnosis of coccyx sprain. She wrote:
“Took an Endone this morning for pain in wrist (has fused wrist). Normally okay with Endone. Felt a little giddy on sofa and then stood up to get husband and has stood up, felt v. faint and then remembers lying on floor. … Pain to bottom straight away. Got self up and mobilising ok but sore. Feels ok now. Does occasionally get dizzy if gets out of hot bath quickly. … Prior sacral #.”
Dr Tobin noted that Mrs Williamson was mobilising stiffly but well. She wrote:
“Spine – only tenderness at very base of coccyx. Nil pelvic tenderness. Full power and ROM both legs.”
Dr Tobin formed the impression that there was bruising of the coccyx and advised simple analgesia and rest.
The clinical notes from South Mudgee Surgery include the following entries:
(a)    In an entry dated 21 August 2018, Dr Gary Moore noted that the applicant had hit her head a week ago when she took an Endone and blacked out. He noted that she hit her neck and hurt the left elbow. He wrote:
“Put onto bed by husband but was apparently hot. Doesn’t remember things well. Went to MDH. X‑ray of sacrum, apparently okay. Hurts on sitting and getting up, left elbow hurts.
Examination: Ulnar nerve tender and likely subperiosteal haematoma posterior elbow joint and resisted gross power okay neck tedner [sic] c2.”
Dr Moore referred Mrs Williamson to physiotherapy and for an x‑ray and noted that she needed to get on with the wrist surgery. Diagnostic imaging requested: “x‑ray of the cervical spine”, noting “faint and fell hitting neck with left C2 strain”.
(b)    In an entry dated 3 September 2018, Dr Moore noted that the applicant was booked in to get her wrist done this Wednesday privately. He wrote:
“Neck okay, bottom sore.”
On examination he noted the elbow was better.
(c)    In an entry dated 24 September 2018, Dr Moore noted:
“Post wrist surgery which seems to have helped.”
(d)    In an entry dated 22 October 2018, Dr Moore noted that Mrs Williamson was to be reviewed by Dr Lawson concerning ongoing superficial radial nerve hypothesia. He noted that the tailbone was still not right and more prominent since the fall a few months ago, “neck is better, left elbow sorted”.
He referred the applicant for an MRI of the sacrum and pelvis, noting she had persistent sacral pain since the slip and fall a few months ago. He noted she had a fracture of the sacrum back in 2014 demonstrated on MRI but seemed to improve but now had relapsed since the fall.
(e)    In an entry dated 20 November 2018, Dr Moore noted that the hip and tailbone were worse, and had been progressive since the fall when she fainted. Dr Moore referred the applicant to Dr Thomas.
(f)    In an entry dated 18 December 2018, Dr Moore noted that there was ongoing coccydynia which came on with the fall and was also present with the initial fracture of the coccyx.
(g)    In an entry dated 12 February 2019, Dr Moore noted that Mrs Williamson still had coccydynia.
(h)    In an entry dated 12 March 2019, Dr Moore noted that Mrs Williamson was scheduled for an upcoming injection planned by Dr Taylor and a pain management course.
(i)    In an entry dated 18 March 2019, Dr Moore noted that the applicant looked drawn and stressed and was waiting a reply from the insurance “re covering steroid L spine”. He referred her for an ultrasound.
(j)    In an entry dated 20 March 2019, Dr Alison Sievert noted under “history”:
“Stiff sore neck with pain down L neck since Sunday, has been taking Endone and Panadeine Forte and Diclofenac. Feels need to rest head on something. L grip feels weak. Pain on dorsal surface of arm. Examination: Tender to C6/7 and esp paravertebral area on L, no arm pain, reduced elbow extension strength, reduced wrist extension strength compared to R. Imp cervical radiculopathy.”
Under “management” Dr Sievert noted she had called Mudgee Radiology to get an urgent CT of the cervical spine performed and started Lyrica for discomfort.
(k)    In an entry dated 26 March 2019, Dr Sievert noted that the left arm was very sore and on examination:
“poor power in the left hand persists, holding L arm above head, less tender to top of shoulder. Imp – seems to have settled somewhat compared to last week but possibly L arm possibly as bad or worse”.
Under “possible reason for contact” she wrote: “Left cervical radiculopathy.”
(l)    In an entry dated 29 March 2019 for a telephone consultation, Dr Sievert noted that Mrs Williamson was worried about her neck. Mrs Williamson reported the neck was not worse.
(m)     In an entry dated 1 April 2019, Dr Moore noted after “history”:
“Arrives in extremis with severe left arm pain, seems too severely distressed to contemplate referral to outpatient physiotherapy.”
