Zgouras v Australian Associated Motor Insurers Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zgouras v Australian Associated Motor Insurers Ltd [2021] NSWPIC 122
APPLICANT:	Katherine Zgouras
RESPONDENT:	Australian Associated Motor Insurers Ltd
MEMBER:	Ms Elizabeth Beilby
DATE OF DECISION:	18 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Section 4 injury, lack of early contemporaneous complaint not established; consideration of onset of symptomatology not adopted in statement form; Held- award for the applicant to lumbar spine, thoracic injury not proved to requisite level.
DETERMINATIONS MADE:	1. The applicant suffered an injury to her lumbar spine arising out of the nature and conditions of employment with the respondent. 2. Award for the respondent respect of the claim of injury to the thoracic spine.

STATEMENT OF REASONS

BACKGROUND

Katherine Zgouras (the applicant) commenced employment with Australian Associated Motor Insurers Ltd (the respondent) as a call centre operator in 2002. Prior to commencing her employment the applicant says that she had no pre-existing neck or shoulder pain.
The applicant describes her duties of employment as being to supply car quotes for insured customers, sell policies and answer questions from customers in relation to their policies.[1] The applicant was required to sit at a desk and take calls whilst using a headset and entering data with a keyboard and a computer.
[1] Page 2 of the Application
On 26 June 2003 the applicant was working her shift without incident until approximately 6.50pm whilst she was on a telephone call with a customer. That call went for approximately 20 to 40 minutes and she was wearing a headset which was not working properly.
The applicant says the only way she could get the speakers in the headset to work properly was to place her hand against the left headset and to tilt her head to the left so basically her left hand was supporting the left earpiece to her ear. The applicant explains that while she was typing data into the computer she used her right hand and remained with her head tilted for the duration of the call. At the end of the call the applicant straightened her head and felt immediate pain in the neck which radiated to the left shoulder. There is no issue that the applicant sustained an injury to the cervical spine in this event.
The applicant consulted Dr Papadakis and Dr Alberti in relation to her pain symptomatology and the applicant’s recollection is that both doctors recommended physiotherapy which the applicant underwent.
The applicant was off work for 2½ weeks and consulted with Dr Chowdhury at Kingsgrove. Dr Chowdhury referred the applicant for x-rays which revealed no abnormalities and then suggested the applicant undergo a cortisone injection.
On return to work the applicant says that she was unaware of the requirement to make a claim however verbally told her managers about her injury. The applicant experienced ongoing pain in the neck and shoulder and saw Dr Maniam in respect of her cervical symptomatology.
The applicant underwent an MRI of her thoracic spine in August 2003 which evidenced a syrinx between the third and eighth thoracic levels.
There was a workplace assessment carried out of the applicant’s workstation[2] and changes were suggested which included raising the height of the chair, a reinforced foot rest, correcting the level of the monitor and the use of additional adjustable raisers.
[2] Page 14 of the Application
As the applicant’s cervical pain did not improve she was referred to Dr McGee-Collett by her general practitioner who performed surgery on the applicant on 23 March 2004.
When the applicant returned to work after her surgery she returned to work on reduced hours in two different areas of the business initially working the switchboard and then the CTP area. The applicant explains the only difference between the switchboard and the CTP area duties was that the pre-injury duties involved shorter phone calls but at higher volumes. The applicant says she was still required to sit for prolonged periods, use the keyboard and transfer calls using a telephone keypad and maintain prolonged postural positions. The applicant says that she continued to feel pain radiating from the neck into the arms and hands and back.[3]
[3] Page 26 of the Application
She attempted to persevere with her pain until March 2006 but found sitting for prolonged periods difficult.[4]
[4] Page 16 of the Application
On 23 June 2006 the applicant approached her employer for alternate duties however the insurer at that stage had denied liability in respect of the applicant’s injuries.
The applicant’s employment was terminated on 29 January 2007.
In 2008 the applicant gained employment at Curves Gym as a casual fitness technician. The applicant says she could not tolerate sitting at a desk without appropriate breaks to cater for her injuries and felt the need to move around. The applicant felt she was able to perform her duties on a casual basis as she was not required to sit for prolonged periods or exercise. Her duties essentially were to provide motivation and help energise women to reach their health and fitness goals by working with members on the machines and on recovery stations encouraging them in correct technique and encouraging new members. Light duties also included some light cleaning duties.
The applicant then received a small promotion to trainee manager at a different Curves Gym with a small pay increase. The applicant’s hours increased and she found that she was suffering more pain and some anxiety and depressive symptoms.
The applicant still wanted a career and wanted to upgrade her hours so she applied for a management position on a casual basis at a further Curves Gym franchise. The new company was called Fitness Angels and the applicant understood it had provided more staff support and flexibility. The applicant commenced work with her new employer on 23 March 2009. The applicant says that after commencing that employment due to the physical requirements she was unable to return working there without relapse so she resigned after one month.
Further employment included work at Braveheart Clothing in June 2010 and ceased when the applicant was terminated as her employer observed the applicant stretching in the workplace.
The applicant gained casual employment at Fernwood Fitness in February 2011. Her duties involved greeting customers, cashier duties and other light duties.
Her duties then changed to being a group trainer and a personal trainer. This required instructing the clients to lift correctly and motivate them however did not require any vigorous activity but only to instruct and supervise their clients. Her position was made redundant a short time thereafter.
In February 2019 the applicant obtained further employment as a career consultant assisting people with disabilities to find employment.
The applicant has previously had proceedings in the commission on two occasions which have resulted in an agreement of 33% whole person impairment in relation to the cervical spine. A claim in respect of the back has previously been made and discontinued
The applicant now claims further lump sum impairment in respect of the thoracic and lumbar spine relying on the reports of Dr Maniam dated 13 June 2019, 20 April 2020 and 20 May 2020. Dr Maniam assessed the applicant’s injuries at 43% whole person impairment.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute
(a)has the applicant suffered an injury to the lumbar and thoracic spine arising from the nature and conditions of her employment?

