Perrin v SAS Trustee Corporation

The relevant injury

1. The plaintiff was involved in an incident on 1 January 1998. In essence, it could be described as a motor vehicle accident, although it hardly seems to have been accidental. The incident is described in the plaintiff's affidavit commencing at [13] to [21]. It is also described in a contemporaneous COPS entry which became exhibit T. The description given in the plaintiff's affidavit is somewhat more succinct, so I will quote that rather than the contemporaneous document. The plaintiff in his affidavit said this: "[13] At about 2pm on 1 January 1998 I was a front seat passenger in an unmarked detectives' vehicle (Holden Commodore) driven by Murray John Stone. My memory is that we were going somewhere to get lunch. We received a call over the radio indicating that police were attending a domestic violence incident in Stanmore. We attended the scene. By the time we arrived, the alleged offender had left the scene in a vehicle. The uniformed police officers at the scene signalled us to pursue the vehicle. It was only later that we discovered that the vehicle being pursued was a mid-size dump truck. As a result of our pursuit, Murray and I found our vehicle was in fact in front of the offender's truck. Murray stopped our vehicle, positioned in a way so as to block a two lane side street (Merton Street) which ran into Stanmore Road. I got out of the police vehicle and in fact drew my side arm. However, observing the truck to be fast approaching along the side street, I realised I could do nothing to stop the truck. I got back into the front passenger's seat, and Murray accelerated the vehicle down Stanmore Road. The truck came around the corner and picked up speed. It was about 20 metres along Stanmore Road on the intersection with the side street that the dump truck crashed into the rear of our vehicle. I estimate that the truck was going about 70 kilometres/hour. The collision was very violent and caused the rear wheels of the police vehicle to leave the ground. [14] At the time of the collision I was not wearing any seat belt. I remember my left leg was against the passenger door and my right foot was against the fire wall under the dashboard. My memory is that my left hand had gripped the handle above the passenger door window. The car radio receiver was in my right hand. When the truck crashed into the police car, I remember that I was thrown violently against the roof of our vehicle. I remember my left shoulder and the left side of my head coming into violent contact with the roof of our vehicle. I then remember crashing back down onto the passenger seat as the rear wheels of our car returned to the ground. My memory is that the dump truck had enough momentum to continue careering across Stanmore Road and collide with a marked police vehicle that was coming the other way. [15] I remember immediately getting out of the police car, drawing my baton and, with other police officers, subduing the still violent offender. I remember the offender was armed with a tyre lever. [16] The whole incident occurred very quickly. [17] After a short time and after I came down a bit following the incident, I began noticing pain and discomfort in the back of my neck, which was more to the left side of my neck. I also noticed some pain and discomfort across the top of my shoulders, particularly my left shoulder." The plaintiff's affidavit goes on to state in [18] that over the ensuing hours the plaintiff's pain and discomfort became worse and in [19] that he took himself to the emergency department at Royal Prince Alfred Hospital seeking treatment. The plaintiff in [20] of his affidavit said that he stayed at the hospital for a number of hours and thought he had an X-ray of his neck taken at the time. In [21] of his affidavit the plaintiff said that he had the next shift off work and had a memory of attending a general practitioner at Jannali in relation to problems that he was then having.
2. Exhibit T, the contemporaneous COPS entry, does tell me that the plaintiff was "treated" for soreness to his "back and neck". Other police were also injured and their complaints are mentioned in the same document. However, the document tells me that although Mr Perrin was injured, he was "not treated". Beneath the inquiry "injury type" is the enquiry, "Hospital involved," and that has been left blank. A subpoena for production was served upon the Royal Prince Alfred Hospital. That hospital produced records relating to the plaintiff's attending upon the hospital on 1 June 1998 with an injury to his right index finger following upon a fall from a fence in pursuit of an offender. Those were the only documents produced by the Royal Prince Alfred Hospital. It can be seen from those documents and from what is contained in the COPS entry that the plaintiff did not seek treatment at the Royal Prince Alfred Hospital. The plaintiff is obviously mistaken in his recollection. Whoever the general practitioner may have been at Jannali, the evidence does not disclose. If the plaintiff knew his identity, I am confident he would have told me. There, accordingly, is no contemporaneous evidence of the plaintiff's having injured his neck in this motor vehicle collision other than the entry in the COPS record of the incident.
3. There is no evidence that the plaintiff took any time off work as a result of the injury he now relies upon. Exhibit 7 is the plaintiff's sick leave records and they do not indicate that the plaintiff took any time off work for a neck complaint on or after 1 January 1998. The plaintiff has also stated that he returned to work on suitable or restricted work, but if there were any restriction it resulted from another medical problem, not a problem with the plaintiff's neck. The plaintiff worked on as a detective senior constable until, it would appear, 20 July 1998. He then went off duty on sick report and remained on sick report until he was medically discharged from the Police Force on 8 November 2001.

Medical discharge

1. The infirmity certified at that time, which caused the plaintiff to be medically discharged, was "chronic adjustment disorder with depression". I merely point out that there is not much difference between a "chronic adjustment disorder" and post-traumatic stress disorder ("PTSD"), except perhaps the nature of the external stressor which causes each of those psychiatric infirmities. The plaintiff sought a determination by the Commissioner of Police that that certified infirmity was caused by his having been hurt on duty. The Commissioner declined to do so. The plaintiff then commenced proceedings in this Court seeking to have that decision of the Commissioner of Police set aside and replaced with a decision that his suffering of the infirmity of "chronic adjustment disorder with depression" was caused by his having been hurt on duty. Apparently that appeal was withdrawn, but why I do not know. Because the infirmity which led to the plaintiff's being medically discharged was not caused by his having been hurt on duty and because the plaintiff had not served as a member of the police force for 20 years he was not entitled to a superannuation allowance under the Act, but a "gratuity", being the monetary equivalent of two years' salary.