(n)    In an entry dated 8 April 2019, Dr Moore noted that Mrs Williamson had two weeks until she saw the neurosurgeon and still had LUL discomfort and holds above head. He noted reflexes were okay, power gives way triceps but more pain. After “Reason for contact” he wrote: “Neck pain with radiculopathy.”
(o)    In an entry dated 23 April 2019 Dr Moore noted that Mrs Williamson had ongoing pain and had received advice for surgery. After “management” he wrote:
“Talk re surgery and appears indicated and surgeon is known to be careful/conservative to advice here merited. See post‑op.”
(p)    In an entry dated 24 May 2019, Dr Moore noted that Mrs Williamson was much better post-surgery, her left arm still weak but not painful, and improvement was expected through to mid‑June.

In an x‑ray report of the cervical spine dated 23 August 2018, Dr Nagaratnam, radiologist, noted that the x‑ray of the cervical spine showed degenerative changes in the mid and lower cervical spine, predominantly at C4/C5, C5/C6 and at C6/C7, where there were osteophytes arising from both the anterior and posterior end plates. He reported that there was no fracture.
In a report dated 10 April 2019, Dr Brindha Shivalingam, treating neurosurgeon, noted that Mrs Williamson had a three week history of neck pain and radicular left‑sided arm pain. He recommended a cortisone injection and review in one month. Dr Shivalingam wrote:
“Wendy is a 43 year old lady who fairly spontaneously started experiencing neck pain followed by left‑sided radicular arm pain. It is extremely severe despite anti‑inflammatories and Lyrica.”
He noted that Mrs Williamson had an MRI that day which clearly demonstrated a disc bulge at C6/7 on the left hand side.
In a report dated 26 April 2019, Dr Shivalingam noted that had reviewed Mrs Williamson. He reported that the cortisone injection had no effect, with only very short-lived relief from the local anaesthetic. Dr Shivalingam considered that there was no other solution but to proceed with surgery, being a posterior cervical foraminotomy.
In a report dated 10 April 2019, Dr Geoffrey Parker, radiologist, noted that Mrs Williamson had undergone an MRI of the cervical spine. He concluded that the principal abnormality was left‑sided posterior‑lateral disc protrusion at C6/7 compressing the origin of the left C7 nerve root. He noted that there had been a clinical history of left arm pain.
In an operation report dated 1 May 2019, Dr Shivalingam noted that Mrs Williamson had undergone a left‑sided C6/C7 foraminotomy on 1 May 2019. Under “operative note”, he wrote:
“Laminotomy was performed at C6 and C7. The disc was noted and found to be quite firm and hard and a tiny fragment of disc was removed. The nerve root was then decompressed dorsally.”
In a referral to Dr Shivalingam dated 26 March 2019, Dr Sievert noted that Mrs Williamson had complained of one week of left arm discomfort. She wrote:
“She does not recollect any recent injury although Wendy had a fall with neck pain that never resolved completely in August last year. Wendy is unable to find any comfortable position for her arm and has already seen the physiotherapist by the time she saw me. They were unable to assist her and referred her to me.”
In a report dated 16 October 2020, Ms Anna Tracey, physiotherapist of Mudgee Physio stated that Mrs Williamson attended Mudgee Physio on 20 August 2018 reporting cervical symptoms. She noted that Mrs Williamson was known to her and had been receiving physiotherapy treatment after sustaining her primary injury on 22 May 2014.
Ms Tracey wrote:
“On 20 August 2018 Ms Williamson reported to me that she had fainted (possibly twice) one week prior. She had woken up and found herself on the tiled floor and she described hitting her L temporal region. Ms Williamson described feeling very unusual at the time of the incident and she felt her symptoms were attributable to taking two Endone tablets for relief of her left wrist pain. Ms Williamson stated she attended Mudgee District Hospital after her fall. Ms Williamson reported she had an x‑ray of her lower back and coccyx area and there was no abnormality detected.
At the time of her physiotherapy consultation on 20/08/2018 Ms Williamson described cervical spine pain, lower back and coccygeal pain and pain into her posterior L elbow (probably referral from the cervical pain). She reported she was due to see her nominated treating doctor the following day.
On examination of the cervical spine on 20/08/2018, active range of motion was painfully restricted into rotation bilaterally with both L and R rotation reproducing symptoms into the left side of the cervical spine with referral to the ear on L rotation.”
