CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Jones v JLJ Training Services Pty Ltd [2024] NSWPIC 315	
		
APPLICANT:	Mark David Jones	
		
RESPONDENT:	JLJ Training Services Pty Ltd	
		
Member:	Lea Drake	
		
DATE OF DECISION:	17 June 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - The applicant sought a referral to a Medical Assessor in relation to whole person impairment; there was an objection in relation to late notice of claim and notice of injury; the explanation for delay was accepted; Held – injury was determined to have occurred; the application was referred for assessment of whole person impairment in relation to the applicant’s neck and scarring.
	
determinations made:	The Commission determines:
1.	The applicant suffered an injury to his neck on 20 September 2017 whilst in the employ of the respondent.
2.	As a consequence of that injury the applicant suffered a whole person impairment arising from the injury to his neck and consequent scarring.
The Commission orders:
3.	The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
Date of injury:	17 September 2017.
Body system: 	neck and scarring.
Method of assessment: whole person impairment.
Documents to be referred: 	
Application to Resolve a Dispute and attachments, Reply and attachments. 

STATEMENT OF REASONS
BACKGROUND
1.	Mark David Jones (the applicant) was employed by JLJ Training Services Pty Ltd (the respondent) from 1998 as a 3D draftsman. 
2.	On 20 September 2017 the applicant alleges that he suffered a neck and back injury collecting materials for his work at a site in Prestons. He alleges that he attempted to lift three boxes whilst unaware that each box contained very heavy materials and that he experienced immediate symptoms.
3.	The applicant’s pre-injury history is that of a very physically fit and active person despite being diagnosed with Ehlers Danlos Syndrome at age 50. Prior to diagnosis he was unaware of this condition.
4.	The applicant has had spinal surgery. He ceased work in May 2019 and alleges a present total incapacity for work and a significant whole person impairment arising from a neck injury and consequent scarring.
MATTERS IN DISPUTE
5.	Injury, notice of injury and notice of claim are in dispute.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION 
6.	Mr John Gaitanis of counsel, instructed by Whitelaw McDonald Lawyers appeared for the applicant. Mr Fraser Doak of counsel, instructed by Hicksons Lawyers, appeared for the respondent. 
7.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied.  I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them.  I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.  
EVIDENCE
8.	There was no oral evidence.
9.	There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any dispute before the Personal Injury Commission (Commission). 
10.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	Application to Resolve a Dispute (ARD) and attached documents;
(b)	Reply to ARD (Reply) and attached documents;
(c)	Application to Admit Late Documents (AALD) lodged on 28 February 2024 by the applicant’s lawyers;
(d)	submission lodged by applicant’s lawyers on 23 April 2024;
(e)	submission lodged by respondent’s lawyers on 10 May 2024, and
(f)	further submission lodged by applicant’s lawyers on 16 May 2024.
The applicant’s evidence
11.	Dr Hopgood, general surgeon (orthopaedics), an Independent Medical Examiner (IME) arranged by the applicant’s representatives, provided a report dated 4 October 2022. He stated:
“Diagnosis, Opinion and Prognosis
This patient suffered a severe traction injury to his cervical spine in the work related
accident of the 20 September 2017 and has been left, following two major long segment cervical decompression fusion operations, with gross peripheral radicular signs from his cervical spine injury noting he suffered from myelomalacia and transverse myelopathy on the MRI scan of his cervical spine of the 7 August 2019.
He is unlikely to see any further improvement in his neck and upper limb functions into
the future and remains totally unfit to contemplate a return to the workforce.
There is a relationship between the failed lift causing injury on the 20 September 2017 to his cervical spine and nerve roots.
The patient is now totally unfit to contemplate a return to employment in any category.
By way of reference to the Guides to the Evaluation of Permanent Impairment, AMA Edition 5, and the SIRA guidelines, this patient’s whole person impairment is assessed as follows:
He has a DRE Cervical Category IV impairment of his neck with a whole person impairment of 25% (page 392, table 15—5].
With three additional levels he accrues a further whole person impairment of 2% for each level and with a second major neurosurgical intervention to include a further level he accrues a further Whole person impairment of another 2%.
This patient therefore has a DRE Cervical Category IV impairment of his neck but with the additional surgical levels and additional surgery he has a Whole person impairment of 33%.
I believe that 25% of that impairment should be subtracted due to pre-existent changes
leaving him with a whole person impairment of 25%.
With compromise of all activities of daily living he accrues a further whole person
impairment of 3% and with post—operative radicula: symptoms he accrues a further whole person impairment of 3%.
Using the Combined Values Chart this patient therefore has an overall Whole person
impairment of 29%.
With scarring of his neck he accrues a further whole person impairment of 3% and therefore has an overall whole person impairment of 31%.
I believe this patient is dealing with the distress and anxiety of his surgery extremely well.
The patient’s prognosis must remain guarded for with significant forces now operating
above C2 and below C6 he is at extreme risk of rapid deterioration in the function of these two intervertebral disc levels and should make every attempt to avoid further injury to his cervical spine, that is to say the wearing of a cervical collar when travelling in a motor vehicle would be a wise option to avoid injury from any, even minor, whiplash event.”
12.	The applicant also relied on the report of Dr Harrington, orthopaedic surgeon and IME arranged by the respondent’s representatives, who provided a report dated 1 May 2023:
“DIAGNOSIS
Mr Jones had a sudden neck and bilateral shoulder pain when moving boxes during the course of employment on 20 September 2017.
He was diagnosed and investigated for a combination of cervical myelopathy, a traction injury to his shoulders and bilateral carpal tunnel syndrome.
The history of treatment has been outlined. Despite surgical intervention and a history of conservative treatments, nothing much has really helped.”
Referring to the complexity of his medical background and treatments Dr Harrington stated in relation to diagnosis that he was not really sure what was going on.  However he concluded:
“I consider Mr Jones to have injured his neck at work on 20 September 2017. He could have aggravated the pre-existing changes at C3/4 however this does not really explain the need for an extensive fusion from C3 to C6.
Given that his symptoms never completely settled down, we could argue that the injury in 2017 was the catalyst for his neck problems which became increasingly problematic in 2019 when the family relocated from Sydney to Terrigal.
….
His prognosis is poor.”
(my emphasis)