Early treatment of the plaintiff's neck

1. The plaintiff was later to make an application under s 10B(2). That application bears date 4 September 2007. A copy of it is exhibit Y. It is necessary, however, to consider the state of the plaintiff's neck prior to that time. One of the reasons that caused a delay in the determination of current proceedings and the delay between the hearing of the evidence and the presentation of addresses, was a lack of early medical records relating to the plaintiff. At the age of 14 the plaintiff commenced to see a Dr McLeod, who had a medical practice at Mortdale. As I have earlier mentioned, the plaintiff spent most of his life in the Mortdale area. Accordingly, the plaintiff started seeing Dr McLeod in either 1979 or 1980. Doctor McLeod moved his practice to Letitia Street, Oatley, and later retired. The practice was acquired by Dr Dennis Koutis and Dr Sophie Vavladelis when the plaintiff was "about 23". That indicates that Dr Koutis took over Dr McLeod's practice in either 1988 or 1999 or around about that time. One can see therefore that Dr Koutis would have been the plaintiff's treating general practitioner since at least the early 1990's , both before and after the event of 1 January 1998. However, all that has been produced by Dr Koutis are computerised records commencing on 25 July 2001 and handwritten notes commencing 3 February 2004. Attempts to obtain any records generated before 25 July 2001 have been completely unsuccessful. Accordingly I am completely in the plaintiff's hands as to the nature of his treatment prior to the medical records generated on or after 25 July 2001.
2. The plaintiff told me that his being off work from 20 July 1998 was because of psychological symptoms which he believed were symptoms of PTSD. He related that to his being involved with the death of a male during a police pursuit in 1997. In his affidavit, commencing at [27], the plaintiff told me that after the event of 1 January 1998 he continued to experience symptoms in his neck, shoulders and arms. He thought that these symptoms radiated to both sides of his neck, although the left side was more greatly affected than the right. He also said that he had headaches at the back of his head, that is, occipital headaches, which are often related to a neck complaint. He also said that he began to experience numbness in his left wrist and on the ulnar side of his left hand, although the plaintiff did not describe it in that medical fashion. The plaintiff then said this: "[33] Prior to discharge I remember that I attended the surgery of my usual general practitioner, Dr D Koutis, complaining about problems with my neck and shoulders and arms. At some point prior to discharge, Dr Koutis referred me to see Dr J Vote, orthopaedic surgeon, in relation to these complaints. I saw Dr Vote on a number of occasions at this time. During the course of his treatment of me, Dr Vote referred me to see Dr W Viglione, orthopaedic surgeon, specifically for consideration and treatment of the symptoms I was complaining about in relation to my left wrist and hand, that is, the numbness and clawing I was experiencing. Some time prior to discharge, Dr Viglione performed a surgical procedure upon my left wrist. I understand this to be a carpal tunnel release. I did not perceive any benefit from this surgical procedure. My memory is that after the surgical procedure Dr Viglione suggested I return to see Dr Vote in relation to my neck symptoms. [34] Also before discharge I do remember attending a physiotherapist for treatment of my neck. This only lasted a short time as I did not perceive I was getting any relief. I did also try treatment at the hands of chiropractors."
3. It is common ground that sometime around the time of his medical discharge the plaintiff did see Dr Wayne Viglione and undergo a left carpal tunnel release. Doctor Viglione has been requested to produce a report. Exhibit C is a letter from Dr Viglione to the workers' compensation section of the New South Wales Police Department advising it that the doctor would not prepare a report as he had not treated the plaintiff's "neck condition". However, one would have thought that Dr Viglione would have sent reports about the operative treatment he provided to the plaintiff, to the plaintiff's general practitioner, Dr Koutis. However, they have not been produced by Dr Koutis. If what the plaintiff tells me in [33] of his affidavit be correct - and in that regard he was not challenged at all - then there would also be records made at some stage by Dr James Vote and correspondence from Dr James Vote to Dr Koutis, but again, no such records have been produced by Dr Koutis. There are a number of reports before me from Dr Vote, but they do not relate to this early period of treatment. They come before me in different ways. At one stage Dr Vote was treating the plaintiff, at one stage he was seeing him for the Commissioner of Police and at one stage he was seeing him for the defendant. No records have been produced by any chiropractors. However, whether they would have assisted me is a completely different question and the plaintiff was not asked whether he could now identify who they may have been.
4. However, I do accept that the plaintiff was under treatment in one way or another prior to 2002 for, inter alia, his neck complaint. Furthermore, that ties in with one of the irrefragable facts that I must bear in mind when considering cases under the present Act, that irrefragable fact being that eventually the Police Superannuation Advisory Committee established under the Act decided, pursuant to s 10B(2), that the plaintiff was, at the time of his medical discharge - that is, on 8 November 2001 - suffering from a cervical infirmity and that it rendered him incapable of discharging the duties of his office at that time and subsequently. Another irrefragable fact is that that condition was caused by the plaintiff's having been hurt on duty. The Commissioner of Police, after further litigation which I shall need to mention again - eventually conceded that.
5. On 17 May 2002 a regional bone scan was performed at the request of Dr Koutis by Dr Ivan Ho Shon at the St George Private Hospital and Medical Centre Nuclear Medicine Practice. The report of that investigation is exhibit G. According to exhibit G the reason for the assessment was "upper thoracic and cervical pain" and there was then reference to a suspected fracture. The conclusion of the radiologist is this: "Aside from minor left 7th and 8th costovertebral articulation arthritis, the study is within normal limits." All that means is that some radiological abnormality was noted of the joints of the 7th and 8th ribs with the vertebrae involved, that is, T7 and T8. The importance of the investigation is that it was required because the plaintiff was complaining of pain in his neck and also in his upper middle back. There is nothing noted in Dr Koutis' computerised records, which are exhibit MM, of the plaintiff attending upon Dr Koutis prior to 17 May 2002 for such an investigation. However, some complaint must have been made to Dr Koutis requiring that to be done, which is not recorded in his notes. On 27 May 2002 Dr Koutis prescribed Panadeine Forte tablets prn "for strong pain". Where the pain was, the doctor's notes do not record.
6. The next medical record is a report of a plain X-ray and CT scan of the cervical spine performed on 29 May 2002 by Dr Jessup. The plain X-ray is reported thus: "Well established disc space narrowing and spondylosis are present at C6-7. The other disc spaces do not appear narrowed. There are degenerative changes in the C6-8 uncovertebral joints with mild osteophytic encroachment on the C6-7 intervertebral foramina. No instability is detected in the functional views." The computerised tomography looked at all levels from C2 to T1. At C2-3 no abnormality was detected. At C3-4 there was minimal posterior central bulging of the disc. There were minor degenerative bony changes present posteriorly. At C4-5 there was a mild posterior central bulging of the disc. It was not thought to be impinging on any associated nerve root. At C5-6 there was minimal posterior bulging of the disc. At C6-7 there was thought to be disc degeneration. There was minimal posterior bulging of the disc. There was mild osteophytic encroachment on the spinal canal and on the intervertebral foramina, mainly on the left the intervertebral foramen. At C7 T1 no significant abnormality was detected. Doctor Jessup thought that the disc bulging was more pronounced at C4-5 than at any other level because he described it as "mild", at other levels it was only "minimal". However, he also pointed out that there was well established disc degeneration and spondylosis at C6-7 with mild osteophytic encroachment. It is clear that the most degenerate disc was C6-7 and the next most affected disc was C4-5.
7. The next medical record is an entry in Dr Koutis' notes on 4 June 2002. The diagnosis made was C6-7 disc degeneration and there is a prescription again for Panadeine Forte and also for Voltaren. However, Dr Koutis obviously did more than merely prescribing pain killing medication. I do know that on 15 October 2002 the plaintiff saw Dr Ashish Diwan, the Chief of the Spine Service in the Department of Orthopaedic Surgery at the St George Hospital campus of the University of New South Wales. It is clear that the plaintiff was sent to see Dr Diwan by Dr Koutis. The plaintiff saw Dr Diwan on 15 October 2002. There are no entries in Dr Koutis' notes between 4 June 2002 and 15 October 2002 which record Dr Koutis referring the plaintiff to Dr Diwan. Indeed, the only entry in Dr Koutis' notes in that period of time is of an attendance on 13 August 2002 when the diagnosis was of eczema and when drugs were prescribed for that condition and also for insulin dependent diabetes mellitus.
8. According to Dr Diwan's report of 15 October 2002, the plaintiff presented with both neck pain and left arm pain. The doctor's history is this: "Scott's problem started in April 2002 when, while he was doing some stone work, he developed severe pain in his precordium and left arm. It was then thought that he had acute myocardial infarction, for which he was taken to St George Hospital and managed. He was informed that he did not have any evidence of any cardiac or pulmonary pathology. Since then his symptoms have gradually improved, however his neck pain is present all the time and his arm pain is present most of the time and they are very bothersome and he rates his neck pain at 7/10. His pain charts are precise and consistent with described symptoms. There is disturbance of sleep, there are no bowel or bladder problems, there is morning stiffness and the problem is worse with straining and coughing. He is presently on over the counter medications which he takes once or twice a day and which have stopped having any effect. There is extreme interference with his work at home and recreational activities. Further, there is a lot of limitation of light, moderate and vigorous activities and lying on his sides. There is little limitation of bending, kneeling, stopping, sitting in a chair, standing straight or erect, lying on his back and his stomach. For his symptoms he has tried out a whole range of non operative treatments, including local heat, spinal manipulation, back and neck exercises and massage therapy. You [Dr Koutis] have picked up his C7 radiculopathy and have also treated him in the past for carpal tunnel release." There are problems with this history. One will note that, according to the doctor's history, in April 2002 the plaintiff thought he had a "heart attack" requiring him to be taken to the St George Hospital, where any cardiac or lung problem was excluded. Exhibit 10 is a record of 15 admissions of the plaintiff to St George Hospital for a large number of conditions, most of which are completely unrelated to my current inquiry. However, there was no admission to the St George Hospital for treatment of a cardiac condition or suspected cardiac condition in April 2002. Indeed, the eighth admission was in 1993 and the ninth admission was in 2007. The documents produced on subpoena by the St George Hospital were voluminous. Exhibit 10 was made by counsel and was tendered by consent. When I inquired as to whether there were any outpatient records for April 2002 I was told that there was none, nor was there anything to suggest that the plaintiff went to St George Hospital with a cardiac condition, or suspected cardiac condition, in April 2002. One classic symptom of a "heart attack", or, to use other medical terminology sometimes used, a coronary occlusion or a myocardial infarction, is pain in the upper left anterior quadrant radiating down the left arm. However, cervical pain is not a typical symptom of cardiac problems. The history reads as if the neck pain started at the same time as the suspected heart attack in April 2002. However, that appears to me to be unlikely.
9. Another problem with the history is that I do know that antecedent to seeing Dr Diwan on 15 October 2002, Dr Koutis had prescribed strong pain relief, namely Panadeine Forte and Voltaren, which cannot be obtained "over the counter". The plaintiff had been taking it, which again means Dr Diwan's history is not accurate. However, the plaintiff admits that in April 2002 he aggravated symptoms in his neck whilst doing some stone work. That is contained in [36] of his affidavit. Accordingly I have no hesitation in finding that the plaintiff did involve himself in some stone work in April 2002 which at least made worse his symptoms.
10. Doctor Diwan examined the plaintiff. He found a mild suppression of the plaintiff's triceps reflex on the left hand side. The triceps reflex is predominantly innervated (according to Dr Diwan) by the C7 nerve root and therefore its "mild suppression" is evidence of some C7 pathology and the C7 nerve root exits the spine in the C6-7 intervertebral space. In other words, the suppression of the plaintiff's left triceps reflex is indicative of some C7 pathology referable to a C6-7 disc problem. According to Dr Diwan's report he explained to the plaintiff that there appeared to be "significant compression" of the nerve root at the C6-7 level causing his symptoms and he organised for the plaintiff to undergo an MRI scan. That was performed on 25 November 2002. It is reported by Dr Shnier as revealing "tiny postero central disc protrusions at C3-4, C4-5 and C5-6". It also reported as showing narrowing of the disc space at C6-7 and osteophytosis which was interfering with the disc complex and encroaching the exit foramina on both sides. The exit foramina refer to the areas where the C7 nerve roots leave the spinal column and go through the vertebral body. The doctor also noted a small postero central disc protrusion at T3-4, which is currently irrelevant.
11. After that investigation was made Dr Diwan reviewed the plaintiff on 30 January 2003. He told the plaintiff that the compression of the C7 nerve root was not severe enough to warrant surgery. He recommended non operative treatment, in particular isometric neck exercises, and suggested to the plaintiff that he try that treatment over the ensuing three to six months. Doctor Diwan expected a favourable outcome from that treatment. The doctor noted in passing that in the previous week the plaintiff had dislocated his shoulder, which was then in a sling. That would appear to have been the plaintiff's left shoulder. Dr Koutis arranged for an ultrasound of the plaintiff's left shoulder and a CT scan of the plaintiff's cervical and upper thoracic spine. They were carried out on 15 April 2003 by Dr Jessup. There is no entry in Dr Koutis' computerised records telling me why he organised those investigations, again pointing to the paucity of Dr Koutis' record keeping. The ultrasound of the left shoulder was probably the result of the plaintiff's having dislocated his left shoulder in January 2003.
12. The CT scan on this occasion, when compared to that of 29 May 2002, suggests that the problem at C5-6 was more marked than it had been previously. The C5-6 level is reported in this fashion by Dr Jessup: "There is moderate posterolateral herniation of the C5-6 disc on the left. Herniated disc material is encroaching on the left side of the spinal canal and there may be nerve root impingement on the left." That must be compared with the notation made no 29 May 2002 of only "minimal posterior bulging of the C5 disc". Of course that raises an argument that there may have been some intervening injury to the cervical spine or that this might be the end result of the events of April 2002, as it takes some time for radiological appearances to be noted after that injury, or it might mean that at the time the plaintiff injured his left shoulder, he further injured his neck. However, it might be due, as Dr Diwan says, to the natural progression of cervical spondylosis.
13. On 6 May 2003 Dr Koutis started prescribing Endone, a morphine based painkiller. On 15 July 2003 he added Celebrex, again, a drug usually given for what I would describe as "orthopaedic" problems. However, the doctor's notes after 15 July 2003 do not refer to those drugs again, but to drugs for other conditions. However, I do know that on 21 May 2004 Dr Koutis' notes indicate that Endone tablet taking had ceased. I can assume therefore that the failure to mention Endone between 15 July 2003 and 21 May 2004 was that and not a cessation of prescription.
14. Doctor Koutis provided a report to the Police Department bearing date 22 February 2009. It became exhibit B. The first numbered paragraph of the report is this: "I first documented details of significantly severe symptoms related to the neck injury on 1 September 2005. He has presented on average about monthly thereafter with symptoms related to the condition. At times he has presented as often as weekly." Again, I have some difficulty with that formulation by Dr Koutis. For example, in February and March 2005 he is again prescribing Celebrex. I know that from the computer-generated records. From the handwritten notes I know that on 7 February 2005 there was a complaint of left sided sciatica, on 14 February 2005 an investigation of the lumbosacral spine and a referral to Dr Viglione for low back complaints, a record of left knee problems in April 2005; and there is a record that I find very difficult to decipher, which is probably dated 1 September 2005, and then further entries on 17 October 2005 and 24 October 2005, the last of which is clearly related to the plaintiff's neck. It appears to me that the plaintiff's neck condition had been under the active supervision of Dr Koutis well prior to 1 September 2005 and clearly had been, on his own records, since 2002.
15. The next investigation is a report of an X-ray and ultrasound of the right shoulder, an X-ray of the chest, an X-ray of the neck and a CT scan of the neck made by Dr Susan Hing on 23 June 2006 at the request of Dr Koutis. That shows, again, the most significant problem as being at C6-7, but suggests that the problems at C3-4 and C5-6 are the same. There is then another regional bone scan with tomography made on 23 June 2006, addressed to Dr Koutis. That was requested because of pain in the cervical spine with radiation to both shoulders. The reason for the scan was to try to identify the site of the relevant abnormality. The radiologist, Dr Kuan, commented that there was a probable left C6-7 disco vertebral arthritis, but no evidence of any focal facet joint arthritis. The testing suggests that the only problem was a C6-7.
16. In the following year there is again a further whole body scan tomograph done at Dr Koutis' request. That was performed on 29 October 2007. As far as the neck was concerned, the radiologist reported the investigation thus: "Delayed images of the cervical spine are unchanged. There is persistent uptake in the left C6-C7 discovertebral space, best explained by degenerative disease. There is low grade uptake anteriorly in the C3-4 discovertebral margin, also in keeping with degenerative disease. There is no typical appearance of fracture or active cervical spine facet joint arthritis."

Application for hurt of duty pension

1. The next relevant event is an incident that occurred on 28 November 2007. However, before I turn to that, I should comment on activities that had recently been undertaken by the plaintiff or on his behalf. The relevant activity was an application by the plaintiff pursuant to s 10B(2) of the Act for what could be described as a "retrospective" grant of a hurt on duty superannuation allowance. The application was received by the administrator of the Police Superannuation Fund on 6 September 2007. Exhibit Z is a submission to the Police Superannuation Advisory Committee ("PSAC") for its meeting to be held on 30 October 2008. It recommended that PSAC certify that former Senior Constable Perrin was incapable at the time of his medical discharge of personally exercising the functions of a police officer due to infirmities of cervical spondylosis with a degree of radicular symptoms in the left arm and early arthritic change in the left knee and evidence of anterior cruciate ligament deficiency. The recommendation to PSAC was that if it so determined and if the Commissioner of Police accepted that the suffering by the plaintiff of those conditions was caused by the plaintiff's having been hurt on duty, that the pension should commence on the date that a fully completed application form was received by the administrator of the Police Superannuation Fund, namely 6 September 2007. PSAC so decided on 30 October 2008, almost 14 months later. On 11 November 2008 that is, within a fortnight (praise be to God) the Commissioner of Police determined that the suffering by the plaintiff of the left knee condition was caused by his having been hurt on duty. I have made the bracketed comment because rarely does one see either this defendant or the Commissioner of Police acting so promptly. However, the Commissioner of Police deferred his decision as to whether the plaintiff's cervical problem was caused by his having been hurt on duty.
2. The plaintiff was not content with the decision of PSAC. Through his solicitors he made an application to the Disputes Committee of the defendant. Eventually, on 20 October 2009, the plaintiff's solicitors were advised that on 19 August 2009 the Disputes Committee had determined to add to the decision of PSAC a further infirmity, "aggravation of spondylolisthesis and degenerative change in the low back". Despite the plaintiff's solicitors only being advised of that decision on 20 October 2009, the Commissioner of Police was obviously advised of it earlier, because on 31 August 2009 the Commissioner of Police determined that the suffering by the plaintiff of "aggravation of spondylolisthesis and degenerative change in the low back" was not caused by his having been hurt on duty.
3. It was not until 27 January 2010 that the Commissioner of Police, with his usual alacrity, made a decision about the plaintiff's cervical condition. On 27 January 2010, some 15 months after PSAC had made its decision, the Commissioner of Police determined that the plaintiff's cervical condition was not caused by his having been hurt on duty. The plaintiff was aggrieved by the decisions of the Commissioner of Police about both his cervical condition and his lumbar condition. He commenced proceedings in this Court, matter RJ113 of 2010. That did not become the subject of any judicial determination. Exhibit GG is a Consent Order, made in RJ113 of 2010, setting aside the two decisions of the Commissioner of Police by which the plaintiff was aggrieved, and as far as the neck was concerned, replacing the original decision with a decision that the condition of "cervical spondylosis with a degree of radicular symptoms in the left arm" was caused by the plaintiff's having been hurt on duty with a notional date of injury of 20 July 1998. The date on which the consent order was entered up, I do not know. The document as typed indicates signatures of 24 August 2010 by the defendant's solicitor and a signature on 26 August 2010 by the plaintiff's solicitor. However, I do know that the Commissioner of Police made a "fresh" determination really reiterating the consent orders on 27 September 2010. It can be seen, therefore, that the plaintiff made an application to have his cervical condition accepted as being caused by his having been hurt on duty and so as to entitle him to a superannuation allowance. That was on 4 September 2007, and eventually that was conceded by the defendant and the Commissioner of Police by 27 September 2010, over three years later.