Ms Tracey stated that Mrs Williamson continued to attend Mudgee Physio intermittently over the following months, largely for management of her lumbar spine pain which was part of her primary injury claim. She wrote:
“Ms Williamson mentioned on several occasions some ongoing level of cervical symptoms as a result of her fall on 13/08/2020 [sic]. Management strategies were discussed at these appointments.”
Ms Tracey stated that Mrs Williamson was subsequently seen by another physiotherapist at the practice on 19 March 2019 complaining of waking with an increase in cervical spine pain with referral to the left arm over the previous four days. Ms Tracey noted Mrs Williamson reported to the treating physiotherapist at this time she had experienced ongoing cervical spine symptoms since falling in August 2018. Ms Tracey noted that Mrs Williamson attended another two sessions of physiotherapy before undergoing C6/C7 nerve root decompression on 1 May 2019.
Ms Tracey noted that on review of the clinical notes there did not appear to be any reference to previous cervical spine pain or other symptoms prior to those recorded on 20 August 2018 detailing the fall on 13 August 2018. Ms Tracey wrote:
“In my opinion, I believe Ms Williamson’s cervical spine symptoms were a result of the fall sustained on 13/08/2018. Prior to this date there are no clinical notes detailing any cervical spine symptoms. Subsequent to this date, and prior to the cervical decompression surgery performed on 1/5/2019, there are clinical notes detailing ongoing cervical spine symptoms. It is unclear why symptoms became exaggerated in March 2019, however symptoms reported were consistently L sided from the time of the injury until the date of surgery.”
The clinical notes from Mudgee Physio include the following entries:
(a)    In an entry dated 20 August 2018:
“Subjective: fainted x2 1 week ago, woke up on tiles, hit L temple region. Went to MDH – thought it may have been due to Endone?? Thinks may be due to anxiety associated with aching hands. To see Dr Moore tomorrow. Pain now left elbow posteriorly and coccyx area particularly when standing up from chair. X‑ray SPL/coccyx – NAD. Neck pain and lower back / coccyx pain.”
(b)    In an entry dated 23 August 2018:
“SB Dr Moore – had SPC x‑ray today. Thinks elbow pain may be due to an irritation. Pt booked herself in with Dr Lawson 5 September in Dubbo. Neck painful on movement during driving into L ear on rotation.”
Treatment included brachial plexus stretches for the elbow and appeared to include treatment to the cervical spine.
(c)    In an entry dated 4 September 2018, after “subjective”:
“Fell onto wall yesterday when overbalanced. States her swelling to lateral R hip. Ongoing L sided neck pain since fall – referral from Dr Moore today. Certificate of Capacity – unfit. Wrist surgery scheduled tomorrow.”
(d)    In an entry dated 25 October 2018, it was noted that Mrs Williamson had a left wrist fusion and that the coccyx was particularly painful.
(e)    Various entries dated in December 2018 indicate that Mrs Williamson was receiving treatment for pain in the coccyx.
(f)    In an entry dated 3 January 2019, it was noted that pain was quite bad into the lower back and coccyx had been painful and there was to be an injection performed into the trochanteric bursa right hip Monday, 7 January 2019.
(g)    In an entry dated 31 January 2019, it was noted Mrs Williamson had an injection into the hip 2/52 ago.
(h)    In an entry dated 19 March 2019, it was noted:
“Current history - Stiff sore neck since 4/7, woke up with stiff neck and pain, got worse during day. Pain radiating down left arm. Can’t get comfortable in any position. Feels comfortable with arm elevation. Past history – had fall in August last year, received physio t/t from Anna.”
Under “treatment” it was noted:
“Treatment – manual traction in sitting and taping.”
Under “provisional diagnosis:
“C4-6 nerve root.”
(i)    In an entry dated 20 March 2019, after “subjective” it was noted that there were no specific changes in symptoms past Rx and only some relief with traction. It was noted:
“Noting very difficult this arm and problem with sitting or standing for any significant period.” Taking Endone, Nurofen consistently. Pain radiating to left arm is worse at present.”
Under “treatment” it was noted that manual traction was performed and Mrs Williamson was fitted with a cervical collar to use in sitting and standing.
(j)    In an entry dated 9 April 2019 the following was recorded:
“Subjective: Wendy had C/T scan one week ago, see report CT scan C6/7 nerve compression. Seeing neurologist for MRI tomorrow. 3/52 unknown onset massage – x2 didn’t help. Fall last August 2018 neck ever since. … Relieving position arms hugged over head – positions cx better and reduces strain on ULLT. … VA always dizziness since fainting last August 2018 – cervical pain.”
Under “objective” the following notes were made:
“Cervical flexion full range with LR increased pain, with RR slight decrease extension 10 much worse.”