Matters not in dispute

The applicant did not pursue a claim in respect of consequential conditions in the lumbar and thoracic spine.
The parties made no submissions in relation to a claim for scarring and as such I make no determination in relation to this issue.

PROCEDURE BEFORE THE COMMISSION

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.
The parties have agreed to the determination of the matter without a conference or formal hearing.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)Application to Resolve a Dispute (the Application), and
(b)Reply to Application to Resolve a Dispute.

Medical Evidence

I will now examine the medical evidence.

Dr Maniam

The applicant started consulting Dr Vijay Maniam, orthopaedic specialist, in early 2004. The initial consultations appear to be focused on the applicant’s cervical symptomatology which is not surprising. Indeed, in the treating correspondence annexed to the Application commencing in January 2004,[5] the applicant’s complaints appear to be limited to cervical symptomatology and then move all on in 2005 to include a brief improvement in symptoms following the surgery, however a return to significant cervical symptomatology thereafter.
[5] Page 362 of the Application
Dr Maniam initially recommended the applicant undergo an MRI which disclosed a thoracic syringohydromyelia between T3 and T8. In correspondence dated 20 September 2004[6] it appears that there is complaint made specifically in relation to the thoracic spine in addition to neck, upper limb and lower limb symptomatology. Dr Maniam suggests the applicant obtain neurosurgical opinion in relation to the syrinx.
[6] Page 367 of the Application
Dr Maniam has prepared a report dated 20 June 2005 at the request of the applicant’s then solicitors regarding the applicant’s injuries.[7] Dr Maniam takes a history of an injury to the neck with symptoms commencing in 2003. The symptoms progressed radiating to the left supraspinatus fossa and the left arm and hand. No history was taken in respect of any pain in the thoracic and/or lumbar spine however the syrinx was noted.
[7] Page 370 of the Application
In a further report of the same date Dr Maniam opines that the applicant has assessable percentage losses relating to her cervical injury and makes no assessment in relation to the thoracic and/or lumbar spines.
In a further report dated 17 July 2008 to the applicant’s then solicitors[8] Dr Maniam once again outlines the applicant’s significant symptomatology in relation to the cervical spine. No mention is made in relation to the applicant’s thoracic and/or lumbar condition.
[8] Page 380 of the Application
Dr Maniam saw the applicant on 23 May 2018 in relation to injuries sustained to the cervical spine and upper extremities and had also seen her on a few occasions following that appointment. Dr Maniam outlines the complaints made by the applicant at the recent consultation which included pain in the neck, numbness in the upper limbs and toes, weakness in the upper extremities, paraesthesia in the hands, however there is no complaint reported in respect of the thoracic and/or lumbar spine.
In a report dated 13 June 2019, Dr Maniam has been provided with a recent MRI of the whole spine which confirms the synrinx and mild generalised spondylitic changes in the thoracic spine. In addition, at L3/4 there was moderate disc desiccation and a mild posterior annular bulging and at L4/5 there was minor disc desiccation with a small left foraminal disc protrusion with an associated annular tear.