Motor vehicle accident of 28 November 2007

1. I return now to the history of the plaintiff's cervical problem. On 28 November 2007 the plaintiff was involved in another motor vehicle collision. An ambulance was booked at 2.33pm, arrived at the scene at 2.43pm, made contact with the plaintiff at 2.45pm and left the scene at 3.04pm and arrived at the St George Hospital at 3.35pm. That is the record of the Ambulance Service. When the ambulance officers arrived they noted that the plaintiff was a driver of one of the vehicles, that he was walking around at the accident scene, that he was alert and oriented and well perfused. The plaintiff complained of central neck pain, pain in his right shoulder, pain in his thoracic spine, pain in his left knee and had swelling over a periorbital area which is not specified, and there's a complaint of blurred vision in the right eye. However, there was no motor or sensory deficit. The plaintiff said that he had been travelling at 20 kilometres per hour when he was hit on the side of his car by the other vehicle which was travelling at 60 kilometres per hour. The ambulance noted that there had been "major deformation" to the plaintiff's vehicle by "protrusion" of that vehicle into the plaintiff's driver's cavity. To use the vernacular, as was used at the hearing, the plaintiff was driving his vehicle when he was "T-boned".
2. There was no admission to the St George Hospital on this occasion. He was treated at outpatients. They ordered an X-ray but the X-ray was not performed until 1 December 2007. The report of the X-ray is exhibit R. It noted "trauma" on 28 November 2007, noted that the plaintiff had been the driver involved in the motor vehicle accident, and noted a complaint of "right sided face and arm numbness" and the reason for the X-ray was to exclude a fracture. It did so but noted, "degenerative disease throughout but is most marked at C6-7." In other words, by late 2007 plain X-ray showed cervical spondylosis, or degenerative change, throughout the neck but most marked at C6-7. Following upon that Dr Koutis arranged for a further CT scan of the neck and also the skull and the brain. The CT scan of the skull and the brain disclosed no abnormality. The CT scan of the neck is summed up by the radiologist, Dr Schmaman, this: "Chronic disc disease C3-4 and 6-7 and accompanying neuro central joint osteoarthritic change with predominant change C6-7 on the left. No sign of fracture or dislocation." That scan really sounds very much like the scan reported by Dr Beuzeville, the report of 29 October 2007, which is exhibit NN. That is one made a month before the motor vehicle accident.
3. On 11 December 2007 the plaintiff underwent his ninth admission to St George Hospital. The records of that admission are exhibit 11. The plaintiff was an inpatient overnight, being discharged on 12 December. The principal diagnosis was chest pain. The additional diagnosis was diabetes mellitus. A report from the emergency department of St George Hospital, addressed to Dr Koutis, said this: "Scott Perrin presented to the emergency department at St George Hospital...on 11 December 2007 at 12.38. The presenting problem was atypical chest pain sudden onset of severe stabbing left sided pain, worst on expiration and movement, constant, lasting at least 1.5 2 hours. On arrival in emergency he was pain free (after aspirin/GTN/oxygen). His obs were stable and his cardiovascular examination was unremarkable. Chest X-ray was normal - no pneumothorax. Given his intermediate risk (type 1 diabetes, smoker) he was kept in EMU overnight for serial troponins. Despite intermittent pain (variable in nature and location, no response to Anginine) his ECG remained unchanged, serial troponins were less than 0.1 and a sestamibi scan was negative. I am therefore comfortable that it is unlikely to be a cardiac ischaemic chest pain. His main problems during his admission appeared to be his chronic neck pain and headaches, exacerbated by anxiety." I have carefully read all the entries and it would appear that this admission was probably precipitated by anxiety when the plaintiff perceived some irregular pattern of pain. However, it does not suggest, as has been put, that the admission was because of severe neck problems caused by the motor vehicle accident of 28 November 2007. I have reached the view that it is likely that was, as discussed in submissions, "a red herring".

Further treatment and opinions

1. Much of the medical evidence compiled after this time relates to the plaintiff's attempts to have his cervical condition accepted as hurt on duty, although antecedent to that there must have been attempts to ensure that he was incapacitated by his cervical condition at the time of his medical discharge.
2. The next medical report I have is from Dr James Vote, on this occasion addressed to the administrator of the Police Superannuation Fund, in essence, the agent of the defendant. It appears that Dr Vote was also concerned with the plaintiff's knee condition, but that is not at all presently relevant. The only thing which might be relevant is that Dr Vote noted that in 2006 the plaintiff saw Dr Drummond, an orthopaedic surgeon, and had some arthroscopy of his left knee for the removal of loose bodies within the knee joint itself. In other words, in 2006 the plaintiff was undergoing active treatment for his left knee. The history that Dr Vote records about the plaintiff's neck condition is this: "In relation to his cervical spine, he appears to have been involved in a significant rear end motor vehicle accident on 1/1/1998. He was not unconscious but did sustain, in his words, whiplash, which one would take to mean pain and stiffness in relation to his cervicothoracic area. He had a few days off and consulted his general practitioner and over a period of time, with physiotherapy and exercises, he was able to return to work. Since that time, he has had various consultations with specialists in relation to pain in the neck, headaches and bilateral referred pain, but mainly on the left side. I understand he underwent a carpal tunnel release on the left side without any major benefits." Again it should be noted that the evidence does not establish that the plaintiff had any time off work after the event of 1 January 1998 or any particularly active treatment at that time, but otherwise the history appears to be accurate. Dr Vote's diagnosis was, after his reviewing of the investigations that were available to him, "significant cervical spondylosis".
3. Doctor Vote was asked a number of questions. The first question was whether the plaintiff had any current medical condition. Relevantly, he said that the plaintiff suffered from cervical spondylosis. When asked how that medical condition was apparent, he said this: "His cervical problems were manifested by his X-ray changes and backed up by his variable symptomatology." The doctor was asked to state for how long the plaintiff had had that condition and he said that it was impossible to say for how long the plaintiff had cervical spondylosis. The doctor was then asked to state whether the cervical spondylosis was present at the time that the plaintiff left the Police Force. Dr Vote said this: "The earliest X-rays would appear to be only in 2002, where most of his injuries over the years, and certainly in relation to the left knee, have been in the 1990s. Unfortunately, there is no way of pinpointing when it is likely that his anterior cruciate ligament was damaged." One infers that, therefore, the doctor was unable to say whether the cervical spondylosis was present at the time that the plaintiff left the Police Force. In answer to another question, however, the doctor said that he considered that, inter alia, the cervical spondylosis was present at the time that the applicant left the Police Force. He also thought that there had been "no specific deterioration" overall between that time and the time of his examination on 7 October 2010. The doctor was asked to describe the exact nature of each medical condition as appropriate, and the doctor said as far as the neck was concerned the plaintiff had "cervical spondylosis with a degree of radicular symptoms in the left arm". It ought be noted immediately that that is one of the three infirmities certified by either PSAC or the Disputes Committee of the defendant. The doctor was asked, amongst other questions, how the plaintiff's incapacity to exercise the functions of a police officer was apparent at the time of his medical discharge. Doctor Vote said this: "He would have also appear to have had significant problems in relation to his cervical spine, which would make it difficult for him to spend long hours on a computer in terms of postural stress." The doctor was then asked this question: "Did one or more of the medical conditions referred to in your answer to Question 2 cause or contribute to the applicant's incapacity at the time they left the police force? If so, please identify which ones and explain how." It is to be noted that in this report Dr Vote was referring to two medical conditions, the plaintiff's neck condition and his knee condition. One will also note the appalling grammar involved in the question, which refers to "the applicant" and then refers to "they" as if the word "applicant" was plural and not singular. No doubt the writer of the letter did not realise that he should have said, "his or her". But since there is no suggestion that Mr Perrin is of the feminine gender, he should have used the pronoun "his". Relevantly, Dr Vote said this: "I think this gentleman had some degenerative changes in his neck but these were severely aggravated by the incident occurring in January 1998." In answer to a later question Dr Vote said this: "In relation to his cervical spine, I consider the incident occurring in January 1998 to be significant in terms of symptomatic aggravation of pre existing cervical spondylosis." Finally, the doctor was asked to provide a prognosis. The doctor said this: "Overall, his prognosis, in relation to his cervical spine, is poor. He has arthritic changes at this point in time and it would be expected that this would become increasingly symptomatic over the years."
4. The first thing is to note what the varied terminology means. Spondyle is the Greek word for a vertebra. A medical dictionary describes spondylosis as vertebral ankylosis." Ankylosis is defined as an abnormal immobility and fixation of a joint due to pathological changes in the joint or its surrounding tissue. Such ankylosis may be congenital, it may be hereditary, or it may result from disease. In essence, spondylosis means degeneration of a vertebra. However, it is used both in regard to the cervical, thoracic and lumbar spines generally as a synonym for degeneration. This process is well known to the Court and especially to any judge sitting in this List who was previously a judge in the Compensation Court.
5. It is important to bear in mind such intelligence as is contained in the textbook, Medicine and Surgery for Lawyers, The Law Book Company 1986. Chapter 29 of that work, commencing on p 414 discusses, "Cervical Spine Disease". On the same page is a heading, "Causes" and that gives two different causes for cervical spine disease, degeneration and trauma. The work says this: "Degeneration Degeneration is an inevitable concomitant of the ageing process and afflicts particularly the intervertebral discs. In youth, these are rubbery and springy and act as shock absorbers between the vertebrae. With increasing age or in response to disease or trauma, the disc loses its elasticity, becomes fibrous and may fragment. This results in the loss of the normal shock absorber function of the disc, and can (but does not necessarily) lead to pain in the neck, possibly with radiation. Because degeneration is a progressive condition, the ordinary course of events is for episodes of pain to become less frequent and less severe as scarring takes place and minimises and ultimately stops movement. In the absence of movement, there is no pain. Disease which can exacerbate the degenerative processes are the various forms of arthritis rheumatoid arthritis, osteo arthritis, ankylosing spondylitis. Osteoporosis can lead to weakening of the vertebrae and consequent crush fracture, although this is uncommon in the cervical region, except as a component of severe advanced rheumatoid arthritis. Degenerative changes lead to excessive growth of bone around the margins of the intervertebral discs. This can eventually spread across the disc space and lead to spontaneous fusion. It is of no practical consequence anteriorly (at the front). Posteriorly, the potential problems are related to the overgrowth of bone (osteophytes) which can narrow the spinal canal and cause spinal cord compression. More commonly, the nerve root canal is narrowed and causes nerve root compression. Trauma Trauma may be applied to the cervical spine either as an acceleration or deceleration of the head in relation to the body, causing extremely rapid flexion or extension of the neck, or less commonly, lateral deviation or rotation. While the details of mechanics are poorly understood, it is considered that the application of forces to the discs at very rapid rates causes internal damage. With increasing degrees of force, crush fracture of vertebral bodies occurs. A blow or impact to the head leading to forced hyperflexion or hyperextension as in driving injuries can lead to cervical spine damage and typically is the type of injury which causes fracture dislocation of the cervical spine. If the dislocation is sufficiently severe, or if pre-existing congenital or degenerative causes have narrowed the cervical spinal canal, then spinal cord damage may occur, leading to quadriparesis or quadriplegia. An axial blow to the head that is, force directed from the top of the head straight down the body or conversely, a fall on the buttocks leading to spinal compression, can inflict damage to cervical discs or cervical vertebrae."
6. It ought be apparent from the description of the injury given by the plaintiff in his affidavit, which I have earlier quoted, that he had both an axial blow to his head when his head hit the roof of the police vehicle, as well as the typical whiplash injury of acceleration and deceleration. The point is that cervical spondylosis is the process of the degeneration of the discs, which cannot be shown on, for example, plain X-ray, but which leads eventually to osteophytosis, that is, the bony overgrowth which can be shown on plain X-ray and more advanced forms of imaging. It is also clear from that work that degeneration is part of the ageing process, but it can both be initiated by trauma or made worse by trauma.
7. It is clear that the view of Dr Vote was that the plaintiff's cervical degenerative disease pre-existed the event of 1 January 1998 but was made significantly worse by that event, that is, there was a significant "aggravation" using the terminology taken from the Workers Compensation Act 1987. One of the problems which arises in this case is whether that opinion be correct.

