Osborn v Woolworths

Clinical: Pins and needles arm bilaterally.

Findings: There is monow (sic) narrowing of the C6/7 disc space with minor osteophyte formation posteriorly. The intervertebral foramina are reasonably well preserved. No wedged vertebral bodies were identified.[5]

1. The LMC notes record that Ms Osborn consulted with Dr Olaiya on 19 October 2020, complaining of pain in her shoulders. He proposed diagnostic imaging with cortisone injections if indicated.[6] Ms Osborn said that following this she had an ultrasound of her shoulders. In December 2020 she had cortisone injections in both shoulders. She said that the injection in her right shoulder cured her pain and it never returned. She said that the injection in her left shoulder worked at first, but the pain returned. She said that she had further injections in her left shoulder in March 2021 and May 2021, after which the pain resolved. She said that the injections fixed her pins and needles.
2. Ms Osborn said that on 22 October 2022, when she was operating a checkout at Woolworths Port Lincoln, a customer had placed a bag of dog food weighing between 10 to 15 kgs on the conveyor belt and that as she lifted and scanned it, she felt pain in her back just below her shoulder blades. She said that she reported the injury to her manager. She said that she finished her shift, and the following day she began to feel occasional numbness in her arms. She said that a few days later she saw her GP and had scans that did not show anything abnormal.
3. The LMC notes record that Ms Osborn consulted with Dr Ekujumi on 24 October 2022, complaining of soreness between her shoulder blades with pins and needles in both of her hands following lifting a 15kg object at work.[7]
4. Ms Osborn said that following this she had about four or five sessions of physiotherapy that were paid for by Woolworths. She said that the physiotherapy went well and she had no time off work, did not require modified duties, and continued working at both Woolworths Port Lincoln and the Port Lincoln Hotel. She said that by Christmas 2022, she had made a complete recovery and that in the busy period before Christmas she had no issues.
5. Ms Osborn said that on 2 February 2023, when she was operating a checkout at Woolworths Port Lincoln, a customer had placed a 3 litre container of milk on a checkout and that as she grabbed it with her left hand to scan it, she twisted and felt a sharp pain on the left side of her upper back and neck in the area at the top of her shoulder blades. She said that she felt pins and needles in her left hand, which got worse as she lowered her left arm.
6. She said that the pain was different to that which she had experienced in October 2022. She said that it was sharper, more intense, and felt more like a stabbing pain. She said that she immediately told her manager, but was told that as it was only a half an hour until her shift was to end that she should keep going. She said that she was in "heaps of pain", and that after finishing her shift, when she was driving home, she could not put any pressure on her back. She said that she had to hunch over her steering wheel and steer with her right arm. She said that she was not rostered at Woolworths Port Lincoln for the next few days, and that she contacted the Port Lincoln Hotel and advised that she had injured herself and was told that she could not return there until she was given a full clearance.
7. She said that when she returned to work a few days later, she told her manager what had occurred and was allocated self-service checkouts for the next two shifts, before resuming her normal duties. She said that she reduced her shifts from between 18 to 36 hours a week down to two 5 hour shifts.
8. She said that if she twisted or moved the wrong way, she would experience pain shooting from her upper back, level with the top of her shoulder blades down the left side of her spine and that she had constant pins and needles in her left arm. She said that about a week after the incident she went to a physiotherapist, Lennie Shore. She said that the physiotherapy gave her some relief, but the pain and the pins and needles always returned.
9. Mr Shore's clinical notes record that Ms Osborn came to see him on 9 February 2023, and that she told him that she had an acute left sided mid back spasm when "putting a three litre milk container". His notes record that on examination he found that she was tender over the left rhomboid.[8] The pain chart that Ms Osborn completed identified the source of pain as just left of the spine towards the bottom of her left shoulder. The note of this consultation makes no reference to pins and needles in Ms Osborn's left arm.
10. On 15 February 2023, Ms Osborn again saw Mr Shore. His notes record that she complained of soreness with rotation bilaterally and the bending is also sore, and that on examination he found tenderness over the left rhomboid. The pain chart that she completed was the same as before.[9] Again, the note of this consultation makes no reference to pins and needles in Ms Osborn's left arm.
11. Ms Osborn' s next appointment was with Mr Shore was on 20 February 2023. His notes record that she complained of continuing soreness and that her symptoms now extended into her left arm including pain and numbness and tingling sensations.[10]
12. Ms Osborn said that eventually she decided to see her GP. The LMC notes reveal that on 21 February 2023, Ms Osborn consulted with Dr Ashby with a history of "recurrent joint pain same as last time".[11] Ms Osborn said that Dr Ashby did not seem interested and put her issues down to a flare up of her earlier injury and told her to keep having physiotherapy.
13. On 28 February 2023, Ms Osborn again saw Mr Shore. His notes record that she had improved a fair bit since the last appointment and that she had been applying Voltaren which she thought was helping. He noted that she complained of left upper limb numbness that was poorly defined in terms of region and the onset of aggravating factors. The pain chart that Ms Osborn completed identified the source of pain just left of the spine towards the bottom of her left shoulder and unlike the earlier charts it now highlighted the whole of her left arm.[12] Ms Osborn accepted that the pain chart was accurate.[13]
14. At a consultation with Mr Shore on 17 March 2023, Ms Osborn reported continued soreness in her left trapezius.[14] About a week later, on 22 March 2023, Ms Osborn complained to Mr Shore that her back was really sore on the weekend at work to the point that she was in tears and was sent home.[15]
15. Ms Osborn said that although over the next four to five weeks her symptoms were not getting any better, she wanted to get back to work at the Port Lincoln Hotel, because she needed the money. She said that she saw Dr Olaiya, and he gave her a clearance letter. She said that she only worked one shift there for about two or three hours and could not continue.
16. She said that she continued to consult with doctors at the LMC, but they did not seem to be taking her seriously. She said that she discussed this with Mr Shore, and he recommended that she see another doctor. She said that in around May 2023, she started seeing Dr Fadzli from the Investigator Clinic (IC).
17. The IC notes reveal that Ms Osborn first consulted with Dr Fadzli on 9 May 2023. The notes record that at that consultation Ms Osborn said that she injured herself in October 2022, when she picked up a 10kg load at waist level, that she managed with physio with good improvement.[16] The notes then refer to March 2023, and state: "Nil known triggers. Exacerbation of left upper back pain. Location left sided back and radiates up, described as sharp. Paraesthesia on left arm, every 2nd day lasting all days."[17]
18. The IC notes reveal that Ms Osborn again consulted with Dr Fadzli on 12 May 2023, and that on this occasion she gave the history of what appears to be the incident of 2 February 2023. The notes record that "In March was shifting 3L milk at waist level, felt sudden onset of pain, and gradual numbness and loss of sensation over the last 2 months. No other injuries."[18]
19. Ms Osborn said that at around this time, she almost constantly had pins and needles in her left arm and was heavily favouring her right arm.
20. In the meantime, Ms Osborne was continuing to consult with doctors at the LMC. The notes of the LMC indicate that on 27 April 2023, she saw Dr Ekujumi complaining that she had a sore mid back for two months, mainly on he left towards her rib and associated left arm and elbow pain and no neck pain. The examination notes indicate that her left arm had normal bulk, power, tone and sensation.[19]
21. The LMC notes reveal that Ms Osborn again consulted with Dr Ekujumi on 16 May 2023. The notes record that the purpose of the visit was a request for a WorkCover certificate.[20] Dr Ekujumi provided that certificate. [21] Amongst other things, the certificate stated that Dr Ekujumi examined Ms Osborn on 16 May 2023, that the stated cause of her injury was trunk twisting while lifting a 15 KG object at work on 22 October 2022, and that his diagnosis was scapulo costal syndrome, with a suggested treatment regime involving Mr Shore. The certificate makes no mention of the 2 February 2023 incident.
22. Dr Ekujumi's notes of 25 May 2025, record: "Peripheral neuropathy screening thus far has been negative. Hailey attends physio and had acupuncture done which has improved the left arm pain slightly. However on Monday she develops right elbow pain with numbness of the forearm. Nil known trauma however at work she has been using predominantly right arm."[22]
23. Ms Osborn said that despite Dr Ekujumi's provision of a WorkCover certificate, she was still not happy with him and decided to move permanently to Dr Fadzil.
24. On 31 May 2023, Ms Osborn presented to Dr Fadzli for review and reported that she had ongoing paraesthesia of both arms. This culminated in Dr Fadzil referring Ms Osborn for an MRI which was conducted on 28 June 2023. The report following the MRI included the following:

C6/7 Circumferential bulge with osteophyte/disc complex extending to bilateral foramina. Mild central moderate bilateral left>right foraminal stenosis with probable neural compromise.

...

Comment C6/7 foraminal narrowing and mild central stenosis. [23]

1. In her oral evidence, Ms Osborn confirmed that the first time she experienced right arm symptoms following the incident in February 2023, was in May 2023.[24]
2. On 31 May 2023, Ms Osborn obtained a Work Capacity certificate from Dr Fadzli.[25] Amongst other things, it stated that he examined Ms Osborn on 9 May 2023, that the stated cause of her injury lifting a three litre milk bottle and twisting her back at work on 9 February 2023, that his diagnosis was thoracic level back pain, with a suggested treatment regime involving Mr Shore. The certificate makes no mention of the 22 October 2022 incident.
3. On 10 July 2023, Dr Fadzli referred Ms Osborn to the neurosurgeon, Dr Marguerite Harding. The letter of referral included the following:

Thank you for seeing Hauley, a 38 year old lady who has a 2 months history of bilateral upper limbs radiculopathy which occurred at workplace (Woolworths team member). Hailey initially had an injury in October 2022, back pain after lifting 10 kgs load at waist level. Since then, she has managed with physiotherapy with good outcome. However in February 2023, while at work, she shifted another object weighing approximately 5kgs at waist level across the check out counter and suddenly experiencing left sided back pain with persisting paraesthesia.[26]

1. On the same day, Dr Fadzil issued Ms Osborn with a further Work Capacity Certificate.[27] It states that he had examined Ms Osborn on 10 July 2023, that the stated cause of her injury was two separate work incidents, one in October 2022, the other in February 2023; that his diagnosis was C6-7 bulging disc causing foraminal stenosis bilaterally; with a suggested treatment regime involving physiotherapy, and the opinion of a spinal surgeon. This was the first certificate that refers to both the October 2022 and February 2023 incidents.
2. At the request of Woolworths, Ms Osborn was examined by the neurosurgeon, Dr Paul Carney on 2 August 2023.
3. In a report dated 2 August 2023,[28] Dr Carney set out the history that he obtained from Ms Osborn. He wrote:

She says she had two incidents, the first being October 2022. She says her accident was reported to her supervisor Cindy Leech but nothing was done until she saw her manager. She says she injured her lower back in the first incident Her local doctor was Dr Azim.

She says at the time of the injury of 02/02/2023 she experienced sharp and shooting pain down her left side and within a few days numbness in her left arm, pain in the arm and pain in the mid-back. She says she has persisting pain in the back and numbness in the arm and elbow but in detailed history the pain had gone from the left arm and now persists in the right arm.