After “current clinical diagnosis” was:
“Nerve root irritation C5/6, no compression on pain relief.”

DISCUSSION

The matter to be determined is whether the surgery performed by Dr Shivalingam, namely, a left‑sided C6/C7 foraminotomy, on 1 May 2019 was reasonably necessary as a result of the injury 22 May 2014 which resulted in the subsequent fall on 8 August 2018.
For medical treatment to qualify as “reasonably necessary” it must be appropriate, including in the context of mitigating the effects of any injury to cure, alleviate, sustain the status quo, or to negate and stem progressive deterioration. It can be a question of degree to which treatments effectively alleviate injury symptoms and address pain management. There is a line of cases consistent with this analysis including Rose v Health Commission (NSW) (Rose) [1986] 2 NSWCCR 32.
Burke J in Rose (at pages 47-49) set out some general principles in relation to the issue of whether a particular regimen was medical treatment and whether it was reasonably necessary:

“1.    Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.

2.     However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If is shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purpose of the Act.

3.     Any necessity for relevant treatment results from injury where its purpose and potential effect is to alleviate the consequences of the injury.

4.    It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to and should not be forborne by the worker.

5.     In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for this particular condition.”
The matters to be considered in a section 60 claim include the matters noted by Burke CCJ in Rose (supra) namely:
·        the appropriateness of the particular treatment;
·        the availability of alternative treatment, and its potential effectiveness;
·        the cost of the treatment;
·        the actual or potential effectiveness of the treatment, and
·        the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) Roche DP observed at [89] that:
“With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts…

[105] …on its own, a reduction in pain after the particular treatment does not necessarily ‘meet’ the test of reasonably necessary in section 60, it is a factor that can be considered in determining that issue. More importantly, it should be considered in light of the expert evidence and relevant history of the development of the symptoms…”
The real issue in this matter is whether the purpose and potential effect of the relevant treatment, namely, the left‑sided C6/C7 foraminotomy, was to alleviate the consequences of the injury. It is common ground that Mrs Williamson sustained injury to her right wrist, right hip and lumbar spine when she fell at work on 22 May 2014 and then developed a consequential condition in the left wrist. The respondent conceded that the fall on 13 August 2018 had occurred because Mrs Williamson had taken some Endone to relieve the pain in her wrist. However, the respondent submitted that Mrs Williamson only sustained a sprain or soft tissue injury at the C2 level of the cervical spine in the fall on 13 August 2018 and she had recovered from this injury. The respondent argued that the surgery at C6/7 in the cervical spine was unrelated to any injury sustained by Mrs Williamson in the fall on 13 August 2018 and was not carried out in order to alleviate the consequences of the injury on 13 August 2018.
A condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Mrs Williamson only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40] – [55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).
Mrs Williamson has given evidence in her statement dated 27 March 2019, that she was in a lot of pain when she “came to” after the fall on 13 August 2018. She said that she saw her GP the next day, who prepared a WorkCover certificate, which recorded the fall and noted injury to her neck, sacrum and left elbow. She stated that she also went to the hospital.
Mrs Williamson said that physiotherapy was recommended which she underwent for the neck. She said that she had an x‑ray taken of her head and neck.
In her statement dated 27 February 2020, Mrs Williamson said that immediately following the fall, the focus from all the doctors she spoke to (including at the hospital) was her sacrum, which she had previously fractured in the first fall. She said that she believed she spoke about her neck being painful right away, and that was certainly reflected in the physiotherapist’s notes. Mrs Williamson stated that she believed she had damaged her cervical spine in the fall in August 2018 as the symptoms came on shortly after, did not abate, and ultimately resulted in surgery.
In her statement dated 9 September 2020, Mrs Williamson said that from the time when she fell in August 208 she was “never completely right”. She stated that she went to Mudgee Hospital that day to have her injuries examined. She stated that she complained to the hospital staff of soreness in her left elbow and left side of her head and neck. She said that they x‑rayed her lumbar spine. Mrs Williamson stated that after the hospital attendance, she still felt extremely sore around her neck area and felt a weird “crackling” sensation in her left ear when she moved my head. She said that she went to her physiotherapist a week later and explained her situation. Mrs Williamson said investigations were organised to try and figure out what was happening with her neck. She said that she had an x‑ray of her cervical spine on 23 August 2018. Mrs Williamson stated that she continued with getting physiotherapy to her neck for several months. She stated the neck symptoms never resolved and actually got worse over time.