Injury or disease?

1. The plaintiff came again under the care of Dr Diwan. Doctor Diwan proposes the surgery which is the subject of these proceedings. Doctor Diwan's thesis is that the plaintiff's condition was not merely made worse by the event of 1 January 1998, but was in fact precipitated by it. That is, it is caused by the event of 1 January 1998 and there was no pre-existing condition or abnormality. For example, in chief, he gave this evidence: "Q. What is the surgery that you would look to perform, assuming Mr Perrin is to go ahead? A. My apologies, because there's a lot of confusion in terms of the level and type of surgeries, as the situation evolved over the years, and as I kept on seeing him, and that is not uncommon in clinical practice, as we keep on reviewing more data, we do make those sort of decisions. First time when I saw him in 2002 it was my understanding that, if my notes say correctly, it was the C6-7 which was the affected one, and subsequently I referenced to my - to Dr James Vote's notes where he had noticed that he had significant recurrence at C5-C6 level, and subsequently we also noticed that he had a small issue at C3-4 which may or may not be of surgical importance, but it is still there. So taking into consideration, and also taking into consideration our experience that the most commonest level that we operate on in the cervical spine is between C5 to C7, and where those are the two levels where there is evidence of compression of the nerve roots. I thought it would be reasonable that the C5-6 and C6-7 would be addressed." I have probably quoted more extensively than I needed to. The important thing to note is that Dr Diwan was of the view that the C6-7 was "the affected one", by which he might mean the most affected one, or that it was the primarily affected one. At p 40, commencing at line 10, the doctor gave this evidence: "Q. Does the surgery have any part to play in terms of the future development of symptoms that Mr Perrin may experience? A. That's, that's a very interesting question, and this is something that has been, you know, of, of concern to a lot of clinicians like me, as to whether if one disc is injured - whether that can lead to progressive degeneration not just at that level but at levels above, and his case is a great example of one of those situations happening, that initially he presented with C6-7 and over this decade and a bit what we have seen is that his - discs higher up are consistently degenerating. What we don't know is, if we fix these problems, whether we will get rid of any degenerations at the higher level, but my thinking and my understanding with all the data that we have, with the cadaveric testing and all, is that it is most likely to help and to slow down that process for him." What the doctor, in my view, is there saying is that the plaintiff initially injured C6-7 disc and as it started to degenerate the levels above it started to degenerate, so that the plaintiff now has degenerative disc disease or cervical spondylosis at higher levels of the spine.
2. In cross-examination on p 48 the doctor was, in essence, asked to say whether there had been any deterioration in the period that he had not been seeing the plaintiff, that is, between when he initially saw the plaintiff in 2002 and when he started seeing him again in 2012. The doctor was asked to comment on one specific change noted in the radiological appearances over that period of time. The answer recorded is this: "That's a very, very good question, and one of the answers that we are debating among circles that we get concern about these things is in situations where you have one disc injury, let us say in this instance we have the C6-7, so that segment effectively is not moving properly, and there are loads and all the shared efforts that go on being taken up by the disc above, and that subsequently leads to degeneration or injury to that disc, and, and this sort of test gives us evidence to that thinking that we currently have, so it is a sort of domino effect, just as we argued that if we fuse one disc then there is detrimental effect at the level above to the level below. Similarly, if you injure a disc - the mechanics of that disc are significantly disturbed, and this is what we are seeing in this situation and that's why we have C5-6." At p 52 the doctor was asked a question about the degenerative process. He retorted that it was "the progressive process of injury". At p 75, line 46, the doctor expressed the view that the problem at C5-6 was a consequence of instability or destabilisation at C6-7. At p 76, line 6, this question is recorded: "Q. You couldn't say, in light of the history that you now know to be the case, that whatever surgery you perform, should you perform surgery at some stage, is a result of what happened in 1998, on 1 January 1998?" There was then an objection. Mr Stanton for the defendant returned to the question at p 79, line 22: "Q. Do you remember the question, or not? I can probably have another crack at it. A. I think what you asked me was that whether it will be very whether I will be very confident to say the injury of 1998 is the consequence of yeah, is, is, is the reason why he will end up having surgery. And, and that, that's very difficult to say that. You know, as a, as a physician I can say what I can HIS HONOUR Q. You can only provide an opinion based upon a number of things, which include history, the correctness of the history, the investigations over the years, the clinical findings. But, I mean, when we're divorced and we're looking at 2015, we will have been divorced for 17 or 18 years since the event, it's all reconstruction based upon what records there are and what it appears there have been from time to time and their accuracy and the reliability of the patient? A. Exactly, your Honour, thanks for that guidance. So, what I do in my practice is I just take what my patients say at face value and if Mr Perrin says that his arm pain and neck pain arose from a certain accident and since then, you know, stone work or T boning or, you know, rock fishing or hitting his head against a wall, whatever the consequences were, if they keep on leading to the same set of symptoms and there is a progression of degeneration at multiple other levels, what I take it as, that it is the initial problem that I'm still treating and that and that is constantly aggravated. And I just offer him treatment there. And to start getting down to the specifics, whether C5-C6 was the one which happened in 1998 because it did, because we saw the evidence in 2003, do these things, again, using the word, you know, we continue to agonise as to whether it would have happened had the C6-7 not been compromised to begin with. Maybe yes, maybe no, we don't know because it's kind of happened without any precipitating event. The precipitating event happened in 2002 and then I saw him and only saw C6-7 being involved. Then he goes away, has no other event, comes back in 2003 with C5-6 involvement. So the question I ask in my own mind is whether it is a consequence of the C6-7 not doing what it's supposed to do and C5-6 taking the load and hence progressing or accelerating at that level."
3. While Dr Diwan did not express himself succinctly, it is clear to me on reading his evidence, after having listened to it, that his thesis is that in the event of 1 September 1998 the plaintiff suffered some insult or injury to the C6-7 disc which became degenerative and as it became degenerative, it initiated or hastened degeneration at higher levels of the cervical spine, leading to a progressively worsening degenerative condition in the plaintiff's neck. In other words, the doctor would attribute the whole of the plaintiff's current cervical problem to the event of 1 January 1998. Such things can usually be determined fairly easily. If, for example, a plain X-ray was taken very shortly after the event of 1 January 1998, it might or might not show cervical spondylosis. If it did, within a day or two or a week or two of the incident, then one would think that the cervical spondylosis pre-existed the event and the only diagnosis available would then be aggravation, acceleration, exacerbation or deterioration of pre-existing cervical spondylosis. For any bony reactive change to show up on X-ray, months must pass by. The evidence I have heard repeatedly in cases of a like nature tells me it might take up to six months for reactive bony changes to show up on X-ray. However, here I have an injury of 1 January 1998 and no radiological investigation until 2002. Therefore to a large extent I am dependent upon the opinions of the various medical practitioners.
4. However, some guidance is expressed by Dr Diwan otherwise. As I understand Dr Diwan's evidence, he believed the plaintiff was too young at the time of the incident of 1 January 1998 to suffer from cervical spondylosis. I again point out that as at that date the plaintiff was 32 and a half years old. At p 49, line 26, Mr Stanton asked Dr Diwan whether it was the natural history of degeneration that it advance with age. He answered in the affirmative and then qualified that with this evidence: "A. The question that we start asking then is, how old was he in 2003? He was 39, maybe 38 years old, and that is slightly on the younger side to be labelling somebody as being degenerative, so one of the things we think is that if you have sustained as a young person an injury, that rapidly increases the rate at which things can degenerate, so one of the examples that we give our students is that running itself does not cause degeneration of the knee, but if you have a meniscus tear then you're more likely to degenerate in the knee much quicker, so, so if you use that same, same sort of simplification, over simplification in this situation HIS HONOUR Q. You're more likely to have a meniscus tear if you do a lot of running? A. No, if you're, if you're doing twisting injuries, maybe. STANTON Q. But even if you don't have the tear, the fact is that if you run for an extended period of time, because you're using the knee on a regular basis, that's the sort of wear and tear that can produce knee pathology. Correct? A. It can, sorry." The doctor, in referring to 2003, was referring to the fact that he had first seen the plaintiff on 15 October 2002, ordered an MRI scan and then saw the plaintiff on 13 January 2003. Of course, the injury or injurious event relied upon by the plaintiff, that of 1 January 1998, was five years earlier. As I said, he was 32 and a half years old at the time. If Dr Diwan was of the view that at the age of 38 or 39 a person was "slightly on the younger side" to be labelled as having a degenerative condition, a fortiori, he was on the younger side of such a label at an earlier age. In other words, as I understand Dr Diwan's evidence, he was of the view that the plaintiff was too young to be suffering from a pre-existing degenerative condition when he was involved in the event of 1 January 1998. Age therefore was on the side of the plaintiff's case.
5. I now turn to consider other opinions about this issue. On 21 May 2009 the plaintiff was seen again by Dr James Vote. On this occasion Dr Vote was seeing him for the New South Wales Police Force, that is, for the Commissioner of Police. On this occasion Dr Vote expressed the view that the event of 1 January 1998 was "significant in the genesis of his current problem." He then continued thus: "He appears to have had no problems prior to that and persistent problems with his neck ever since." That to me is a different opinion to the opinion that the plaintiff's condition was pre-existing and was merely the subject of an aggravation.
6. On 29 June 2010 the plaintiff was seen by Dr Michael Fearnside, a neurological surgeon, at the request of his solicitors. In his opinion he expressed the view that, as a result of the motor vehicle accident of 1 January 1998, the plaintiff aggravated cervical spondylosis. However, he then states in a later section of the same part of his report, that the plaintiff was not able to give him a history of any injuries which contributed to the cervical spondylosis prior to the injury of 1 January 1998. He assessed permanent impairment of the neck as being 10%. He then said this: "There are no radiological reports or films around the time of the injury in 1998 and Mr Perrin has no previous history of neck pain. A deductible proportion has therefore not been applied." In assessing lump sum impairment under s 66 of the Workers Compensation Act 1987 it is necessary to adjust any permanent impairment for any pre-existing abnormality. In not making any deductible proportion, Dr Fearnside is in essence saying that there is no pre-existing condition. I'm afraid that Dr Fearnside is a little bit like Dr Vote in having "a bob each way". It took Dr Vote two reports to have a bob each way; it only took Dr Fearnside one.
7. Doctor Michael Davies, a neurosurgeon, saw the plaintiff for the defendant's agent. He saw the plaintiff on 25 May 2011. He diagnosed the event of 1 January 1998 as being an aggravation of pre-existing degenerative changes in the neck. Later in the report, however, he said this: "The earliest X-ray reports available to me relate to X-rays performed more than four years after the injury. Whilst his cervical X-rays and scans report spondylotic problems mostly at the C6-7 level, it is possible that the changes can have developed following the accident in January 1998. In the absence of any radiology to refute this, I make no deduction from his assessment of neck impairment in relation to pre-existing or underlying conditions." Like Dr Fearnside, he had diagnosed a 10% permanent impairment of the neck. Like Dr Fearnside he has a "bob each way".
8. Before me are also reports from Associate Professor Michael Ryan, an orthopaedic surgeon; Dr Raymond Schwartz, a neurologist; and Dr Hugh Jones, an orthopaedic surgeon, as well as further reports from other experts whose opinions I have discussed. However, none of those further reports deal with the issue which is currently before me. Importantly, neither Dr Vote, Dr Fearnside or Dr Davies disagree with the proposition contained in the evidence of Dr Diwan that the plaintiff at the age of 32 and a half was too young on the probabilities to be suffering from degenerative disc disease on a constitutional, idiopathic or genetic basis. I therefore have no hesitation in accepting Dr Diwan's position that at the time the plaintiff sustained injury to his neck on 1 January 1998 he was too young to be reasonably thought to have a degenerative condition in his cervical spine. Furthermore, the thesis of Dr Diwan is given credence by the radiological appearances themselves. Each clearly shows that the most affected level of the cervical spine is C6-7. It always has been. One can therefore easily accept that there was some initial problem at that level. Subsequent advances in degenerative changes at higher levels have been noted over the years, but they are still less at every other level. Therefore it ties in with Dr Diwan's thesis that originally the plaintiff injured the C6-7 disc and that has led to the extended cervical spondylosis at higher levels of the cervical spine.
9. In so finding I am acutely aware that I now know the plaintiff has degenerative disc disease in both the thoracic and the lumbar spines, but it is clear that in the lumbar spine the plaintiff has a spondylolisthesis at L5 on S1, which is almost invariably a constitutional condition which leads to degenerative disease in the lumbar spine. However, one regularly finds patients who have a degenerative condition in one level of the spine but not in another. I do not believe the finding I have made is inconsistent with the development of degenerative processes at other levels of the spine and it should be noted that the problems in the thoracic spine appear to be more just radiological problems rather than pathological problems, in the sense that the degenerative changes in the thoracic spine are not thought to be the cause of any symptoms or interfere in any particular way with the plaintiff's health.