...She was told to cease using her left arm and to use her right arm in March or April of this year. She said then her right arm then began to give trouble.[29]

1. Dr Carney's findings on examination revealed a normal range of cervical movements with some complaint of discomfort at C7 on full extension. He said that extension manoeuvres did not cause any increase in symptoms and did not provoke any symptoms in either arm. He said that sensory testing gave a glove distribution of impairment affecting all modalities in her right arm, and that she claimed not to be able to feel vibration at her wrist even with string stimulus.
2. Following the referral from Dr Fadzli, Ms Osborn saw Dr Harding in mid-August 2023. In a report dated 30 August 2023,[30] Dr Harding recorded that Ms Osborn reported to her that she had experienced a sharp pain in her back following the milk carton incident, initially experiencing thoracic pain and later arm symptoms, initially on the left but later more so on the right. She recorded that on examination Ms Osborn had sensory change on the right over the C7 and C8 dermatomes. She described the MRI scan as demonstrating "a large central cervical disc herniation at C6/7 with central canal stenosis...[with] bilateral foraminal narrowing effecting the left more than the right". She stated that Ms Osborn "demonstrated a large central disc herniation at C7/7 with central canal stenosis" and she suggested a cervical nerve root block cortisone injection for diagnosis and therapeutic purposes, with the later possibility of neck surgery.
3. Ms Osborn said that she had the cortisone injection that Dr Harding had suggested and that it gave her relief for a few days before the symptoms came back. She said that the symptoms in her right arm were worse. She said that she went back to Dr Harding and told her that the cortisone injection had not worked and they discussed surgery. She said that she agreed to undergo the surgery and Dr Harding said that she would apply for approval of the surgery.
4. On 11 October 2023, Dr Harding submitted a request to Woolworths for approval to undertake a C6/7 anterior cervical decompression and fusion for Ms Osborn. She followed this up with a letter to Woolworths dated 31 October 2023,[31] wherein she stated that Ms Osborn was suffering from a cervical disc osteophyte with nerve irritation, having presented with bilateral arm symptoms originally on the left, but having progressed to the right, with severe cervical and thoracic pain. She stated that an MRI demonstrated "a large disc herniation at C5/7" and that her CT scan "showed large osteophytes at C6/7".[32]
5. On about 15 November 2023, Woolworths formally rejected Mr Osborn's claim for compensation, and as a result, Dr Harding referred Ms Osborn to the public health system.
6. The claim that Woolworths rejected identified that date of injury as being 2 February 2023.
7. On 22 November 2023, Ms Osborn filed an application for review challenging the rejection of her claim. Included in the application was the following:

My life was enjoyable before Feb 2023 injury I was able to play with my son. And I was able to sleep in the same bed as my partner I'm now unable to do family things like 4WD, fishing in boat, long walks playing with my sone or enjoy alone time with partner as my back is always hurting I now have to sleep on a recliner sitting up.[33]

1. As with all applications for review, it contained a declaration by Ms Osborn that all of the information provided in the application was true and correct.
2. As the matter progressed to a hearing, an application was made to enlarge the issues in dispute to include a claim based upon an alleged date of injury of 22 October 2022.
3. Pursuant to s 30(1)(b) of the Act, a claim for compensation must be made during the prescribed period. Section 30(10) provides that this "means the period of 6 months commencing on the day on which the entitlement to make the claim arises". There is an issue as to whether in this case Ms Osborn did in fact make a claim in respect of this injury within the prescribed period. But it is contended that even if it were otherwise, the exculpatory provisions of s 30(3) of the Act apply.
4. Section 30(3)(b) excuses a failure to make a claim within the prescribed time if: "the proper determination of the claim has not been substantially prejudiced" or "if the failure to make the claim within that period was occasioned by ignorance of the claimant, mistake or absence from the State, or other reasonable cause".
5. Woolworths concede that the proper determination of the claim has not been substantially prejudiced by any delay. I therefore do not need to take this issue any further. To the extent that it is necessary, I grant Ms Osborn an extension of time within which to prosecute her claim based upon an injury date of 22 October 2022.
6. Returning to the narrative, Ms Osborn said that in late 2023, she travelled from Port Lincoln to the Flinders Medical Centre and was told that she would be placed on a waiting list for surgery. This is confirmed by the notes of the Flinders Medical Centre. They record that a Dr Nowicki examined Ms Osborn on 12 December 2023.[34] They record a complaint of right arm radicular pain since February. Ms Osborn agreed that that date was incorrect.[35] She gave the impression that there was no physical examination undertaken by Dr Nowicki. She said: "We just talked".[36]
7. On 11 January 2024, Ms Osborn was examined by the occupational physician, Dr John Meegan. He took a history of continued back pain and constant right arm symptoms. He wrote:

She is complaining of thoracic pain and she says there is pain with overuse of numbness in the right arm radiating to all the fingers. She is not complaining of neck pain. She confirmed details of the history with her saying she had the initial thoracic injury in July 2022 at Woolworths with symptoms settling but never resolving completely and with aggravation of her thoracic pain and onset of the right arm symptoms with the further incident in February 2023. She says she had no prior history of similar symptoms.[37]

1. Having noted that Dr Carney found some non-organic signs, Dr Meegan recorded that on examination he found no non-organic signs.[38] He also noted that Dr Harding had considered that Ms Osborn had sensory changes on the right over her C7 and C8 dermatomes but stated that they were not evident when he examined her.
2. Ms Osborn said that in mid-April 2024, she was contacted by the Flinders Medical Centre and was advised to have an updated MRI scan, which she did on 18 April 2024. She said that apart from being asked whether her medications had changed, all that was discussed was whether she knew the effects of the surgery.[39]
3. The radiologist's report of that MRI scan relevantly records:

C6/7 Broad based disc/osteophyte complex. Mild central canal stenosis. Moderate left and mild right foraminal narrowing with potential irritation of the exiting C7 nerve roots bilaterally left more than right. [40]

1. Ms Osborn said that she was then contacted by the Flinders Medical Centre and was advised that she was booked for surgery on 20 May 2024.
2. On 13 May 2024, Ms Osborn completed a Patient Health Questionnaire in connection with her upcoming admission.[41] In response to the question: "Do you have pain?" she ticked "Long Term" and wrote underneath "(L) arm and neck".
3. When asked about this, Ms Osborn claimed that what looked to be depicted as (L) was in fact the number "1"[42]. It was pointed out to her that when she wrote her phone number that included the number 1, what she wrote looked like a "1" and not an "L". It was also pointed out to her that elsewhere in the Questionnaire, in a section that asked for details of previous operations, she used a capital L that looked the same as the "(L)" that she used in connection with her answer to the pain question. When it was again suggested that the "(L)" was an uppercase L she respond by saying: "I don't believe so. I actually, at the time of writing this, I had family with me that actually watched me write this."[43]
4. Ms Osborn underwent neck surgery on 20 May 2024 as planned. She said that following the surgery she remained in hospital for four days and had about six weeks off work. She said that after the surgery, the constant pain was gone. She said that she still gets some pins and needles in her right arm from the elbow down, but before the surgery, the pins and needles were all the way up her arms. She said that after a period of light duties she was given a full clearance in July 2024 to return to work with no restrictions. In her oral evidence she said:

So my neck pain has gone considerably. I'm able to do a lot more things around the home than before. Before the surgery I wasn't able to stand for long periods to do regular house chores. Now I'm able to vacuum, lift the washing basket, cook tea, do dishes, I'm able to do things with my kids better than what I could before. My work, I have had my contract upgraded to around, I think, 29 hours a week, and I'm doing a lot more hours at work.[44]

1. On 31 January 2025, Ms Osborn was examined by the occupational physician, Dr Roberto D'Onise.
2. Dr D'Onise recorded Ms Osborn reporting two work injuries. The first was in October 2022, when she was moving a 10kg bag of pet food across a checkout counter causing a sharp pain between the lower shoulder blades. The second was in February 2023, when she was lifting a 3-litre milk bottle when she experienced a sharp pinch between her shoulder blades and numbness in her left arm that commenced two hours later that progressed into her hand over a week. He noted that by May 2023, her symptoms had shifted from her left arm to her right arm.
3. On examination, he found no obvious abnormality in her left and right arms. He did, however, find a slightly depressed right tricep when compared to the left, albeit that sensation and power were intact.
4. He recorded a history of prior bursitis of both of Ms Osborn's shoulders between July and October 2020 that had been resolved with injections. I take from this, that Ms Osborn did not provide him with any other prior history of issues with her arms.
5. It seems that the relevant narrative actually commenced about two years earlier than Ms Osborn disclosed. In cross examination, Ms Osborn confirmed that she was formerly a patient of Dr Valentincic, when she lived in Adelaide. Tendered in evidence were some patient records detaling various consultations that Ms Osborn had with him.[45] They reveal that on Friday, 23 February 2018, Ms Osborn complained to Dr Valentincic that she had had neck pain for the preceding two days with "no specific injury". Amongst other things, the recorded findings on examination that day included: "spasm and tender right cervical paraspinal and trapezius muscles". The notes record that on Wednesday, 28 February 2018, Ms Osborn complained of right sided neck pain with pain down her right arm and parasthesia in her right arm and hand. The recorded findings on examination that day included "tender cervical spine" and "spasm and tender right trapezius and right cervical parspinal muscle". The notes record a proposed referral for a CT scan.
6. The scan took place on 2 March 2018 and the radiologist's report, relevantly recorded as follows

Clinical details: Right sided neck pain with right radiculopathy.

...

C6/7 No disc protrusion. There is minor left uncovertebral joint osteophyte. No central or foraminal stenosis.

...

Comment: The cause of the patients (sic) presentation is uncertain. No cause for right side radiculopathy is seen. [46]

1. On 7 March 2018, Ms Osborn complained to Dr Valentincic of persistent right sided neck pain.
2. When Ms Osborn was asked about this, and her consultations with Dr Valentincic about her neck and pins and needles, she claimed to have no recollection. She also claimed that she did not recall having a CT scan at that time.[47] She confirmed that she made no mention of any of this to any of the doctors who subsequently examined her in connection with the injuries that are the subject of this dispute.
3. Ms Osborn was then taken to an entry for 7 May 2018, that recorded a complaint of mid to lower thoracic back pain and tenderness between T5 and L2. The notes indicate that she was referred for X-rays and the notes of a consultation of 11 May 2018 record that the X-ray showed sacralisation of the L5.
4. Ms Osborn said that she could recall having issues with her back at that time, but said that she could not recall having that X-ray.[48]

1. Dr Carney did not consider that the history that Ms Osborn provided to him was consistent with a specific spinal injury or a nerve root injury. He thought that his examination findings were "strongly non-organic". He did not consider that the imaging was consistent with her pattern of symptoms, they being widespread. He described the imaging as providing no clear evidence of a C7 radiculopathy.
2. Dr Carney thought that Ms Osborn suffered no more than a muscle strain and he cautioned against any operative treatment.
3. In his oral evidence, Dr Carney said that when he examined Ms Osborn, she made no complaint of neck pain. He said that when he palpated her spinal muscles, she complained of tenderness even with very light touching. He said that he tested her deep tendon reflexes and they were intact. He explained that if there is a significant radiculopathy, it would be expected that there would be some depression of a reflex.
4. As for the radiological findings here was this exchange:

Mr Austin: And then, when you say the imaging is not consistent with a pattern of symptoms, can you just again explain why you hold that opinion?