Mrs Williamson underwent left wrist surgery in September 2018. She said that during this time, her neck continued to deteriorate. She said that she thought she just needed to heal and the symptoms would resolve themselves over time. Mrs Williamson said that in early 2019, her neck pain and symptoms intensified a lot and she started to get more intense left arm pain. She said that the pain intensified so much that she went to her GP for a CT scan, which revealed she needed surgery.
Mr Williamson, in an undated statement, said that he took Mrs Williamson to Mudgee Hospital the morning after she fell in August 2018 as she was complaining about very bad pain in her neck and bottom. When Mrs Williamson was discharged from hospital she was told to go and see her local medical practitioner if things worsened. He said that they went to the GP shortly after as things were worsening. He stated that he was present when Dr Moore told Mrs Williamson to go and get x‑rays of her neck. Mr Williamson said at that stage,
Mrs Williamson’s complaints had focussed almost entirely on her neck problems. He believed that a couple of days he took Mrs Williamson to get x‑rays.
Mr Williamson stated that since August when the fall happened, he had observed
Mrs Williamson complaining increasingly about her neck pain. He said that since that time, he had taken Mrs Williamson on at least five occasions to the physiotherapist for treatment specifically for her neck. He stated that Mrs Williamson had always said to him that her neck became very painful after the fall in August.
Mr Williamson stated that when it was apparent after about six months that physiotherapy was not improving Mrs Williamson’s neck pain, they went back to the GP and got a referral for a specialist.
There was no report of symptoms or pain in the neck region in the Mudgee Hospital Discharge Summary dated 13 August 2018. Dr Jennifer Tobin noted that Mrs Williamson had been discharged after presenting to the facility with an injury to the back and made a diagnosis of coccyx sprain.
However, an entry dated 21 August 2018 in the clinical notes of Dr Gary Moore, recorded that Mrs Williamson had hit her head a week ago when she took an Endone and blacked out. Dr Moore noted that she hit her neck and hurt her left elbow. On examination he noted that the neck was tender at C2. Dr Moore referred Mrs Williamson to physiotherapy requested an x‑ray of the cervical spine, noting “faint and fell hitting neck with left C2 strain”.
I accept that in the entry dated 3 September 2018, Dr Moore noted “Neck okay, bottom sore” and that in the entry dated 22 October 2018, Dr Moore noted that the tailbone was still not right and more prominent since the fall a few months ago, and “neck is better, left elbow sorted”. There were no further references to the neck or cervical spine in the clinical notes until 20 March 2019, when Dr Sievert noted “Stiff sore neck with pain down L neck since Sunday ... Imp cervical radiculopathy.”

On 26 March 2019, Dr Sievert, in a referral to Dr Shivalingam, noted that Mrs Williamson had complained of one week of left arm discomfort and did not recollect any recent injury although Mrs Williamson had a fall with neck pain that never resolved completely in August last year.
The treating physiotherapist, Ms Tracey, in a report dated 16 October 2020, stated that Mrs Williamson attended Mudgee Physio on 20 August 2018 reporting cervical spine pain, lower back and coccygeal pain and pain into her posterior L elbow which Ms Tracey considered was probably referral from the cervical pain. She reported that on examination of the cervical spine on 20 August 2018, active range of motion was painfully restricted into rotation bilaterally with both L and R rotation reproducing symptoms into the left side of the cervical spine with referral to the ear on L rotation.
Ms Tracey stated that Mrs Williamson continued to attend Mudgee Physio intermittently over the following months, largely for management of her lumbar spine pain, however, Ms Williamson mentioned on several occasions some ongoing level of cervical symptoms as a result of her fall in August and management strategies were discussed at these appointments.
Ms Tracey noted that Mrs Williamson was subsequently seen by another physiotherapist at the practice on 19 March 2019 complaining of waking with an increase in cervical spine pain with referral to the left arm over the previous four days. Mrs Williamson reported to the treating physiotherapist at this time that she had experienced ongoing cervical spine symptoms since falling in August 2018.
Ms Tracey believed that Ms Williamson’s cervical spine symptoms were a result of the fall sustained on 13 August 2018. She observed that prior to this date there were no clinical notes detailing any cervical spine symptoms and subsequent to this date, and prior to the cervical decompression surgery performed on 1 May 2019, there were clinical notes detailing ongoing cervical spine symptoms. Ms Tracey stated that it was unclear why symptoms became exaggerated in March 2019, however, symptoms reported were consistently left sided from the time of the injury until the date of surgery.