Dr Maniam commented that it was his understanding a neurologist had attributed the syrinx to trauma[9] (post traumatic) and was responsible for getting the symptoms in the lower limbs. Dr Maniam was therefore minded to include the traumatic thoracic syrinx to be included in his assessment of whole person impairment. Dr Maniam attributed all the impairments that he calculated, that is, the cervical spine, sensory discomfort in the hands, traumatic syrinx in the thoracic spine and scarring all to one accident.
[9] Page 393 of the Application
By a further report dated 20 April 2020 to the applicant’s solicitors[10] Dr Maniam then outlines his consideration of the applicant’s pain in the lumbar spine. He says that the permanent injuries in the cervical spine, left upper extremity had overshadowed the symptoms in the lumbar spine.
[10] Page 404 of the Application
Dr Maniam took a history that the applicant developed pain in the lumbar spine as a consequence of prolonged sitting, initially the symptoms being episodic and minimal and with the passage of time increasing in intensity and becoming more frequent. The symptoms in July 2019 became more acute and Dr Maniam focused his attention in consultations to treatment to the lumbar spine.
Dr Maniam considered that the applicant’s then age, being 44, it would be expected that she would have some amount of constitutional degenerative disease. However, in Dr Maniam’s opinion, there were protrusions and impingement at L3/4 arising from prolonged sitting giving rise to an axial loading in the lumbar spine. This had been a significant probable cause for development of pain at L3/4. To his mind the applicant’s employment seems to have been the substantial contributing factor to the applicant’s condition. In that report Dr Maniam also observed that the lumbar pain at the beginning of the applicant’s treatment with him was only mild and with time the symptoms deteriorated and became more regular and intense.
Interestingly, Dr Maniam observes that the applicant was seen for lumbar spine pains on multiple occasions in 2004, 2005, 2006, 2007, 2008 then recommencing in 2016.[11]
[11] Page 417 of the Application
In relation to causation, Dr Maniam comments that the injury to the lumbar spine is a separate injury occurring through similar causes about the same period she became aware of the neck, it was not a consequential injury.

Dr Milder

Dr Dan Milder was the applicant’s treating neurologist, referred to him by Dr Maniam. The first consultation appears to have taken place on 22 August 2006.[12] Dr Milder thought that the pain and numbness in the lower limbs may reflect damage to spino-thalamic fibres affected by a syrinx within the thoracic spinal cord. Nevertheless, a presumed post-traumatic thoracic syrinx had not changed in size.
[12] Page 453 of the Application
Dr Milder does not provide any assistance with an opinion as to the cause of the syrinx other than it is likely to be post-traumatic.
Dr Milder has prepared a report dated 19 October 2009 to the applicant’s then solicitors.[13] Dr Milder took a history of the events in June 2003 causing significant cervical symptomatology with present numbness and paraesthesia of the fingers and numbness in the right thigh and left foot causing spontaneous shooting pains in the left lower limb.
[13] Page 454 of the Application
Dr Milder noted the syrinx between T3 and T8 and commented that this was an incidental finding which “may be the cause of pains in the lower limb”.
Under a heading “Attributability”, Dr Milder opines that the cervical pain and paraesthesia within the fingers were due entirely to stresses placed upon the cervical spine and wrists during her duties previously as a call-centre operator. He does not make any comment in relation to the syrinx.
On further review of the applicant on 19 October 2009, 25 February 2011 and 7 July 2011, further complaint was made by the applicant particularly in relation to her carpal tunnel syndrome. No complaint was made in respect of the thoracic spine and/or lumbar spine.