Proposed operative treatment

1. I return then to the question of the operative treatment. The first suggestion of the need for operative treatment was not made by Dr Diwan but by Dr Vote. Doctor Vote made it in his report of 25 May 2009 following upon his examination of the plaintiff on 21 May 2009 on behalf of the New South Wales Police Department. The final paragraph of Dr Vote's report is this: "His treatment has largely been conservative, as outlined in the report. I reviewed his X-rays and his overall problem and feel he would be quite a good candidate for a surgical approach to his localised, quite severe degenerative spondylosis at C6-7." Doctor Vote wrote that report on the stationary of the Spine Service of the Department of Orthopaedic Surgery of the St George Hospital campus of the University of New South Wales. He is clearly a member of that "institution", if that be the correct terminology. On 4 April 2012 Dr Koutis wrote a referral letter to Dr Vote. He requested an opinion of and management for the plaintiff's neck condition and an advice on treatment. Doctor Vote saw the plaintiff on 14 May 2012. However, he wrote a report not to Dr Koutis but to Dr Viglione, who was the doctor who performed the carpal tunnel decompression probably a decade or more earlier. Doctor Vote said this: "He states that his neck is slightly getting worse and he is getting more and more problems in terms of pain and paraesthetic sensation in the left arm. I note that he had a cortisone injection into his cervical spine approximately four days ago, which does not seem to have benefitted him a great deal symptomatically. He states that he takes Endone almost daily. His general health would appear to be okay. His cervical spine exhibits quite good range of movement. In relation to his left arm, there is patchy paraesthesia, but power seems satisfactory. I have asked to see him with an MRI of his cervical spine to fully assess the problem. He does, of course, have a long history of cervical problem[s]."
2. An MRI scan was performed on 2 July 2012 and was reported upon by Dr Lynette Masters. That shows abnormalities between C3 and C7 but no abnormality at the C7-T1 level. Doctor Masters was of the view that the appearances at C3-4, C5-6 and C6-7 all showed "potential mass effect" on the exiting nerve roots. Dr Vote reviewed the plaintiff on 23 July following upon that X-ray. On this occasion Dr Vote sent a copy of the report to Dr Koutis as well as to Dr Viglione. Doctor Vote was of the opinion that the problems in the plaintiff's spine at C5-6 were most noticeable. He thought the plaintiff should consider surgery and Dr Vote, said that he would make an appointment for the plaintiff to see Dr Diwan. As I understand it, Dr Vote is a very distinguished and senior orthopaedic surgeon and probably no longer wields the scalpel: hence the referral on to Dr Diwan.
3. Doctor Diwan saw the plaintiff on 13 September 2012. By that stage Dr Diwan was told by the plaintiff that the symptoms in his left hand were eight out of ten. He noted that the plaintiff had exhausted all forms of non-operative treatment and was taking Endone to seek to control his pain. He reported that there was "altered sensation in the left dermatome" but did not state which dermatome was affected. He then looked at two MRI scans, that of 25 November 2002, which is exhibit J, and that of 8 July 2012, which is exhibit O. He noted that there had been definite progression of degeneration at both C5 C6 and C6-7. He also thought that there was a "small contained herniation" at C3-4. Doctor Diwan discussed the plaintiff's options with him. He then said this: "I think it now becomes reasonably necessary to consider surgical decompression and stabilisation by way of anterior cervical decompression and fusion at C6-7 and anterior cervical decompression and disc replacement at C5-6. I have briefly explained to him this operation. He is keen to proceed. By way of this letter my office will seek approval from his insurance carrier to proceed with surgery." On the following day, 14 September 2012, the "back office" of Dr Diwan sent a request to the agent of the defendant for approval to perform the surgery proposed by Dr Diwan, giving not only the type of surgery proposed, but also stating where the surgery would be performed (at the St George Private Hospital) the expected length of stay in the hospital (between three and five days) and the AMA billing codes.
4. On 4 October 2012 the defendant wrote to Dr Diwan requesting further information. The doctor's report in answer to that request is before me and answers the questions posed by the defendant. Unfortunately the report has not been dated. This undated report tells me that the plaintiff had failed all non-operative treatments suitable for his circumstances and expressed the view that there was a 75% to 85% chance of improvement generally following the surgery. The letter also outlines post-operative management.
5. On 14 December 2012 the defendant wrote to the plaintiff a letter, a copy of which is exhibit KK, declining to pay for the proposed surgery on the basis that it was "not considered reasonably necessary" because of the plaintiff's "workplace injury" and then referred to s 60 of the Workers Compensation Act 1987. The defendant did that based on an opinion expressed by Associate Professor Michael Ryan.
6. Professor Ryan examined the plaintiff on 27 November 2012. In his report the professor sets out his findings on examination of the plaintiff on 27 November 2002 and then merely expresses his opinion without providing any further heading. Those parts of Professor Ryan's report are these: "Mr Perrin is 172 centimetres tall, he weighs 86.5kg (Body Mass Index 27.5). Mr Perrin rates his right neck pain as greater than his left. I was able to elicit a left biceps reflex, right biceps reflex, both triceps and both brachioradialis reflexes were a flicker. Mr Perrin has got marked wasting of the right hand muscles, both thenar and hyperthenar eminences, as well as intrinsic. He has a mild left 'Main En Griffe' (claw hand). The clawing is confined to the little finger and slightly in the ring finger, which is suggestive of a high ulnar palsy. Mr Perrin's shoulder nerve is easily palpable as a thick band behind the medial epicondyle. Gentle percussion over this produces pain and paraesthesia in the left ulnar distribution. Mr Perrin's abdominal reflexes are intact... I was unable to elicit knee and ankle reflexes, possibly because of peripheral neuropathy. Mr Perrin's Babinski responses are both flexor. I am grateful for you sending me a copy of Dr Fearnside's assessment of Mr Perrin on 29 June 2010. At that assessment Dr Fearnside recorded 'neurological examination of the upper limbs revealed normal tone and power and no wasting. Reflexes were equal and symmetrical and sensation was intact.' On lower limb examination he found the knee reflexes were difficult to elicit but were present with reinforcement. The ankle reflexes were normal. He found no evidence of pain behaviour. It is clear that the condition of Mr Perrin's neurological state has deteriorated remarkably over two years. He now has a dense left sided ulnar neuropathy. I consider it unlikely that the signs in his hands are in any way related to his cervical spine. He may also have peripheral neuropathy in his lower limbs. The presence of abdominal reflexes and flexor Babinski responses are reassuring that he doesn't have any gross myelopathy. It is reasonable to conclude that Dr Diwan's proposed surgery is unlikely to help Mr Perrin. I have misgivings about the reliability of Dr Diwan's findings at clinical examination."
7. Doctor Diwan was asked to comment on Dr Ryan's opinion. He made these three comments: "[1] There will always be inter rater issues related to clinical signs. I have now reviewed Mr Perrin's charts and the dermatome where there is altered sensation is C8 on the left side [missing from my dictation] this corresponds to Professor Ryan's assessment and is consistent with his finding. Whether this is peripheral or central is another issue and may be worthwhile having the neurological assessment he suggests. In terms of our own assessment, we are confident of our findings as patient has been evaluated three times at Spine Service. [2] Indeed, Professor Ryan agrees that compared to Professor Fearnside's evaluation of 2010 there is deterioration in neurology. [3] I will appreciate receiving the neurologist's report." I initially thought that the word "inter rater" was a mistranscription of a word such as "interrelated" but on reflection it appears to be likely that the doctor was referring to issues between two different or more than two different persons rating the same set of clinical signs. In other words, he appears to be saying that opinions can sometimes differ about clinical findings. It is true that the ulnar distribution is the C8 dermatome. There is no issue about that. The C8 nerve root comes out between the seventh cervical vertebra and the first thoracic vertebra, that is, it is C7-T1. There has never been any suggestion that the plaintiff has any discal problem at C7-T1. There is no suggestion that there could be any entrapment of the C8 nerve root at the spinal level.
8. When I go back to Professor Ryan's report, it appears to me that when he refers to "Mr Perrin's shoulder nerve" he is in fact referring to the plaintiff's ulnar nerve and that is easily palpable as a thick band behind the medial epicondyle, that is, at the elbow, and gentle percussion of that nerve at the elbow causes pain and paraesthesia in the left ulnar distribution distally - that is, below the elbow - but not proximally - that is, above the elbow. I believe it to be quite misleading for Dr Diwan to refer to the dermatome as being C8 when it is really not a problem of the nerve root at the spine but of the nerve as it passes through the elbow, presumably at the cubital tunnel.
9. Probably because of the issue arising from the defendant's declining to pay for the surgery proposed by Dr Diwan, the defendant arranged for the plaintiff to be seen by Dr Raymond Schwartz on 15 April 2013. As earlier mentioned, Dr Schwartz is a neurologist. I wish I had the time to quote Dr Schwartz's clinical findings in full but I do not. After his initial examination on 15 April, Dr Schwartz expressed this view: "My initial clinical impression was that Mr Perrin's symptoms were likely to be multi factorial, related to: (1) degenerative cervical disease exacerbated by trauma; (2) entrapment neuropathies in the upper limbs; and (3) a diabetic neuropathy." He arranged for neurophysiological studies and for the plaintiff to return, after they had been performed, with his various MRI scans. Dr Schwartz reviewed Mr Perrin on 30 May. His report continues thus: "His neurophysiological studies revealed: (1) ulnar neuropathy at the level of the elbow to a moderate degree on the left and a mild degree on the right; (2) mild median nerve dysfunction at the level of the wrist on the right consistent with carpal tunnel syndrome; and (3) a mild left C6-7 radiculopathy. To my surprise, there was no evidence of a generalised neuropathy mindful of Mr Scott's longstanding history of diabetes mellitus and some diminished sensation to vibration distally on clinical examination." Dr Schwartz proposed a different plan of treatment. His plan of treatment involved this: "(1) a trans foraminal rather than facet joint injection of cortisone given the radicular nature of [the plaintiff's] symptoms; (2) core and proximal muscle strengthening to improve posture; and (3) repeat neurophysiological studies in three to four months' time to monitor the progress of [the plaintiff's] ulnar neuropathies and ensure that they are not worsening." For the first of those treatments Dr Schwartz recommended referral to Dr Bill Clark. None of that treatment has actually occurred and it could not because Dr Schwartz was not a treating doctor. The doctor proposed a number of different causes for the entrapment neuropathies but I do not need to consider possible causes because none of them is alleged to be in any way related to anything that happened to the plaintiff in the course of his service as a member of the New South Wales Police Force. He then expressed the view that he did not believe that there was sufficient evidence on neurological examination to warrant the surgery proposed by Dr Diwan and Dr Schwartz agreed with Dr Ryan that the proposed surgery was unlikely to help the plaintiff. The doctor then expressed this view: "It is difficult to prognosticate regarding Mr Perrin's current condition. With regard to his degenerative cervical disease, I suspect that this will slowly progress and cause him problems from time to time but this is not an uncommon problem and can largely be managed conservatively for the foreseeable future, if not indefinitely; the ulnar neuropathies will need to be judged on their own merits in the passage of time with repeat neurophysiological studies as outlined previously."
10. On 16 July 2013 Dr Diwan issued a comment on what he had read. He saw opinions from Dr Schwartz and Dr Ryan and pointed out that they did not take into account the input of Dr Vote or the input of Dr Viglione, but there is no evidence of any input from Dr Viglione at all. The note is largely defensive. However, in it Dr Diwan did think there was merit in Dr Schwartz's assertions about the peripheral neuropathy and I infer that he thought that Dr Schwartz's suggestions that there should be repeat neurophysiological studies in due course should be attended to. The doctor then said this: "However, he completely fails to account for his pain, axial in nature." I assume by that the doctor meant that he thought the plaintiff's pain was mediated from the spine rather than mediated by some local entrapment.
11. The plaintiff's solicitors then became involved in organising opinions. They qualified Dr Michael Davies, neurosurgeon. Doctor Davies had previously seen the plaintiff for the defendant. Nevertheless, he was happy to see the plaintiff at the request of his own solicitors! Doctor Davies saw the plaintiff on 23 December 2013. Doctor Davies' history as to the plaintiff's progress is this: "Mr Perrin reports ongoing neck and shoulder pain and symptoms in the upper limbs, which he said are gradually worsening over time. He feels that he's losing strength in his upper limbs, particularly the left upper limb. He currently describes pain around the left posterolateral aspect of the head and neck that radiates into the left shoulder and to a point about midway between the shoulder and the elbow. He gets intermittent shooting pain along the ulnar aspect of the left forearm and also along the dorsal aspect of the left forearm. He gets clawing of the second and fifth fingers of the left hand at times. Over the last 12 months or so he has noticed intermittent clawing of the third to fifth fingers in the right hand. He reports numbness in both hands and intermittent numbness along the ulnar aspect of the left forearm. He told me that he recently burnt his left hand because he could not tell how hot the water was in the shower. He has difficulty opening jars, turning door handles and turning taps with his hands. Mr Perrin tries to avoid moving his neck too much because this exacerbates his pain." I interpolate my own views following upon that description of the plaintiff's symptoms. Clearly neck pain radiating into the shoulders and upper arms can be mediated by problems in the spine. Problems in the forearms and hands in the distribution of the ulnar nerve are more likely caused by local ulnar neuropathies at the elbows. However, those neuropathies do not explain, for example, pain along the dorsal aspect of the left forearm, nor would it explain numbness or a lack of sensational feeling in all of the fingers of the hand, in particular the thumb, the ring and the long finger of each hand. Doctor Davies on this occasion found a number of neurological abnormalities on clinical examination. He found wasting of the supraspinatus muscles on each side, more pronounced on the left side. To me that smacks of a neck problem.
12. He also found wasting of the intrinsic muscles of the left hand, including the thenar and the hypothenar eminence, which to me seems to suggest an ulnar problem. He noted a lesser degree of wasting of the right thenar eminence, again suggesting to me an ulnar problem. He also found that the left triceps reflex was absent, again, a problem noticed back in 2002 and clearly related to the neck problem. There were positive Tinel's sign for the ulnar nerve at each elbow and over the median nerve at the right wrist, indicating local entrapments at each elbow and at the right wrist. The doctor thought that sensory examination was difficult to interpret, as there appeared to be fairly widespread impairment of point sensation in both upper limbs, which did not fit any clear dermatomal or peripheral nerve distribution. That could be quite explicable by the fact that there are a number of different conditions going on in the plaintiff's. Like Dr Schwartz, Dr Davies believed the plaintiff's upper limb symptoms were multi factorial. Doctor Davies on this occasion thought that further investigation should be carried out before a decision on surgery could be made. He appears to have accepted that the plaintiff had the ulnar neuropathies diagnosed by Dr Schwartz. He could not relate those to the injury of 1 January 1998 and there is no suggestion that they are so related.
13. Doctor Davies went on to express this view: "Mr Perrin needs further investigation to try to determine the relative contribution to his upper limb symptoms from the cervical spondylosis and ulnar neuropathy. It may be that he will need surgery both on his ulnar nerve and on his cervical spine to treat his upper limb symptoms." Further in the report Dr Davies said that he did not disagree to any great extent with Dr Schwartz's assessment. He went on to agree specifically with Dr Schwartz's recommendation for trans-foraminal steroid injections which he thought would help to determine how much of the left upper limb symptoms arose from the cervical spine as opposed to ulnar nerve problem at the elbow.