13.	After a review and discussion of Dr Hopgood’s whole person impairment assessment of 33%, Dr Harrington provided a whole person impairment assessment of 31%.
14.	The applicant notes the clinical notes of Dr Eccles dated 27 November 2017 as providing independent support, being a notation of right cervical radiculopathy, for the existence of the injury to his neck which he alleges was caused on 20 September 2017.
15.	Mr Morton, from Ken’s Commercial Kitchens, the business at which the applicant alleges he sustained his injury, provides independent support for the existence of the events which the applicant alleges caused the injury to his neck on 20 September 2017.
16.	In answer to the respondent’s defence pursuant to ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998, the applicant relies on the material set out in his statement to establish that he erred when reporting his injuries because he had understood that his reported  injuries included his neck as well.  He relies on ignorance as a satisfactory explanation entitling him to have his compensation claim heard.
The respondent’s evidence
17.	Dr Harrington provided three reports. They are dated 1 May 2023, 21 June 2023 and 
7 August 2023. The respondent submitted:
“11. The respondent also relies on the opinion of Dr Harrington, set out in his 3 reports dated 1 May 2023, 21 June 2023 and 7 August 2023.5 In his first report Dr Harrington relied on the history given to him that the applicant had experienced pain in his neck,
both shoulders and arms when moving boxes on 29 September 2017. The doctor noted that the applicant attended his GP in February 2018 and following investigations was diagnosed with a torn left rotator cuff. Later in 2018 the applicant was also diagnosed to have carpal tunnel syndrome.
12. Dr Harrington noted that after relocating to the Central Coast the applicant
experienced increasing problems with is neck and was sent for a CT scan which
showed changes at C3/4 and other age-related facet changes.6 After further
investigations the applicant underwent surgery to the cervical spine in September
2019 involving a decompression and fusion of levels C3 to C6. The applicant
underwent a revision of the surgery in November 2019, when the fusion was
extended to C2.
13. Based on the history given to him Dr Harrington considered the applicant could
have suffered an aggravation of underlying pathology in his cervical spine in the
Incident as described.
14. In the second report Dr Harrington stated that ‘based on Mr Jones’ history’ it was
likely the applicant suffered an aggravation of pre-existing asymptomatic pathology
in his cervical spine in the Incident. However, the doctor commented that there was
a possibility that the scans were ‘retrofitted’ to the Incident. In other words, once
the pathology in the applicant’s cervical spine had been identified, the Incident in
September 2017 was retrospectively considered to be the cause.
15. In his third report Dr Harrington noted the entries in the clinical records of Dr Eccles
recorded about 6 to 8 weeks after the alleged date of injury which refer to ‘C6
cervical radiculopathy’ and to ‘right arm neuropathy.’ The doctor stated that as the
applicant had been diagnosed with carpal tunnel syndrome that it was difficult to
know whether the symptoms were related to that condition or to a true radiculopathy. Dr Harrington repeated his view that ‘a lot of these cases have a retrograde diagnosis…’ and that it is hard to know whether the events at work were the main or substantial contributing factor to alleged injury. Dr Harrington stated that based on the history there was likely to be an historical connection rather than a pathological connection. By that the doctor means that the Incident was not the cause of the pathology but that based on the history of the onset of symptoms it might be concluded that there had been a aggravation of the underlying pathology.”
The applicant’s submissions
18.	The applicant asks that the Commission rely on the explanation for  delay provided by the applicant i.e. ignorance and mistake, and allow his claim to proceed.
19.	The Commission is entitled to rely on the evidence of the applicant and the findings of 
Dr Hopgood and Dr Harrington and the applicant asks that the Commission does so.
20.	The applicant asks that the Commission remit the quantum of the applicant’s claim for whole person impairment to the President for referral to an independent Medical Assessor.
The respondent’s submissions