Dr Martin McGee-Collett

Dr McGee-Collett was the applicant’s treating neurosurgeon who first saw her on 14 November 2003[14]. At that stage the applicant gave a history that three to four months ago she developed neck, left shoulder and left upper limb pain following a prolonged period of holding her neck cocked over to the left. Dr McGee-Collett suggested the applicant treat her cervical symptomatology with a simple posterior C6 nerve root decompression and discectomy as soon as possible. There was no mention in his treating report of any lumbar or thoracic pain.
[14] Page 349 of the application
On review on 29 April 2004[15], after the surgery took place on 23 March 2004,
[15] Page 353 of the application
Dr McGee-Collett was pleased that the applicant’s wound was healing well and the pain and stiffness seemed to be settling.
On further review on 29 June 2004[16] the applicant’s surgery had assisted her however she had ongoing problems with neck pain and occasional paraesthesia in the left upper limb. No mention is made of any lumbar or thoracic pain.
[16] Page 356 of the Application
On further review on 14 September 2004[17] the applicant reported that her symptoms had returned to a level of intensity as they were prior to surgical intervention. Dr McGee-Collett looked at a recent MRI which disclosed no neural compression of any significance but did display disc degeneration at C4/5 and C5/6.
[17] Page 358 of the Application
The incidental finding of idiopathic syrinx in the cervical and thoracic region was unchanged from the preoperative study. Dr McGee-Collett did not think that there was any need for surgery for neural decompression or for surgery in relation to the syrinx.
Dr McGee-Collett thought it was a remote possibility that the syrinx was causing the applicant’s symptoms.
In August 2005 the applicant began complaining in respect of bilateral carpal tunnel syndrome symptomatology and Dr McGee-Collett thought it would be prudent for the applicant to undergo repeat EMG and nerve conduction studies to investigate this symptomatology.[18]
[18] Page 359 of the Application
Hand written notes, which appear to be treating notes dated 1 August 2005 from
[19] Page 361 of the application
Dr McGee-Collett are annexed to the application.[19] there is a reference to “LBP” which I assume to be lower back pain. This obviously represents a complaint of lower back pain at that time.

Dr Mahony

Dr Mahony was retained by the respondent’s then solicitors to prepare a report on 21 September 2004.[20] Dr Mahony took a history of the event on 26 June 2003 where the applicant observed pain in the side of her neck radiating to her shoulder. On examination of the back Dr Mahony observed the spinal movements were within normal limits.
[20] Page 447 of the Application
Dr Mahony took a history of symptoms referable to a thoracic strain as well as a lower lumbar back strain with nerve root irritation affecting the lower limb which he considered the added symptoms to be associated with altered spinal movement being indirectly related to the neck condition. That is, it was his opinion that there was a consequential condition referable to the thoracic spine and lower back associated with altered spinal movement related to the neck condition.

Physiotherapy Notes

The applicant attended physiotherapy as recommended by her treating doctors. It is quite clear that in 2003[21] that the applicant attended treatment at EB Physiotherapy for treatment of the neck and lower back.[22]
[21] Page 465 of the Application
[22] Page 465 of the Application

General Practitioner’s Notes

Treating notes are annexed to the application outlining the treatment the applicant has received from her general practitioner. The notes indicate that regular consultations take place with Dr Papadakis and also Dr Ralec.

The notes reflect ongoing and significant complaint in respect of cervical spine as a primary area of treatment. There is however complaint in respect of thoracic and lumbar spine in the notes. The complaints in respect of these body parts are not as featured as much as the cervical spine though it is evident that they are there.
What appears apparent is that there is initial complaint in respect of the neck and then in mid-2005 there is complaint in respect of the lower back.[23] Further, at the same time there was complaint with respect to the thoracic spine, obviously in concert with the applicant experiencing cervical pain.[24] It is clear that at that stage Dr Papadakis was focusing on the applicant’s cervical injuries which he has diagnosed as significant cervical injury.
[23] Page 142 of the Application
[24] Page 142 of the Application

On 2 February 2005[25] the applicant explains that on 21 January 2005 she had moved her footrest, swivel chair from desk to desk about four times and has experienced lower back pain.