ADJOURNED TO MONDAY 2 NOVEMBER 2015

1. HIS HONOUR: The next medical report before me, in chronological order, is one from Dr Diwan on 1 April 2014. In that report Dr Diwan makes some caustic remarks about the opinions, which had been obtained, concerning the surgery which he proposed. I do not need to deal with such comments. He obtained a history that the plaintiff's "neck symptoms" had, if anything, worsened. He followed that remark by saying the plaintiff's left hand had further wasted. After leaving aside Dr Diwan's comments on the opinions of others, the doctor went on to say this: "The major hallmark in today's examination was further wasting of the left hand muscles. His pain and other symptoms remained the same. I explained to Scott that whilst surgery remains a reasonably necessary option, he should consider both cervical spine as well as ulnar nerve release surgery. At this stage, before advising him any further, I have suggested he get a repeat MRI and X-ray performed and see me along with his new investigations when they are ready." It is clear to me that when the doctor initially referred to "neck symptoms" he was not referring to pain or the like in the neck itself but any symptoms that Dr Diwan thought were related to the plaintiff's cervical condition which included, in his view, a wasting of the left hand musculature. The last paragraph of the doctors' report is this: "...I and Scott discussed his various treatment options. I explained that I have taken into account the suggestion about transforaminal epidural steroid. However, the complication rates of these injections are much higher than simple facet injections so these injections are being performed in the lumbar spine. I routinely do not suggest that these be performed. Further, as his muscle wasting is quite outstanding, I think he will benefit more with an MRI of the neck along with an MRI of his elbows." It would appear that by this time Dr Diwan was concerned about the plaintiff's symptoms being due, at least in part, to ulnar neuropathies at each elbow.
2. Doctor Diwan then organised a number of further investigations. The first was a plain X-ray of the cervical spine made on 24 April 2014. On 26 April 2014 there was an MRI of the left elbow and on 1 May 2014 there was an MRI of the cervical spine and an MRI of the right elbow. The MRI of the left elbow was summed up by the radiologist, Dr Hemi Williams, thus: "A mild increase in ulnar nerve T2 signal within the cubital tunnel and an increase in T2 signal in adjacent surrounding soft tissues indicative of mild inflammation and mild chronic ulnar neuritis." The MRI of the right elbow was reported by the radiologist Dr Jeff Kuan, thus: "There is mild thickening with T2 by signal change of the ulnar nerve suggesting of ulnar neuropathy. There is no significant neural compression within the cubital tunnel. There is no significant OA [osteoarthritis]. There is tendinosis of the common extensor origin." In essence, what those two investigations show is local pathology in each elbow affecting the ulnar nerve. The MRI of the neck was also reported by Dr Kuan. His summary of it is this: "There are significant spondylitic changes from C3-4 to C6-7 resulting in multilevel foraminal narrowing. There is a mild of canal stenosis at C5-6. There is a small central disc protrusion at C4-5. There is no abnormal cord signal." One might think from reading that comment that the plaintiff's major problems in the cervical spine were at C4-5 and C5-6 whereas heretofore the major problem was always reported as being at C6-7. However, in the body of the report itself, Dr Kuan discussed the disc desiccation at C6-7 as being "moderate" whereas at C4-5 and C5-6 it was only "mild" but he thought it was again "moderate" at C3-4.
3. Little can be gained merely by reading the MRI reports when they have been made by different radiologists. In cases of this nature, the Court is often best assisted by the opinion of one expert radiologist who was able to see all the radiological investigations taken over a period of time and assess them for the same pathology and assess them using the same verbiage so that one knows if there is any particular special development at any one time.
4. The plaintiff was reviewed by Dr Diwan on 13 May 2014 following upon those investigations. He believed that the plaintiff's cervical investigations showed "progressive degenerative changes" but he also believed that the MRI scans of the ulnar nerve, presumably on each side, also showed evidence of inflammatory changes. He then said this: "Taken together, I think when Scott comes to surgical reconstruction, apart from addressing the ulnar nerve issue for which I am referring him to our elbow surgeon Dr Hugh Jones, I think he will require two level cervical spine column decompression and stabilisation. A combination of disc replacement can be offered him at C3-4 and C5-6 levels. Further, I have suggested to Scott that the previous advice he has received about epidural steroid should not be executed as there is a recent FDA warning about this procedure which causes extremely serious side effects in a lot of patients." On the same day Dr Diwan's "back office" generated another request for approval of cervical spine surgery but that request was for operative treatment at C3-4 and C6-7, albeit on the same day the doctor recommended decompression at C3-4 and C5-6. It is to be recalled that earlier what the doctor had proposed was surgery at C5-6 and C6-7. In his evidence, Dr Diwan said that there had been a mistake made and he always proposed surgery at C5-6 and C6-7. It is unfortunate that the doctor has not checked his records from time to time but the confusion might arise from the fact that there is really no localising sign; that is, any particular objective sign, which might indicate which disc level or the levels of which discs might be causing radicular symptoms as well as pain in the plaintiff's neck.
5. The next report before me in chronological order is one made by Dr Diwan for the plaintiff's solicitors on 25 June 2014, to which he appends an article, "Complications of Cervical Transforaminal Epidural Steroid Injections", published in an American journal. In essence, the doctor sets his face against cervical transforaminal epidural steroid injections and does not believe that they should be provided to patients any longer. Fortunately, I need not enter into that debate because the parties have not asked me to, but it is clear that the plaintiff has taken the advice of Dr Diwan and will not have such injections. However, the plaintiff is prepared to undergo, as I understand it, facet block injections and that was discussed by Dr Diwan in his evidence on 31 July 2015 commencing at p 65. The purpose of facet block injections is to seek to ascertain at which precise level or levels of the cervical spine the plaintiff's symptoms arise and in order to alleviate those symptoms. The doctor said that besides their potential therapeutic effect and their potential diagnostic effect they would buy the plaintiff "some more time 'till his getting all his other issues resolved", by which I believe the doctor was really referring to the outcome of present application. The evidence is silent as to whether those injections have been performed because as I understand one statement made to me from the Bar table, in essence, the defendant has refused much of the treatment proposed by Dr Diwan.
6. The next report before me is one from Professor Ryan of 4 August 2014, providing his comments following his reading of the report of Dr Schwartz. It appears that Professor Ryan was of the view that Dr Schwartz really confirmed his view that the plaintiff's symptoms were largely the result of local ulnar pathology in the plaintiff's arms. At the end of his comment on Dr Schwartz's assessment, Professor Ryan said this: "The fact that Mr Perrin's left ulnar nerve is easily palpable and has a thick band behind the medial epicondyle, when I examined in 2012 suggested that the changes were already well established. It may be associated with a mutation in one copy of the gene PMP22 (peripheral myelin protein). As a result of this, the nerves are poorly insulated and this results in symptoms. From my point of view, the fact that the left ulnar nerve appears to be thickened may be associated with hypertrophic neuropathy, acromegaly, Guillain-Barre Syndrome, amyloid or leprosy. It is also associated with diabetes. Perhaps the last of these is the explanation for that physical sign." Professor Ryan was then asked whether the plaintiff's signs were "multifactorial." The doctor agreed with that proposition, a proposition stemming directly from Dr Schwartz's findings, but in Professor Ryan's view the problems were "chiefly peripheral" and not related to the spine. I assume that the adverb "chiefly" qualifies "not related" as well as "peripheral." However, a few lines later the doctor said that he did not believe that when he examined the plaintiff in December 2012 the plaintiff's symptoms were "radicular."
7. A large part of the report is then concerned with Dr Diwan's comments about transforaminal epidural steroid injections. Professor Ryan referred to Dr Diwan's comments on that subject as a "polemic." However, in essence, Professor Ryan agrees with Dr Diwan. Nothing turns on that. Finally, Professor Ryan again expressed the view that it was unlikely that the cervical surgery opposed by Dr Diwan would give relief to the plaintiff's arm dysfunction. He went on to say this: "A local study concerning the outcome of anterior discectomy and spinal fusion comparing workers' compensation and non-compensable patients was published in 2001, Journal of Clinical Neuroscience Volume 8; No 2; p 124 125. Dr Ralph Mobbs, Consultant Neurosurgeon at Prince of Wales Hospital, was the chief author. The study found that workers' compensation and third party claimants had excellent outcomes in 65% and 69% respectively, whereas patients not receiving compensation had an excellent rating of 79%. The poor outcome, defined by Odom's criteria, the highest in the workers' compensation group 9% and lower in third party payments 4% and the non compensable group 5%. The fact that Mr Perrin continues to smoke (report of Dr Schwartz 3 July 2013) reduces the theoretical chance of the C6-7 level might fuse. I would not offer Mr Perrin's final surgery as there is no pressing neurological reason to do so." The significance of the epidemiological numbers provided by Professor Ryan really plays no part in the current matter and it is difficult for me to understand why Professor Ryan included it other than as a make weight to his primary argument, which in my view is not to be so weighted. As far as smoking is concerned, I do not know Mr Perrin's current status. I know he has sought to stop smoking at various times because it is recorded in Dr Koutis's notes. However, it may well be, if the plaintiff still smokes, that he might be persuaded by his medical advisers to give up the habit in order to maximise the chance of the proposed fusion at C6-7 being successful.
8. The next report is one from Dr Michael Davies, bearing date 1 December 2014, following upon his review of the plaintiff on that day. This third review by Dr Davies was at the second request of the plaintiff's solicitors. Doctor Davies obtained a history of the plaintiff's neck pain worsening over the preceding year. At the time of re-examining the plaintiff on 1 December 2014 Dr Davies thought that the surgery then proposed by Dr Diwan was at the C3-4 and C6-7. As at 1 December 2014 the plaintiff was taking one Endone tablet each morning and 20 milligrams of OxyContin, also an opiate based medication, at night, as well as Valium at night. Doctor Davies joined in the debate about the administration of transforaminal epidural steroid injections, he still favoured them and thought Dr Diwan was "somewhat overstating the risk" of their causing complications. From my reading of the literature provided by Dr Diwan I sympathise, in that regard, with Dr Davies. However, as the plaintiff does not wish to undergo them, on Dr Diwan's advice, Dr Davies conceded that it was not appropriate to insist on their being performed. One of the questions asked of Dr Davies on this occasion is whether he disagreed or not with the opinion previously expressed by Dr Schwartz. On this occasion, as he had on the last occasion, Dr Davies did not. However, as I read the doctor's report, he appears to come to the view that because the plaintiff's symptoms have persisted for so long, it might be prudent to permit the surgery proposed by Dr Diwan to occur.