Dr Nagaratnam, in the x‑ray report of the cervical spine dated 23 August 2018, noted that the x‑ray of the cervical spine showed degenerative changes in the mid and lower cervical spine, predominantly at C4/C5, C5/C6 and at C6/C7, where there were osteophytes arising from both the anterior and posterior end plates.
In a report dated 29 November 2019, Dr Carney noted that Mr Williamson said that on the following day after the fall in August 2018 Mrs Williamson was complaining of bad pain in her neck and bottom and her condition continued to worsen and she complained increasingly of neck pain from then on. He noted that Mrs Williamson had hit her head in the fall and she complained of neck pain immediately thereafter, with increasing symptoms. He concluded therefore that the decompression surgery performed on 1 May 2019 by Dr Shivalingam was reasonably necessary in the treatment of Mrs Williamson’s condition. Further, he considered that was supportive evidence in that Dr Shivalingam found left sided radicular arm pain and the MRI cervical spine performed on 10 April 2019 demonstrated at C6/7 focal left side postero‑lateral disc protrusion extending into the left lateral recess extending into the left C6/7 neuroforamin compressing the emerging left C7 nerve root.
In a report dated 26 October 2020, Dr Carney again addressed the question of whether the decompression surgery performed on 1 May 2019 was reasonably necessary treatment for Mrs Williamson’s condition. He noted that Mrs Williamson had confirmed a continuity of cervical spine symptoms following the fall on 13 August 2018. He noted that a fall with a blow to the head can result in cervical spine injury, particularly, in people suffering pre‑existing degenerative change. He considered that the imaging studies provided confirmed that there probably was longstanding degenerative disease affecting the cervical spine, particularly at C5/6 and C6/7 levels. Dr Carney noted that if the history provided by Mrs Williamson was accepted, then she had a continuity of symptoms from this time on. He noted that any discontinuity which seems to be represented by the available medical and physiotherapy notes suggested only an intermittent attendance and that the symptoms had never fully resolved. Dr Carney expressed the view that it would not be unusual for an aggravated cervical spine to undergo a pattern of exacerbation and remission. Dr Carney considered that if there was a continuity in symptoms and evidence of deterioration over the time since the fall, it was probable that the surgery carried out with Dr Shivalingam was the result of the fall on 13 August 2018. He noted that prolapse rarely occurred de novo and usually occurred in a setting of pre‑existing damage to the annulus of the disc; the more common pattern was for there to be a protrusion of disc material into the annulus with gradual protrusion of the disc and the formation of a hard disc bar, and this normally occurred as a step wise but progressive process. He noted that it may simply be as a consequence of degeneration but where there was evidence of trauma and progression thereafter it was likely the trauma had been a factor in this progression.
Dr Carney referred to Dr Bentivoglio’s opinion that the abnormalities reported in the MRI scan could not date back to 13 August 2018 without significant upper limb symptoms. Dr Carney noted that Dr Bentivoglio did not have evidence of an acute abnormality starting a few weeks prior to the subject MRI scan unless a prior history of deterioration was ignored. Dr Carney considered that if abnormality with pain down the left arm was of acute onset, then it is likely to have occurred as a result of progression of disc protrusion. He referred to Dr Bentivoglio’s statement there was evidence of acute prolapse but noted that there was evidence of protrusion of disc material prior to that time. Dr Carney considered that the operative findings were against acute disc prolapse in that they described the findings of a hard disc bar, not acute prolapse. He noted that hard disc bar was likely to be a result of progressive annular protrusion of disc material other than an acute onset disc prolapse per se, and therefore, did not agree with Dr Bentivoglio’s opinion.
In his final report dated 12 March 2021, Dr Carney was asked to comment on
Dr Bentivoglio’s opinion that if Mrs Williamson had sustained trauma to the C6/7 level of her cervical spine in the fall of August 2018, she would have had immediate symptoms present in her neck with immediate left C7 radicular symptoms. Dr Carney expressed the view that immediate C7 radicular symptoms would occur only if there were an acute prolapse with compression of the C7 nerve root. He stated that the absence of a C7 radiculopathy at the time of the fall did not exclude damage to a cervical disc and the later onset radiculopathy with an intervening period of neck pain culminating in final protrusion of disc materials sufficient to compress or irritate the C7 nerve root. Dr Carney noted that the report of Mudgee Physio of 18 October 2020 confirmed that when seen on 20 August 2018 Mrs Williamson complained of cervical spine pain and that examination on the same day revealed the active range of motion was painfully restricted both left and right rotation reproducing symptoms into the left side of the cervical spine with referral to the ear on left rotation. Dr Carney considered that this suggested a problem with discogenic pain. He noted that at further attendances Mrs Williamson mentioned on several occasions some ongoing level of cervical symptoms as a result of her fall on in August 2018 and that on 19 March 2019 Mrs Williamson was “complaining of waking with an increase in cervical spine pain with referral to the left arm over the previous 4 days”. Dr Carney considered that this was a consistent pattern of onset culminating in radicular pain and confirmed his view as expressed in previous reports that Mrs Williamson suffered a cervical disc injury with progressive damage and the eventual onset of radiculopathy.