[25] page 173 of the Application

On 16 March 2005[26] the applicant complained of pain on both sides of the neck to the lower thoracic back.
[26] page 170 of the Application
On 5 May 2005[27] the applicant complained of stabbing pains in the mid to lower back.
[27] page 168 of the Application
In correspondence to Ms Wright, representative from Vero Insurance on 25 August 2005 no mention is made in respect of a lumbar and/or thoracic injury.
On 19 August 2005[28] the applicant complained of numbness in the upper back with a feeling of pressure in the lower back. The applicant explained she also felt stabbing marks through her back.
[28] Page150 of the Application
On 5 September 2005[29] the applicant complained of stiffness in the thoracic spine.
[29] Page142 of the Application
Dr Chowdhury is the applicant’s treating general practitioner from Blue Cross Medical Centre. The applicant consulted with Dr Chowdhury in July 2003 and he produced a short letter dated 4 July 2003.[30] In that correspondence Dr Chowdhury reports the applicant as being treated for muscular and ligamentous strain to cervical and thoraco-lumbar spine. He says that she has been advised to use ergonomic equipment in her office, including appropriate adjustable seating, wrist rest for the mouse and a keyboard and height adjustments for the screen.
[30] Page 113 of the Application
On the same date Dr Chowdhury refers the applicant for thermographic imaging of the cervical and thoraco-lumbar area after obtaining a history of chronic upper back and lower back pain not relieved with physiotherapy.

Dr Anica Vasic

Dr Vasic is a specialist at the pain management unit at St George Hospital. Dr Vasic treated the applicant after referral from Dr Maniam in June 2006. In respect of the history taken from the applicant, at that stage there was no report of pain or symptomatology arising from the thoracic and/or lumbar spine. This is despite a significant history taken from the author of that report.

Worksite Assessment

In August 2003, a worksite assessment took place of the applicant’s desk.[31] What is apparent as a result of that investigation that recommendations were made to raise the height of the chair and reinforce the use of a footrest for the applicant. The chair level was also increased to correct her typing posture. The monitor was also 10cm too low and was raised.
[31] Page 501 of the Application
A further assessment took place on 10 June 2004.[32] The ergonomic workstation assessment once again adjusted the applicant’s working conditions including the chair, raising the monitor and bringing it closer, moving the keyboard closer together with a telephone. Postural education was recommended to also be provided to the applicant to minimise musculoskeletal stress.
[32] Page 505 of the Application

Dr Chris Oates

Dr Oates is an occupational physician who prepared a report to the respondent insurer dated 25 April 2005.[33] The history taken by Dr Oates was that the applicant had been diagnosed with a musculoligamentous strain to the neck and thoracic spine.
[33] Page 511 of the Application