Dr Carney: Well, the imaging showed that there was some foraminal narrowing on the left side at C6/7 level, which if it caused a radiculopathy at all, it would be in the left arm in a typically C7 distribution. I didn't think it showed enough change to warrant a diagnosis of C7 radiculopathy, on that basis anyway. It did not show any narrowing on the right.

Mr Austin: In relation to the changes seen on the MRI at the C6 level, ... Now, it's your opinion that they represent degenerative changes and are probably long-standing?

Dr Carney: Yes, it is.

Mr Austin: Are they consistent with any acute event on 2 February 2023?

Dr Carney: No.

Mr Austin: Or 22 October 2022?

Dr Carney: No.

1. Dr Carney was provided with Dr Harding's reports and I think it would be fair to say that Dr Carney was critical of what he regarded as a lack of documented findings on examination supporting a diagnosis of radiculopathy. He was also of the opinion that the imaging results were at best equivocal as to the presence of a radiculopathy, that inadequate consideration was given to the fact that Ms Osborn was exhibiting signs of abnormal illness behaviour, and that there needed to be much stronger evidence of radiculopathy before neck fusion surgery could be contemplated. He pointed out that although there were rare, the adverse consequences of such surgery included quadriplegia and death.
2. When asked what was to be made of Ms Osborn's apparent improvement following surgery, he said:

That's a complicated question. If someone has a functional illness, and you perform a dramatic procedure, then they may feel better at least for a while. You can do a cervical fusion on someone with minor degenerative changes in the neck, and it won't make any difference to them. It won't make them worse. It will actually, because they've got a fused level, but I think this is a placebo response to surgery almost certainly.[49]

1. Dr Harding was called for the sole purpose of establishing that the neck surgery that Ms Osborn underwent was reasonably required. She was not presented as an expert to establish that the surgery was needed as a consequence of a work injury. That said, Dr Harding accepted that she relied upon the accuracy of the history that she obtained from Ms Osborn, that she was not made aware of the any issues with her neck or pins and needles in her arms prior to 2022.
2. As to the need for the surgery, Dr Harding said that she obtained different findings on examination to Dr Carney and that she found sensory changes on the right compared to the left. She thought that this, when added to the findings shown on the MRI scan, indicated a radiculopathy that warranted surgery. She said that the notes of her findings on examination were contained in her report and that there were no additional notes.[50] The recorded findings on examination contained in her report were as follows:

On examination, Hailey had a sensory change on the right over the C7 and C8 dermatomes. Her reflexes were equal. She had no upper neuron signs and no weakness.[51]

1. Dr Olaiya was called to verify the notes of the LMC. His evidence did not otherwise add in any significant way to the resolution of this case and I have no need to discuss it further.

1. In supporting Ms Osborn's claim Dr D'Onise said:

In my opinion, work has been a significant contributing cause. There are underlying degenerative changes in the cervical spine from a history of previously asymptomatic. Early on there were in October 2022 with heavy lifting there was thoracic pain. It had generally subsided before recurred in February 2023 doing lighter lifting., but in my opinion, still physically demanding because of the extended reach away from the body with her right arm. This episode resulted in a recurrence of pain as well as an onset of new nerve symptoms in the upper limbs also. It is probable that the thoracic symptoms in 2022 and February 2023 she was experiencing was referred pain from the lower cervical spine C6/7 that was originally injured in February 2022 (sic) [52] lifting the pet food and then subsequently aggravated when lifting again in February 2023.[53]

1. Dr D'Onise agreed that it was important in reaching his conclusion about the diagnosis that Ms Osborn experienced immediate numbness in her left arm starting at the elbow within two hours of the incident.[54]
2. When it was put to Dr D'Onise that the reported numbness in Ms Osborn's left arm did not commence until four weeks after the February 2023 incident, he said that this would not change his opinion.[55]
3. Dr D'Onise explained why he thought that Ms Osborn had radiculopathy as follows:

Well, first of all, the radiological - and I'm, I guess, referencing the IAG guidelines, how we define radiculopathy now, but she had radiological signs. She had symptoms which were - if I can check my notes. The nerve symptoms initially in the left arm are numbness, and similar symptoms in the right, and, also, when I saw her she was still having numbness in the right hand, and when I examined her, she had abnormality in the right-tricep reflex, which was depressed compared to the left side which is C7. So it's innovated by the C7 nerve root, which means it's motor function. The reflex is generated by the C7 nerve root, and so I thought that because of all of those factors, as well as the MRI showing the disc lesion in C6-7 irritating the C7 nerve roots, I thought that that all connected to a radiculopathy. Again, it being retrospectively, because it was after surgery.[56]

1. Dr D'Onise was asked why he effectively preferred the opinion of Dr Harding to that of Dr Carney which resulted in this exchange:

Dr D'Onise: I mean, I did note that Dr Carney said there was - well, Dr Carney said that there was no - surgery wasn't warranted, and he thought there was a non-organic illness, meaning, like, functional illness, meaning not real pathology, so that didn't seem consistent with having an operation. So I ignored that, because I presumed that if a person had a functional illness, no-one would operate, and I did note that Dr Meegan in January 2024 didn't have neurological findings, but then that may have - that wasn't in keeping with the findings that I found. So that might have been affected - might have been before an actual - clinical signs becoming apparent. As I said, I did find it difficult to answer the question in retrospect, because I wasn't - hadn't assessed the patient at the time.

Mr Austin: You said Dr Meegan. I mean, that's correct, isn't it? I was going to take you to Dr Meegan, who couldn't find any neurological signs at the time that he did the examination, and you wouldn't operate on somebody if there weren't neurological signs and symptoms, would you?