The respondent relied on the reports of Dr Bentivoglio. In his report dated 10 August 2020, Dr Bentivoglio stated that Mrs Williamson saw her local doctor eight days after the incident on 13 August 2018 indicating she had both buttock pain as well as neck pain but no investigations were done of her cervical spine at that stage. Dr Bentivoglio’s history was incorrect which was surprising as he was provided with the clinical notes of Dr Moore dated 21 August 2018 which referred to Mrs Williamson being referred for an x-ray of the cervical spine. Mrs Williamson was also sent for physiotherapy but Dr Bentivoglio did not refer to that that treatment.
Dr Bentivoglio expressed the view that the MRI scan taken of the cervical spine indicated an acute abnormality dating from March 2019 and not from August 2018, where Mrs Williamson had a broad based posterior annular bulge with a focal left sided posteriorlateral disc protrusion. He concluded that the surgery was done for an acute abnormality and not for one that had been present in an essentially asymptomatic form for seven months. Dr Bentivoglio was of the opinion that from all the medical data, the need for surgery was for an acute onset of left‑sided C6/7disc protrusion that occurred around March 2019.
Dr Bentivoglio considered there was no indication on investigations that Mrs Williamson had an injury that could relate to August 2018 being asymptomatic from August 2018 up to March 2019. He concluded that the need for surgery on the left hand side at C6/7 level performed by Dr Shivalingam was as a result of an abnormality starting in March 2019 and not as a result of the fall on 13 August 2018. Dr Bentivoglio was not provided with the statements of Mrs and Mr Williamson. His view that Mrs Williamson was asymptomatic from August 2018 up to March 2019 was not, in my view, supported by the evidence. While Dr Moore made clinical notes, which could support the view that Mrs William’s neck symptoms after the fall on 13 August 2018 had resolved by September 2018, these were inconsistent with the evidence of Mrs Williamson, Mr Williamson, Dr Siebert and Ms Tracey.
Dr Bentivoglio was of the view that any neck symptoms caused in the fall on 13 August 2018 resolved by early September. He considered that the abnormality seen on her MRI scan in April 2019 indicated an acute abnormality that had started a few weeks prior to the MRI scan being done and could not date back to 13 August 2018 without producing significant left upper limb symptoms. Dr Bentivoglio stated it was not possible that Mrs Williamson’s left upper limb pain from 20 March 2019 could have been caused by an acute disc prolapse on 13 August 2018 without her continuing to experience significant symptoms in her left upper limb from 13 August 2018 on.
In a report dated 26 January 2021, Dr Bentivoglio noted that it appeared that Mrs Williamson woke on 15 March 2019 with neck and left upper limb pain. He noted that at the time of surgery, the main operative finding was that of a hard and firm disc which he considered would be consistent with degenerative changes present in her cervical spine. He reported that there was also a tiny fragment of disc removed which would also be consistent with evidence of pre‑existing degenerative changes. Dr Bentivoglio noted that Mrs Williamson had been asymptomatic between 22 October 2018 up until 15 March 2019 and considered that she only sustained a soft tissue injury to her neck. He considered that her local doctor’s assessment (being that of a neck sprain at the C2 level of the cervical spine) was an appropriate assessment.
Dr Bentivoglio noted that the surgery was performed at C6/7 level of the cervical spine as a result of C7 radicular symptoms that occurred seven months following the incident in August 2018.
Dr Bentivoglio considered from the investigations that Mrs Williamson had degenerative disc disease and not an acute disc prolapse with the nerve being trapped as it exited from the spine on 15 March 2019. He was of the view that if Mrs Williamson had sustained trauma to the C6/7 level of the cervical spine in the fall in August 2018 she would have had immediate symptoms present in her neck with immediate C7 radicular symptoms, and this was not the case.
Dr Bentivoglio concluded that Mrs Williamson’s surgery performed at the C6/7 level of cervical spine was a result of C7 radicular symptoms that occurred seven months following the fall in August 2018. He considered, from her investigations, that Mrs Williamson had degenerative disc disease and not acute disc prolapse with the nerve being trapped as it exited from the spine on 15 March 2019.