Dr Vijay Panjratan

Dr Panjratan has prepared two reports on behalf of the respondent, the first in time dated 2 October 2020 and the second dated 28 October 2020.
Dr Panjratan took a history of the onset of pain in respect of the cervical spine however does not have a history as to the onset of pain in the lumbar and/or thoracic spine. The applicant reported that she had complained that she had been treated by Dr Maniam and the back pain had always been there but was gradually getting worse especially on the right side. The applicant’s present condition was characterised by complaint in respect of the neck, mid and lower back together with tingling in the toes and sometimes an abnormality and sensation in the soles of the feet.
Dr Panjratan had the benefit of having all the investigations the applicant had undergone in order to prepare his report. On direct questioning, the applicant reported to Dr Panjratan that the pain in the thoracic and lumbar spine had been there since the onset of the problems to her neck.
Dr Panjratan diagnosed the applicant as having lumbar spondylosis and thoracic spondylosis. Dr Panjratan did not consider the applicant had sustained a consequential condition in her lumbar spine as a result of the injury to the cervical spine on 26 June 2003 nor does it relate to a separate frank incident at work. It was the doctor’s opinion that the applicant had developed lumbar spondylosis which would have developed irrespective of the incident on 26 June 2003.
In respect of the thoracic spine, Dr Panjratan did not agree with Dr Maniam’s opinion. The thoracic imaging showed spondylosis which Dr Panjratan opined would have developed irrespective of the incident on 26 June 2003. The lumbar and thoracic spondylosis could be characterised as a disease of gradual process. That is, the applicant had thoracic and lumbar spondylosis which was a disease of gradual onset, however there was no work-related aggravation of that condition. Accordingly, Dr Panjratan made no assessment of any impairment arising from work.
In Dr Panjratan’s second report dated 28 October 2020, it was Dr Panjratan’s opinion that the syrinx in the thoracic cord was significantly relevant as it is a progressive disorder causing paraesthesia in the upper and lower extremities. A syrinx may result in loss of feeling, weakness and stiffness in the back, shoulders and extremities.
Dr Panjratan also did not consider the nature and conditions of employment caused the onset of her disease or alternatively aggravated, accelerated or exacerbated the degenerative disease in her thoracic and/or lumbar spine. He considered that the symptomatology was caused by the syrinx which was a progressive disorder along with progressive age-related change and the nature of the work as a personal trainer. That is, the cervical and thoracic spine is more likely to be related to the syrinx and the lumbar spine towards the work of a personal trainer.
Dr Panjratan clearly identifies that there is some progressive physiologically age-related degenerative change in the applicant’s back and he clearly identifies that in his final report dated 28 October 2020.[34] He clearly identifies the syrinx and links it to the applicant’s symptomatology which she is experiencing which includes loss of feeling, paralysis, weakness and stiffness etc.
[34] Page 23 of the Reply
Dr Panjratan has given a detailed analysis of the applicant’s condition and considers the question of the nature and conditions of employment and forms the view that he does not consider the nature and conditions of the applicant’s employment aggravated the disease process.

Dr Davies

Dr Davies prepared a report at the request of the respondent’s solicitors dated 1 October 2004. The respondent did not rely on this report however is interesting to note, though I do not rely upon it that Dr Davies,[35] also observed the pre-existing thoracic syrinx and comments that it is constitutional in nature and not related to her employment. Dr Davies opined that the symptoms in the lower limb were related to this syrinx.
[35] Page 109 of the Reply

Dr Peter Isbister

Dr Peter Isbister prepared a report for the then respondent’s solicitors dated 29 July 2004. In the history taken in that report there is no mention of any pain in the lumbar and/or thoracic spine. Not surprisingly, Dr Isbister opined that the cervical condition was a work-related injury with work being a substantial contributing factor to the injury.

FINDINGS AND REASONS

Consideration

The claim made by the applicant is that she has suffered an injury to her cervical and thoracic spine arising out of the nature and conditions of her employment with the respondent.
After examining the medical material, I will now move on to consider the claims of injury to the thoracic and lumbar spine arising out of the nature and conditions of employment with the respondent.