Dr D'Onise: No. Can I not comment? I'm not a neurosurgeon.

...

His Honour: Would it be reasonable to assume that part of your process of reasoning was that a neurosurgeon had recommended surgery to alleviate symptoms of radiculopathy, another neurosurgeon actually performed that surgery, and she appeared to get some relief from the surgery?

Dr D'Onise: Yes, and she still had residual signs when I saw her.

...

Mr Austin: In reaching your diagnosis, when you say you've taken into account the neurosurgical opinions, you said you've disregarded Dr Carney's opinion that he didn't consider that Ms Osborn has sustained injury to her cervical spine, which is the type described by Dr Harding, and more likely chronic degenerative change.

...

Dr D'Onise: Well, I did, but I didn't agree that there was - I acknowledge Dr Carney thought there was a functional non-organic illness, but it wasn't consistent with the history of symptoms and treatment process, and then presentation when I saw the patient. So I found that difficult to interpret as a relevant assessment.

...And there's a history that follows that including progression of symptoms referred into the right arm, the temporary improvement, I think, in symptoms with an injection, a cervical nerve block. So that would be relevant information, and then, I guess, to some extent, recovery of function and return to work after surgery. So I would consider that was a history and a story of a person who had an injury and partially responded to surgical intervention.[57]

1. Having had it suggested that the radiological reports showed issues only with the left side, Dr D'Onise was asked whether the radiological reports supported a diagnosis of a right sided radiculopathy. He said:

Well, in June 2023, the MRI had a circumferential bulge, which means that both sides - if we talk about anatomy of left and right side, the bulge wasn't, like - or that we - what did I call it - the disc bulge. The disc bulge wasn't isolated to one side. So the disc bulge was affecting both sides. It's very hard to quantify the extent of narrowing, but my interpretation was that there was narrowing on both sides of C7. Based on the systems that she had, I presumed that the worse side, the symptomatic side early on was the left side, which was also identified on the following MRI scans, but after surgery it was on the left side. So it's hard to comment on that, but before surgery, my understanding that there was evidence of narrowing of the openings where the C7 nerve roots come out, on both sides.[58]

1. Mr Tilley, counsel for Ms Osborn, submitted that I should be comfortably satisfied that Ms Osborn injured her neck in work related incidents on 22 October 2022 and on 3 February 2023. He submitted that I should find that either the February 2023 injury of itself, or in combination with the October 2022 injury had caused previously asymptomatic degenerative change in her neck, to have become symptomatic and caused symptoms consistent with a radiculopathy in Ms Osborn's right arm. He submitted that I ought make this finding based upon the evidence of Dr D'Onise.
2. Mr Tilley submitted that Dr D'Onise gave a cogent explanation in support of his opinion as to causation: based on the radiological evidence, the reported symptoms of numbness, initially in the left arm and later in the right arm, his finding on examination of a right triceps deficiency, his belief that a surgeon would not operate on someone who had a functional illness, and Ms Osborn's improvement following the surgery.
3. He submitted that I should not be dissuaded from finding that causation has been established by some evidence that suggested that there may have been symptoms prior to October 2022. He submitted that whatever happened on 23 February 2018, it was short lived and contemporaneous radiological scans revealed no issue. He submitted that in respect of the incident in May 2020, I should accept Ms Osborn's evidence that after using some deep heat and taking some warm baths, it came good after five or six days.
4. He submitted that evidence of long-standing thoracic spine pain and shoulder pain were unrelated to the matter before the Court.
5. Whilst I understood him to accept that there was not universal support for the fact of the surgery, he submitted that that is not the test. He referred me to the judgment of King CJ in Metro Meat Ltd v Banjanovic[59] where he said:

I think that when the expression is read as a whole, its natural meaning is that the expenses must be reasonable as to the incurring of them by the worker. That implies to my mind that the worker must have acted reasonably in procuring the rendering of the service and engaging himself to the pay the amount charged... The reasonableness of the action of the worker incurring the liability must be determined having regard to all the circumstances of the case. Although the test of reasonableness is essentially objective, a subjective element is involved.[60]

1. Mr Tilley submitted that Dr Harding's credibility was not seriously attacked, that she maintained the reasonableness of the surgery notwithstanding Dr Carney's contrary opinion. He submitted that it was noteworthy that once she had referred Ms Osborn into the public health system, Dr Harding had no financial interest in this case. He submitted that she provided a cogent explanation as to why the surgery was indicated, that is was a decision that was supported by the two neurosurgeons at the Flinders Medical Centre, and which was vindicated by the success of the procedure in alleviating Ms Osborn's symptoms.
2. Mr Austin, counsel for Woolworths, accepted that Ms Osborn sustained injuries at work in October 2022 and on 2 February 2023. But he submitted that I should act on Dr Carney's evidence and find that the injuries that she sustained amounted to no more than minor strains, that did not necessitate the neck surgery that Ms Osborn underwent in May 2024.
3. Mr Austin submitted that the evidence establishes that the incident in October 2022, was not major. He submitted that the evidence established that there was no time lost at work, she did not need to perform modified duties, and in her own words, by Christmas 2022, she "was 100% recovered".
4. In connection with the February 2023 incident, he took me to Dr Olaiya's notes that in the period immediately after it occurred. He noted that they made no reference to neck pain, and no report of radiculopathy in the right arm. He noted that the first reference to left arm pain was in the Mr Shore's pain chart of 28 February 2023 and that the complaint of right arm pain did not come on until some months later.
5. Mr Austin submitted that I should be concerned by the cavalier manner in which Dr Harding gave her evidence and her failure to make detailed notes of her finding as exemplified by her response to the question as to what benefits Ms Osborn experienced following the cervical nerve root block that was administered that met with the response; 'I can't say." He submitted that this was in marked contrast to the thorough and comprehensive way that Dr Carney approached this matter.
6. Mr Austin submitted that I ought not rely upon the evidence of Dr D'Onise in respect of causation. He submitted that he provided no rational basis for preferring the scant recorded findings of sensory changes made by Dr Harding, as opposed to the comprehensive findings made by Dr Carney that revealed that there were no sensory changes, noting that Dr Carney's findings were consistent with the findings made by Dr Meegan. He submitted that Dr D'Onise's opinion suffered from the fact that he made an untested and unsubstantiated assumption about supposedly physically demanding nature of Ms Osborn's work duties, and that she had to reach away from her body with her right hand. He noted that Ms Osborn never contended that and she agreed that in contrast to her work at Woolworths Port Lincoln, her work as a cleaner at the Port Lincoln Hotel did involve having her arms outstretched. He added that Dr D'Onise was at the distinct disadvantage in offering an opinion in this case, as he did not examine Ms Osborn until well after her surgery, and at a time when she was not displaying much, if at all, by way of symptoms.
7. He submitted that I could be comforted in finding that the injuries of October 2022 and February 2023 were minor, by the fact that Ms Osborn had very little time off work on account of them.
8. Finally, he submitted that there was a significant gap in Ms Osborn's case, namely that those actually involved in her surgery were not called. He submitted that without their evidence, I could not make a finding that the surgery was in consequence of any work injury, much less a work-caused radiculopathy.