9. On 4 December 2014 the plaintiff saw Dr Hugh Jones. One will recall that on 13 May 2014 Dr Diwan said that he was going to refer the plaintiff to Dr Jones. Almost seven months is a long time to wait for an examination by a doctor in the same practice, that is, the orthopaedic practice at the St George Hospital. Doctor Jones' report is not addressed to Dr Diwan but to Dr Koutis, the plaintiff's general practitioner. A copy of it has sent to the "insurer", meaning the agent of the defendant. The report itself indicates to me that it was not made on referral by Dr Diwan but on referral by Dr Koutis. Doctor Koutis noted that the plaintiff had undergone nerve conduction studies but they were not available to him. It is unfortunate that no one provided to Dr Jones Dr Schwartz's report of mid-2013. Doctor Jones saw the MRI scans of the plaintiff's cervical spine but importantly did not see the MRI scans of the left elbow made on 24 April 2014 and of the right elbow made on 1 May 2014, which would be of very great utility to an orthopaedic surgeon specialising in elbow surgery. Furthermore, Dr Diwan appears to have believed that after referring the plaintiff to Dr Jones they would have a discussion as to the best way of treating the plaintiff. Such discussion has never occurred despite the fact that Dr Diwan and Dr Jones regularly attend a weekly meeting of the orthopaedic surgeons at the St George Hospital. Until he was shown Dr Jones' report of 4 December 2014, Dr Diwan was unaware of any examination of the plaintiff by Dr Jones.
10. With the utmost respect to Dr Diwan and those other medical practitioners who are treating the plaintiff, it appears that everything has been put "on hold" pending the outcome of the current proceedings. It appears to me that if Dr Diwan had directly referred the plaintiff to Dr Jones he could have provided Dr Jones with Dr Schwartz's report and provided to him a copy of the MRI scans of each elbow and that once the plaintiff had been examined by Dr Jones, they could confer and decide on the best way forward for the plaintiff. Dr Jones' report of 4 December 2014 ends with his wishing to obtain the plaintiff's nerve conduction studies in order to discuss the matter with Dr Diwan but that clearly has never occurred.
11. In the interim, Dr Koutis has ordered further radiological investigations. On 4 February 2015 there was an X-ray of the full spine, which appears to be more concerned with the lumbar spine than the cervical spine. On 4 February 2015 there was also a whole body scan with tomography, which is said to show moderate C3-4 discovertebral arthritis and mild C6-7 discovertebral arthritis. Perhaps another formulation of surgery, which needs to be considered by Dr Diwan, is of C3-4 surgery plus C6-7 surgery.
12. Because it is a relevant consideration there is, amongst the material before me, an assessment of the cost of the proposed treatment which bears date 23 March 2015. The document provides a quote for "C5-C6 cervical disc replacement with C6-6 anterior decompression fusion", as recommended by Dr Diwan in 2012. The reference to "C6-6" is clearly a reference to C6-7. Looking at the material shown there, the costs amount to approximately $74,000 although there had been an earlier estimate of $80,000.
13. The next report before is from Professor Ryan of 13 May 2015. It points out inconsistencies, which I have pointed out thus far in these reasons. However, the doctor ends with the following observation: "In order to give a fair and balanced opinion about this, I need to know Mr Perrin's current clinical status, Dr Diwan's detailed clinical findings, what he hopes to achieve by each of these operations. Is he planning to treat neck pain, arm pain and/or neurological deficit and what outcome does he expect? In the absence of such information, I cannot provide a fair or balanced response to your questions."
14. There is then a letter from Dr Diwan of 15 May 2015, in which Dr Diwan says this: "The two matters that arise are the number of levels and which levels Mr Perrin needs to be operated on and the change in cost structure between my recommendations of 13 September 2012 and that of 13 May 2014. I had a chance to review the MRI report from 1 May 2014 and there are indications of involvement from C3 to C7 at all levels. My own notes from 13 May 2014 indicate that the two main levels with be C3-4 and potentially C5-6. Having said that, as there is multiple level involvement, one of the clinical freedom and surgical freedom that I need to be mandated with is to make the best decision on the table in the interest of the patient. The mandate I seek is to operate from C3-7 with the high possibility of excising those discs compressing all his nerves and fusing the entire segment versus doing hybrid reconstruction, which may require some segments to be fused and others replaced. The decision to replace a disc is taken during surgery and is dependent on what level of mobilisation can be achieved for the segment and whether the bone stock and implants are well maintained to achieve a good disc replacement. The overall outcomes of fusion versus disc replacement for multiple level disc disease, as in the case of Mr Perrin, is not very different. I notice that the lawyers for Allianz Australia have asked what sort of prosthesis I will be using. I usually use the ProDisc cervical prosthesis or comparative [sic, scil. comparable] prosthesis, which is usually in the cost range of about $6,000 to $7,000 per prosthesis. The Bryan and Prestige prosthesis and Discover prosthesis cost about $12,000 odd and do not provide any superior outcome. Overall, the cost of multiple level fusions, whether it is the fusion versus replacement with a disc, works out to be the same for the payer. The surgeon's fee does not change for a three level versus a four level reconstruction. I will have my office prepare an appropriate quote and send it along to you." It is the "mandate" outlined in that letter that Dr Diwan sought in his oral evidence before me. It appears to me, as a layman, that the surgery proposed by Dr Diwan could be radical. He is seeking to operate between the C3 vertebra and the C7 vertebra at four discal levels, C3-4, C4-5, C5-6 and C6-7. Doctor Diwan proposes an anterior approach. In his evidence at p 38 he said this: "As to the nature of the operation, my proposition was to operate from in front; that is anterior, go through the neck, reach the disc, excise the disc, decompress the spinal cord and the nerves completely, and then leave him with spacers with either bone graft; that is, diffuse one level, or to leave him with an articulated device which is disc replacement at another level." However, it should be clear from the report which I have just quoted that although the initial proposal was to fuse C6-7 and insert a prosthetic disc in C5-6, the doctor might now be contemplating fusing the neck from C3 to C7 or perhaps fusing perhaps only C6-7 and inserting prosthetic discs at the three higher levels if he finds it necessary to decompress the higher levels. From what the doctor says about cost, it would appear that if it be necessary to insert prosthetic discs at three levels rather than one, the cost of the surgery might increase by about $15,000.
15. Professor Ryan then provided a further report bearing date 15 June 2015 following upon that last report from Dr Diwan. Professor Ryan thought the chance of surgery relieving the plaintiff's neck pain was "low." He then makes certain comments about the cost of the surgery, which I do not need to consider. He then expressed the view that there was no reason to perform C3-4 discectomy and spinal fusion because there is no evidence of any compressive neuropathy of the C4 nerve root. The doctor then went on to point out that it was possible that the deterioration, which was occurring in Mr Perrin's symptoms, was caused merely by "ageing." He pointed out that that is the natural history of spinal pathology in all individuals. That appears to me to be based on an assumption that the cervical spondylosis is a constitutional or idiopathic condition and not something that has been triggered off by trauma, as is the finding I have earlier made. The doctor then entered on to the debate about the nature of the injections proposed. Again, he is in Dr Diwan's camp in this regard but again, he thought that the facet joint injections might be useful in identifying whether the plaintiff needed some form of radiofrequency neurotomy at a level of the cervical spine that might be causing symptoms.
16. The next report is another from Dr Diwan, which is undated but comments upon Professor Ryan's report of 15 June 2015. As I read the report of Dr Diwan, he really has mistaken the opinion that Professor Ryan has expressed. Professor Ryan's final comments, in a report of 15 July 2015, are these: "Dr Diwan now proposes to operate on four levels of Mr Perrin's cervical spine C3 to C7 based on his conclusion there is multiple level involvement which he does not define. He states some levels may need to be fused and others replaced. This is a technical matter, which is decided at the time of surgery. Dr Diwan does not give an explanation for his sudden and dramatic change of surgical plans. He does not actually state why he is doing the operation. He does not state what the expectations of surgery are. Whilst I acknowledge Mr Perrin's spinal canal is relatively narrow there is strong evidence that his upper limb neurological symptoms are as much related to trauma and entrapment neuropathy, and possibly diabetes, as they are to the size of his spinal canal. If he were seriously worried about the narrowing in Mr Perrin's canal it would be reasonable to perform a posterior decompression, an open door laminoplasty, or excision of the C4, 5 and 6 vertebral bodies and fusion with segmental (pelvic) bone graft. If the principal reason for him suggesting surgery is to relieve axial pain, then the chances of a favourable result are lower with a higher theoretical rate or [sic,? of] pseudarthrosis at fused levels and revision surgery. I agree with Dr Diwan that the overall outcome for a spinal fusion or disc replacement is not substantially different." The doctor then appended certain articles that had been requested of him. Whilst I have described the surgery by Dr Diwan as perhaps being "radical" I believe that the alternative surgery of excising three vertebrae to be even more radical. The reason given by Dr Diwan, in his evidence, to perform surgery was to relieve the plaintiff's pain. It was not because he had any particular belief that the plaintiff's spinal canal was too narrow.
17. At least it now becomes common ground between Professor Ryan and Dr Diwan that there is little difference between fusion and the insertion of a prosthetic disc. As Professor Ryan points out, that is a "technical matter" that can only be decided when the operation is taking place; that is, when the surgeon can view the disc in place and the surrounding tissues and ascertain whether the disc space should be fused or whether the surrounding tissue is adequate enough to take a prosthetic disc.

Consideration (1)

1. Doctor Diwan proposes the surgery because he believes it will ameliorate, if not obliterate, the plaintiff's pain. The plaintiff wishes to undergo surgery because he believes the advice that has been given to him by that the surgery has an 85% chance of abating his symptoms. That the plaintiff is prepared to undergo such radical surgery, to me, indicates that his pain is real and a source of major concern for him. No one would undergo such surgery for some medico-legal reason and there is nothing financially to be gained by the plaintiff in undergoing such surgery. The plaintiff has his hurt on duty pension being paid for him for total incapacity. He has been paid in the past lump sums pursuant to s 12D, being the equivalent for permanent impairment of the back and neck under s 66 of the Workers Compensation Act 1987. He may have some further entitlement under s 66 and perhaps under s 67 of that Act but that in the grand scheme of things is not of sufficient size to warrant undergoing such radical surgery.