Thoracic Spine

The opinion of Dr McGee-Collett in 2004, treating surgeon, identifies the idiopathic syrinx in the thoracic region as being unchanged from the pre-operative study. Crucially,
Dr McGee-Collett comments:
“I do not believe that any of Ms Zgouras’ symptoms arise in the syrinx but I concede that it is remotely possible.”
To my mind this represents an opinion that it is a mere possibility that the syrinx was causing some symptomatology though it was unlikely at that time.
Dr Maniam has treated the applicant for a significant period of time. Of crucial importance is the earlier reports of Dr Maniam do not identify thoracic and/or lumbar problems. Indeed, in a report of 20 June 2005 to the applicant’s solicitor there is no reference at all to these two body parts. Further the reports of 17 July 2008 from Dr Maniam[36] do not identify any reference to lower back pain or thoracic pain.
[36] Page 380 of the Application
This however causes me little concern as there is some reference to thoracic pain in the notes from the general practitioner as previously described. I also accept the opinion of Dr Maniam to the extent that there was focus on the symptomatology arising from cervical spine which necessitated significant and invasive surgery.
Dr Maniam appears to attribute the syrinx to trauma on the basis of a report of Dr Milder. That is, that in his report[37] “there is a small syrinx in the thoracic cord extending from T3 to T9 which the neurologist attributed to trauma ……The traumatic thoracic syrinx is now included in the determination of whole person impairment.”
[37] Page 393 of the Application
That is clearly not the opinion of Dr Milder on the face of his report. I cannot find any reference to an opinion being that the syrinx arose from employment. I am unable to find an opinion from any neurologist that the syrinx was caused by the applicant’s nature and conditions of employment.
Dr Maniam is of course entitled one view, to form his own opinion. He however does not explain in any meaningful way how the syrinx was caused by the nature and condition of the applicant’s employment or aggravated by it. It appears he finds there is a syrinx, says it is a traumatic syrinx and then attributes it obliquely to the nature and conditions of employment.
To my mind this is not an adequate explanation of the causation of the applicant’s pathology in her thoracic spine. It is not persuasive and does not meet the necessary standard for me to make a finding as sought by the applicant in respect of the syrinx arising from the nature and conditions of employment.
There is also medical evidence in relation to the syrinx that it can cause symptomatology as clearly identified by Dr Pandratan. The applicant’s medical case does not deal in any substance with the symptomatology that can be caused by a syrinx and it causes me some doubt as to the cause of the applicant symptomatology in her thoracic spine. The only reference appears to be that of Dr McGee-Collett in 2004 who finds it remotely possible that the syrinx was causing symptomatology. The applicant remained employed with the respondent for two years following this opinion and as such it does not assist me in any great way with a finding in respect of thoracic spine some 15 years after the applicant left the respondent’s employment.
I am therefore unable to make the order as sought as by the applicant as I’m not persuaded to the requisite level that she has suffered an injury to her thoracic spine arising out of or in the course of employment as required. The two primary reasons are firstly a failure to persuade me as to the cause of any thoracic symptomatology, secondly if it is caused by the syrinx to persuade me that the syrinx arose from the nature and conditions of employment

Lumbar spine

In respect of the lumbar spine, Dr Maniam’s opinion on causation is of some assistance. He identifies that there is a constitutional degenerative disease with protrusions and then goes on to say “occupation seems to be a substantial contributing factor.”[38] This was because of prolonged sitting causing axial loading.
[38] Page 408 of the Application
The respondent was critical that there is a lack of contemporaneous support in respect of complaints relating to the lumbar spine. I do not agree with this.
Dr Maniam reports complaint in respect of lumbar pain in his final report with complaints made as early as 14 December 2004. Having examined the general practitioner’s notes, it appears to me that there is contemporaneous complaint in respect of the lumbar spine. Further there is evidence of the applicant sought physiotherapy treatment in respect of her lumbar spine and underwent an MRI of the lumbar spine (presumably due to complaint) was employed with the respondent. This to my mind, is significant and represents significant symptomatology in the lumbar spine.
Dr Mahony, in his report, accepts the applicant symptomatology and finds that there has been a strain to the lower back which was a consequential condition. Dr Mahony however appears to have little understanding as to the nature of the applicants work or her workstation.
This onset of complaint in respect of the lumbar spine is at a time that the applicant is working with the respondent and she gives evidence in her statement of the onset of symptomatology arising from her work. She also complains to her general practitioner in respect of the workstation and obviously to her employer as there is at least two workplace assessments performed of her workstation.
Dr Pandratan doesn’t appear to have been provided with these complaints, nor does he engage with a thorough understanding of the difficulties that applicant experienced with her work station. It is on this basis that I prefer the opinion of Dr Maniam over Dr Pandratan in relation to the question of injury to the lumbar spine.
The claim in respect of the lumbar spine is not a claim that is “perfect”, the applicant is not required to meet that standard. There is competing medical evidence, there is a focus on the cervical spine and there is a failure to refer to lumbar symptomatology in the first two statements made by the applicant. Nevertheless, the standard the applicant must meet is the balance of probabilities, which is far less the perfect claim.
After considering all the evidence I am satisfied that the applicant has established an injurious process to the lumbar spine whilst in the course of her employment with the respondent.

SUMMARY

In the circumstances, the applicant has not established an injurious process in relation to both body parts and as such a referral to a Medical Assessor cannot be made as the applicant’s claim would fall below the threshold.

[2021] NSWPIC 122

18 May 2021