1. Underpinning Ms Osborne's case and the submissions advanced on her behalf are the following propositions: she is a reliable witness whose testimony provides a sound basis upon which to make findings to support her case that work injuries caused her to experience radiculopathy; Dr D'Onise's opinion evidence as to causation is soundly based and provides a cogent explanation for the conclusion that he reached; and Dr Harding has provided a cogent explanation for why Ms Osborn had radiculopathy and why it required surgery. Unless the first two propositions are made out, a consideration of the third may not arise.
2. In respect of the first of these propositions, there are several aspects of Ms Osborn's evidence to this Court and the history that she provided to doctors that trouble me.
3. First, there is her apparent lack of recollection of her consulting with Dr Valentincic in March 2018 and having a CT scan of her neck being at around that time. I find it odd that she has no recollection of this. I think that most people, if told they needed a CT scan of their spine by a doctor, would be concerned that they might have significant medical issue to deal with. That scan clearly occurred, so it is reasonable to infer that Ms Osborn did not consider that the suggestion of the scan was unnecessary. I am entitled to know that the scan itself involves lying on a padded table in a medical environment, that the table is then fed into a machine, and that the procedure takes more than a few minutes. I find it surprising that Ms Osborn cannot remember this. I am certainly not prepared to draw the inference that the symptoms that she complained of to Dr Valentincic were trivial and that this explains why Ms Osborn cannot remember them.
4. Second, is her statement to Dr Meegan that she had no prior history of similar symptoms and her statement to Dr D'Onise that the only history of previous injury was bursitis in both shoulders between July 2020 and December 2020. The evidence clearly establishes that Ms Osborn complained to doctors of experiencing pins and needles in her arm in in March 2018, and August 2020.
5. Third, is the lack of consistency in her reporting of the significance of the incident in October 2022. She said in her evidence that by Christmas 2022, she had made a complete recovery, and that in the busy period before Christmas she had no issues. The application for review not only makes no mention of the October 2022 incident, it stated that prior to February 2023, her life was enjoyable in marked contrast as to how it was thereafter. All of this is inconsistent with her telling Dr Meegan that she had the initial thoracic injury in October 2022 with symptoms settling, but never resolving completely.
6. Fourth, is her explanation as to her evidence about her writing "(L)" in the Patient Health Questionnaire in connection with the surgery to be undertaken at the Flinders Medical Centre. How the fact that Ms Osborn may have had family watching her when she filled in the Questionnaire informs what she meant when she wrote: "(L)", escapes me. I do not accept her evidence on this topic. I find that she wrote "(L)" to mean "left".
7. Fifth, is the lack of consistency about the onset of the symptoms said to support a diagnosis of radiculopathy following the 2 February 2023 incident.
8. In connection with her left arm, Ms Osborn's affidavit of evidence suggested that she felt pins and needles in her left hand at around the time of the incident. She told Dr D'Onise that the numbness in that arm, starting at the elbow, commenced within two hours of the incident. In contrast to this, the first documented reference to left arm pain and numbness is Mr Shore's note of 20 February 2023. There is no reason to doubt the accuracy of Mr Shore's notes. When asked, Ms Osborn said that the pain charts contained within those notes were accurate. There was no mention of any left arm symptoms at the consultation with Mr Shore on 15 February 2023. I find that following the incident of 2 February 2023, Ms Osborn did not experience pain or numbness in her left arm until after 15 February 2023.
9. In connection with the right arm, Ms Osborn told Mr Carney that that arm began to trouble her in March or April 2023, which she seemed to attribute to her using her right arm, having been told to cease using her left arm. Based upon her own evidence the problems in Ms Osborn's right arm following the incident of 2 February 2023 did not commence until May 2023. This is confirmed by the medical records. The first documented reference to right arm pain and numbness is in Dr Fadzli's notes of 25 May 2023. I find that following the incident of 2 February 2023 Ms Osborn did not experience pain in her right arm until sometime in May 2023.
10. In respect of the second of the propositions underpinning Ms Osborne's case, I am also troubled by some of the evidence of Dr D'Onise.
11. In the first place, the history that he relied upon was not completely accurate. He assumed that the only potentially relevant prior issue concerned bursitis. In fact there is a clear history of Ms Osborn experiencing pins and needles in her arms in 2018 and 2020.
12. Then, there is his evidence about the timing of the onset of Ms Osborn's numbness in her left arm. Based upon the history that he was provided, he assumed that it commenced within two hours of the incident of 2 February 2023. Later, he acknowledged that this was an important consideration in him reaching his conclusion about the diagnosis. As I have just explained that history is wrong. The onset of Ms Osborn's issues with her left arm did not commence until about two weeks after that incident. Even where there is a close temporal connection between an event and the onset of symptoms, caution must be exercised before reaching the conclusion that causation has been established.[61] But to the extent that a temporal connection can be relied upon in establishing cause, common sense would dictate that the longer the delay, the less likely the connection. Surely a delay of a matter of hours tells a quite different story to a delay of a matter of weeks. Yet when Dr D'Onise was asked about this, with the suggestion that a later onset of numbness than he assumed might be a significant matter, he gave me the impression that for him, a matter of a few weeks delay in the onset of symptoms was inconsequential. I did not find that response convincing.
13. Finally, there was Dr D'Onise's explanation as to why he rejected Dr Carney's opinion. It took from his evidence that one of the reasons why he thought that Dr Carney's opinion that Ms Osborn had a non-organic illness must be wrong, was because no-one would have operated on her if she had a functional illness. I have some difficulty with that reasoning. There are at least two reasons that I can think of as to why Dr Carney could have found evidence of a functional illness when others did not. If the detailed record of his findings on examination as set out in his report, when compared to the notes of examination findings made by others is anything to go by, an obvious explanation is that he conducted a more comprehensive examination than others and found evidence of a functional illness, when others missed it. Even if that is not so, a survey of the medical reports in this case indicates that the symptoms that Ms Osborn presented with, if she is to be believed, varied from time to time. For example, Dr Meegan noted that Dr Harding considered that Ms Osborn had sensory changes on the right over her C7 and C8 dermatomes, whereas he stated that when he examined her, they were not evident. That does not mean that one of them must have been wrong. All that it establishes is that on different days, Ms Osborn presented differently. In like manner, the fact that Dr Carney thought that when he examined Ms Osborn, she was displaying symptoms consistent with a functional non-organic illness, does not mean that he got it wrong. His findings are consistent with Ms Osborn presenting on other occasions in a way that did not disclose functional non-organic illness. As for the fact of the surgery, this is not the first case to come before this Court where one surgeon has recommended surgery when another has stated that it is not warranted because the worker has a functional non-organic illness.[62] It does not follow that those who have counselled against surgery because they think the worker has a functional illness, must always be wrong.
14. I remind myself that Ms Osborn has the burden of proving that her alleged radiculopathy was caused by her work at Woolworths Port Lincoln. As Heydon JA observed in Williams v The Minister, Aboriginal Land Rights Act 1983 and the State of New South Wales:

...[the] discharge of the burden of proof depends on experience by the trial judge of an actual persuasion of the existence of the matter to be proved. There must be an appropriate degree of confidence in its existence."[63] (Emphasis added mine)

1. This is not a case where if it were not the events of 22 October 2022 and 2 February 2023, what else could have caused Ms Osborn's alleged radiculopathy.
2. There is evidence that points to Ms Osborn making a full recovery after the October 2022 injury. She gave evidence in this Court to that effect. When she first prosecuted a claim in connection with the current proceedings there was no mention of the October 2022 incident and it was not referred to in her application for review. Quite to the contrary, in that application she expressly stated that prior to the February 2023 incident, her life was enjoyable. This casts doubt as to whether there were any lingering consequences of the October 2022 incident.
3. There is medical evidence that points against the incident of 2 February 2023 being the cause of radiculopathy. Dr Ekujumi thought that it caused a scapulocostal syndrome. Dr Carney expressly stated that he thought the injury sustained in that incident was no more than a muscle strain. This casts doubt as to whether this incident caused any injury to Ms Osborn's cervical disc.
4. There seems to be reasonable evidence that Ms Osborn has degeneration in her spine. She complained of symptoms consistent with radiculopathy in 2018 and 2020. If she had radiculopathy in 2023, a process of degeneration unrelated to the incidents of 22 October 2022 and 2 February 2023, could be the cause.
5. Assuming that she had a radiculopathy, given the delay between the 2 February 2023 incident and the reporting of arm symptoms, it also raises the possibility that there was some other event in Ms Osborn's life after 2 February 2023, that caused it.
6. In Rehsa Shipping Co SA v Edmunds[64], Lord Brandon of Oakbrook said:

...the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.[65] (Emphasis added mine)

1. Such are my concerns about Ms Osborn's evidence and Dr D'Onise's evidence, I am not persuaded to the requisite degree that the incidents of 22 October 2022 and 2 February 2023 caused the alleged symptoms of radiculopathy that formed the basis for the neck surgery that was later undertaken. This conclusion relieves me of the need to decide whether she had a radiculopathy at all, and whether the surgery should have been undertaken.
2. I shall hear from counsel as to what orders should now follow.

[38] TB 64. His neurological examination of her upper limbs was normal.

[52] TB 137. The date February 2022 was subsequently corrected to October 2022. See TB 143.

[59] [1989] SASC 1868; (1989) 52 SASR 102.

[61] Return to Work Corporation of South Australia v Sunman [2021] SASCA 125 at [51].

[62] See, for example: Gross v Return to Work SA [2019] SAET 185 and Georgoudis v Return to Work Corporation of South Australia **[**2022] 105.

[63] [2000] NSWCA 255 at [61] per Heydon JA.

[64] [1985] 1 WLR 948; [1985] 2 All ER 712.