In his report dated 24 February 2021, Dr Bentivoglio referred to Ms Tracey’s report and clinical records. Although he accepted that there was some record of some degree of neck symptoms intermittently from August onwards, he did not consider the incident in the beginning of August 2018 to be the cause of her neck complaint because the investigations and the surgical treatment she had on her neck were for an acute abnormality, not for a chronic one.
Some of the clinical notes including the brief notes in the Discharge Summary from Mudgee Hospital and the clinical notes of Dr Moore should be addressed with caution. The lack of record in the notes of the general practitioner is not necessarily a basis for finding that such complaints were not made (Winter v New South Wales Police Force [2010] NSWWCCPD 12). The notes in both the Mudgee Hospital Discharge summary and Dr Moore’s clinical notes are very brief and were not particularly comprehensive. The notes from Mudgee Physiotherapy were far more detailed. In so far as any inconsistency arises between
Mrs Williamson’s evidence and the hospital clinical notes, I prefer the account given by
Mrs Williamson.
I accept the evidence of Mrs Williamson and her husband, Mr Jay Williamson. I am satisfied that Mrs Williamson sustained an injury to her cervical spine in the fall on 13 August 2018 and continued to suffer symptoms in the cervical spine which increased in severity over the months following the fall and particularly in March 2019. It appears that Mrs Williamson did not complain about her neck symptoms to her GP over this period but I note that this was a period in which she underwent surgery to her left wrist in September 2018 and experienced a severe increase in pain in her low back and coccyx. The focus of treatment by her GP and physiotherapist was, understandably, on those areas.
Having accepted the evidence of Mrs Williams and, in particular, her evidence that she continued to suffer symptoms in the cervical spine which increased in severity over the months following the fall and particularly in March 2019, I have treated Dr Bentivoglio’s opinion with some caution. I prefer the opinion of Dr Carney to that of Dr Bentivoglio for a number of reasons. Firstly, Dr Bentivoglio, who was not provided with the statements of Mr and Mrs Williamson, did not take a history of a continuity of cervical spine symptoms following the fall on 13 August 2018. Secondly, Dr Bentivoglio stated that Mrs Williamson was not referred for any investigation by her GP in August 2018 after the fall on 13 August 2018 whereas it was clear that Mrs Williamson had an x-ray of the cervical spine. It can be inferred from this referral that Dr Moore considered that there could be some more serious injury to the neck than a sprain at C2 level.
I consider that Dr Carney’s opinion was not only based on the correct history but his reasoning was logical and persuasive. I accept Dr Carney’s view that the operative findings were against acute disc prolapse in that they described the findings of a hard disc bar, not acute prolapse and the hard disc bar was likely to be a result of progressive annular protrusion of disc material rather than an acute onset disc prolapse. Dr Carney noted that
Ms Tracey confirmed that when seen on 20 August 2018 Mrs Williamson complained of cervical spine pain and that examination on the same day revealed the active range of motion was painfully restricted both left and right rotation reproducing symptoms into the left side of the cervical spine with referral to the ear on left rotation. I accept Dr Carney’s opinion that this suggested a problem with discogenic pain.
On balance, the weight of the medical evidence supports a finding that Mrs Williamson had hit her head and injured her cervical spine in the fall on 13 August 2018. I am not persuaded that Mrs Williams merely sustained a sprain or soft tissue injury at C2 that resolved within some weeks. Mrs Williamson had pre-existing longstanding degenerative changes in the cervical spine particularly at C5/6 and C6/7 levels but was asymptomatic before the fall on 13 August 2018. I am satisfied that there was an aggravation of the pre-existing degenerative changes in the cervical spine when she fell on 13 August 2018. She then had a continuity of symptoms from this time on although there was some possible pattern of exacerbation and remission. On balance, I am satisfied that the surgery carried out with Dr Shivalingam was reasonably necessary as the result of the fall on 13 August 2018. I have accepted
Dr Carney’s opinion that where there was evidence of trauma and progression thereafter it was likely the trauma had been a factor in this progression of the disc protrusion and the eventual onset of radiculopathy.
There was no issue that the left‑sided C6/C7 foraminotomy performed by Dr Shivalingam was an appropriate form of treatment for Mrs Williamson.
The respondent is to pay the applicant’s section 60 expenses in respect of treatment by Dr Brindha Shivalingam, namely, a left‑sided C6/C7 foraminotomy and associated expenses as a result of the injury on 22 May 2014 on production of accounts and/or receipts.

Carolyn Rimmer
MEMBER

7 April 2021