21.	The respondent’s provided a forensic examination of the applicant’s medical history and inconsistencies between the applicant’s evidence and history and the clinical notes of his treating doctors. These are detailed in the respondent’s submissions of 
10 May 2024.
22.	 The respondent relied in particular on:
(a)	the description of injury provided by the applicant in his claim form dated 
24 April 2021, in which he referred to feeling a strain in both arms, contrasted to the note taken by Dr Hopgood that the applicant wrenched his neck severely;
(b)	the opinion expressed by Dr Harrington that it was possible that it was a retrospective consideration that led to the conclusion that the applicant had suffered in the alleged incident an aggravation of pre-existing asymptomatic pathology in his cervical spine;
(c)	Dr Williams notes indicate that the applicant saw him two weeks after the incident and there is no reference to an injury lifting boxes. This is contrary to the applicant’s evidence of having made a complaint to the doctor of neck pain;
(d)	Dr Eccles notes of 30 October 2017 do not record a complaint of neck pain or the alleged injury, and
(e)	although the applicant made a complaint to Dr Eccles on 27 November 2017 of right thumb pain with a notation of “rapid onset since heavy lifting one month ago” this would have placed the injury as occurring in October 2017.
23.	The respondent submits that there is no plausible explanation for the absence of recorded complaints of injury to or symptoms specific to the applicant’s neck in his general practitioner records.
24.	The history assumed by Dr Hopgood and Dr Harrington of severe and debilitating neck symptoms following the incident is not supported by the contemporaneous evidence. The respondent submits that this claim is an attempt by the applicant to provide a hindsight analysis to the identified pathology and “In this case that link is so tenuous that it cannot sustain such a finding given the complete absence of a contemporaneous history of any injury to the neck”.
25.	The respondent rejects any reliance on the evidence of Mr Morgan as supporting an allegation of injury to the neck. Reference to a “twinge” does not establish that the applicant suffered a traction injury to his neck at that time. At its highest the respondent submits that the evidence does no more than refer to minor and transient pain. It is inconsistent with a history of immediate pain in the neck, shoulders and upper limbs relied upon by the applicant.
26.	In relation to the applicant’s failure to give notice of injury and notice of claim the respondent submitted: 
“In relation to the issues of notice of injury and notice of claim under section 254 and 261 of the 1998 Act, the applicant’s submission relies on the paragraphs in his statement referred to in paragraph 14 of his submissions. However, the content of those paragraphs does not properly address the issue of the failure to give notice of claim required by section 254. There is no evidence addressing when and in what circumstances the applicant gave notice of the injury to the respondent. If the applicant’s evidence that he was aware that he had suffered an injury to his neck on 
20 September 2017 is accepted (as it must necessarily be if he is to succeed in the claim) then the absence of evidence addressing the matters referred to in subsection 254(3) precludes the applicant from recovering lump sum compensation.”
CONSIDERATION
27.	In relation to the late notice of injury and notice of claim, the applicant states that he was mistaken in that he believed his claim already included a cervical spine injury. That is his explanation, and I am not persuaded that there is any reason to reject it.
28.	The respondent made no application to cross-examine the applicant and, in the absence of any persuasive contrary material or concession, I have accepted his explanation.
29.	I am not persuaded that the inconsistencies and absence of notations of complaint in the clinical notes of the treating general practitioners relied upon by the respondent are sufficient to reject the uncontested evidence of the applicant in relation to the occurrence of the injury and the symptoms which ensued. In the absence of any persuasive contrary material, I am persuaded to accept his explanation regarding the information he provided to his treating doctors and the IMEs.
30.	Relying on the opinions provided by Dr Hopgood and Dr Harrington I find the applicant injured his neck on 17 October 2017 and, following consequent surgery, suffered scarring.
SUMMARY
31.	For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.