Reasonably necessary medical treatment

1. The leading case for the purpose of determining what is reasonably necessary medical treatment is Rose v Health Commission (NSW) (1986) 2 NSWCCR 32. That is a dissertation, if I may say so, of Burke CCJ, full of the usual learning one expected of his Honour. Commencing at p 47, his Honour said this: "In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated: 1. Prima facie, if the treatment falls within the definition of medical treatment in s 10(2) [of the Workers Compensation Act 1926] it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by or at the direction of a medical practitioner or consists of the supply of medicines or medical supplies is such treatment. 2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act. 3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury. 4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding on the facts as it finds them that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker. 5. In so deciding the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition."
2. Burke CCJ returned to the issue of determining whether the proposed treatment was reasonably necessary as a result of injury in Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264. The applicant in that matter was the late Jon Blake, an actor, who was one of the principal figures in the movie The Lighthorsemen and sustained catastrophic injury in a motor vehicle accident in December 1986. Commencing at p 272 his Honour said this: "PRINCIPLE The criteria for determining whether treatment was reasonably necessary were considered in Rose v Health Commission of NSW, Compensation Court, No. 9237/82, Burke J, 4 July 1986, unreported. During the appeal, counsel were referred to the judgment. There being no reports of decisions of this Court (or the Workers' Compensation Commission) after 1979 they were not aware of it. The only formal dissent expressed by Nicholas QC was to one of a series of tabulated conclusions which suggested: '3. Any necessity for relevant treatment results from injury where its purpose and potential effect is to alleviate the consequences of injury.' Nicholas QC emphasised that the appellant did not concede that the capacity to alleviate meant the treatment was reasonably necessary. The gravamen of the statement was not intended to suggest such. It proposed merely that if it were granted that a particular treatment was reasonably necessary then the "results from" test would be satisfied if the treatment was directed to alleviating the effects of the work injury. The determination of reasonable necessity required consideration of a variety of other factors. Those other factors were suggested to include consideration of: • APPROPRIATENESS • ALTERNATIVES • COST • EFFECTIVENESS • ACCEPTANCE. There is a deal of overlapping and each factor is not separate and distinct. Briefly the scope of these criteria was suggested to be as follows: APPROPRIATENESS It was suggested that all medical treatment was purposive. It sought to mitigate the effects of injury; sometimes to cure; sometimes to alleviate; sometimes to merely sustain status quo; sometimes merely to retard accepted progressive deterioration. If a particular regime lacked the capacity to achieve these aims it was inappropriate. ALTERNATIVES Consideration of other avenues of treatment was required in determining whether the particular form undertaken was reasonably necessary. If the treatment in question merely retarded progression of the consequences of injury and other treatments would cure the condition or substantially alleviate the problem it was incumbent to make the value judgment concerning necessity with this in mind. COST If various alternatives existed for treatment the relative costs were a factor to be evaluated. There must be some cost/benefit analysis. If a high cost, minimally effective regime had been instituted where a low cost, maximally effective alternative existed the former may well be adjudged not reasonably necessary. Even where but one avenue of possible treatment existed it may be that its effectiveness was so minimal and its cost so great that it could not be considered reasonably necessary. EFFECTIVENESS Implicitly in what was just stated, the degree to which the treatment could alleviate the consequences of injury was a factor in assessing its necessity. ACCEPTANCE Acceptance of a particular regime of treatment by the medical profession was to be considered. Treatment regarded as routine by the medical profession was unlikely to be considered other than reasonably necessary. The probabilities were otherwise where what was being considered was not a medically accepted regimen. Rose v Health Commission of NSW was such a case. Some substantial parts of the treatment undertaken there were rejected by a number of Royal Colleges, including those of Physicians, Psychiatrists and Pathologists, as having any sound medical bases. And, indeed, there had been minimal, if any, response by the patient apparent as a consequence of the treatment. In general it was suggested that a particular form of treatment would be regarded as reasonably necessary where prudent consideration of the various factors lead to the conclusion that such treatment should be afforded to the worker."
3. His Honour returned to this issue in Bartolo v Western Sydney Area Health Service (1997) 14 NSWCCR 233. The head note aptly sets out the background of the case: "The worker was grossly disabled as a result of a back injury and was awarded lump-sum payments under the Workers Compensation Act 1987 ('the Act'), ss 66 and 67, and weekly payments on the basis of total incapacity. She underwent comprehensive medical and hospital treatments to alleviate her condition, but still suffered unremitting pain and disability. She heard about a radiological investigation technique being performed in London using a 3D CAT procedure and spoke to her son's specialist - a paediatric neurologist - about it. That doctor made inquiries and referred the worker, at her request, to a London medical specialist who carried out the procedure on the worker at the Middlesex Hospital in London. The worker moved the Court to order her former employer to reimburse her the costs of the procedure and the associated travelling and maintenance costs under s 60(1) of the Act." The CT-scanning procedure is not now so novel that it can only be performed in London, as this case clearly establishes. At p 238 his Honour said this: "In Rose v Health Commission of NSW [1986] NSWCC 2; (1986) 2 NSWCCR 32, it was suggested that the gravamen of the phrase connoted necessity judged in accordance with reason, prudence, common sense and sound judgment. "Necessary" is the problem concept. It usually has connotations of something indispensable or imperative, something that cannot be done without. Yet that would seem a far too stringent test. In most illnesses or afflictions even simple analgesia could be done without. The patient could be more uncomfortable but would probably recover in much the same time span. It seems to me that the basic approach is really the reverse. The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary." The matter could have been approached of course on the basis that treatment by a medical practitioner is not a treatment by a medical practitioner within the meaning of a New South Wales' statute.
4. In Casey v NSW Police Department (1999) 18 NSWCCR 592 my late learned colleague, Bishop CCJ, (as he was then), said this at [48]: "Neilson J has commented that the above principles probably require a variant in that treatment is within the section if it maintains the worker's state of health or slows or prevents its deterioration: Cheng v Sivieng NSWCC No. 17252/96, 22 April 1998, unreported. I would respectfully agree with that comment."
5. Here, the surgery proposed by Dr Diwan is treatment by medical practitioner thus falling within par(a) of the definition of "medical or related treatment" in s 59 of the Workers Compensation Act 1987. It is proposed that the surgery be carried at the St George Private Hospital, which is treatment at a hospital, thus falling with the definition of "hospital treatment" in s 59 of the same Act. Applying what fell from Burke CCJ in Rose v Health Commission it is relevant medical treatment and relevant hospital treatment for the purposes of the Workers Compensation Act 1987 and therefore the subject of a gratuity under s 12D of the Act which I am applying. His Honour held that once the treatment fell within such categorisation it is presumed to be reasonable although the presumption is rebuttable. The reason for carrying out the treatment is to remove or relieve the patient's; that is, the plaintiff's, pain. The oral evidence of Dr Diwan also suggests that the treatment he proposes to the cervical spine will arrest the progress of cervical spondylosis; that is, that it will slow or prevent the deterioration of the condition. There is no suggestion that the treatment is in some way extraordinary or novel or untoward. I have earlier used the adjective "radical" to describe the full surgery proposed by Dr Diwan but in doing that I did not mean to suggest that it is outside the norms or expectations of reasonable medical practitioners, rather I only use the word "radical" to indicate that the surgery is "major." There does not appear to be any dispute that the treatment is expensive, necessarily so being, as I said, major treatment.
6. The real question is whether it will perform the tasks that the plaintiff anticipates from it and that Dr Diwan anticipates that it will provide. In other words, what is here involved is an inquiry as to the actual or potential effectiveness of the treatment, to use the terminology in the fifth paragraph of the synopsis proposed by Burke CCJ in Rose v Health Commission. Of course, the word "necessary" is an absolute: either something is necessary or is it not. However, as the case law acknowledges, the words "reasonably necessary" do not require the absolute necessity for the surgery proposed. Rather, the adverb "reasonably" modifies the strictness or exactitude of the adjective "necessary." It is perhaps appropriate in the current case to apply that which fell from Burke CCJ in Bartolo: "The question is, should the patient have this treatment or not? If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said the patient should not do without this treatment, then it satisfies the test of being reasonably necessary." Applying that formulation, should the patient have the surgery proposed by Dr Diwan, can it be said that he should not do without it? The question really boils down to: will the treatment be effective?

Consideration (2)

1. I have reached the view that it may be necessary to provide the operative treatment proposed by Dr Diwan, if it can be established that the major cause of the plaintiff's pain results from neurological damage at the level of the neck; that is, in essence, whether the plaintiff's pains are radicular, that they are caused by nerve root compression caused by bulging or protruding or herniated discs in the cervical spine. However, it appears to me that before that can be ascertained, the plaintiff's ulnar neuropathies should be investigated and perhaps treated to see whether the performance of that treatment ameliorates the plaintiff's symptoms. The problem legally is that there is no suggestion here that the ulnar neuropathies at each elbow and the carpal tunnel syndrome in the right wrist were caused by the injury to the plaintiff's neck on 1 January 1998. Those are not compensable conditions.
2. I am not a medical practitioner. However, if I were the plaintiff, I would proceed in the following fashion.
3. I would obtain up to date neurophysiological studies, the same as those performed at the request of Dr Schwartz and referred to in Dr Schwartz's report of 3 July 2013;
4. I would then consult Dr Hugh Jones armed with those up-to-date neurophysiological studies and also, at least a report of the earlier neurological studies referred to in Dr Schwartz's report of 3 July 2014 and also armed with the MRI scans of the elbows performed on 24 April 2014 and 1 May 2014;
5. I would seek Dr Jones' opinion as to whether my symptoms were mainly or largely due to elbow pathology and, if so, whether they could be improved by treatment such as, for example, injections into the elbows or perhaps surgery at the elbows. If Dr Jones was of the view that such treatment and/or surgery would be of major assistance; that is, it would have a good chance of alleviating the plaintiff's symptoms in his arms, then it would be prudent to undergo that. However it may not be, in the opinion of Dr Jones, the major cause of the plaintiff's symptoms. It may also be that even if it be the major cause of the plaintiff's symptoms, it is not amenable by any type of treatment including surgery;
6. Once the plaintiff has had an opportunity of discussing these matters with Dr Jones, it would be prudent for Dr Jones and Dr Diwan to confer with the plaintiff to advise him of the optimal treatment intended to relieve the plaintiff's symptoms;
7. In the event that there is a disagreement between Dr Diwan and Dr Jones and, probably in any event, it would be prudent for the plaintiff to obtain a second opinion from a respected orthopaedic surgeon as to the better or best way to proceed. By an independent "second opinion", I am not referring to an opinion to be provided to the defendant or its agent, but one provided to the plaintiff himself, albeit that the defendant must necessarily pay for such advice;
8. It may well be that if treatment and/or surgery is provided by Dr Jones to the plaintiff's elbows, that the plaintiff's symptoms will be largely relieved and he might decide not to proceed with cervical surgery. However, even if treatment provided by Dr Jones does not relieve the plaintiff's symptoms, then it appears to me that it would be justifiable in the circumstances for the plaintiff to undergo the surgery proposed by Dr Diwan;
9. Finally, close oversight of the plaintiff's whole treatment regime is required, so that the lack of communication between Dr Diwan and Dr Jones, and the inadequate "briefing" of Dr Jones which I have discussed, or anything similar, does not occur again. The plaintiff's general practitioner needs to be more active.
10. I initially thought that I should limit that surgery to surgery at C6-7 and C5-6, as initially proposed by Dr Diwan, but on reflection, and looking at the various medical reports, it appears to me that it might be prudent to give to Dr Diwan the permission to carry out surgery between C3 and C7 provided that there is some persuasive evidence that the plaintiff's symptoms are alleviated mainly by the condition of his cervical spine. Of course, whether the plaintiff's symptoms are mediated by his cervical condition might be able to clarified by the facet joint injections for which Dr Diwan sought permission on 18 February 2015. I do not know whether permission was given for that treatment but if that were currently before me I would give permission for that treatment; the treatment proposed, injections at two levels of the cervical spine on three different occasions. It may be prudent to increase the number of levels for the facet blocks to each of the levels between C3 and C7.
11. At the close of Mr O'Rourke's address on behalf of the plaintiff I discussed with him a proposed form of order, the proposed form of a finding. As currently advised, the finding I propose to make is this: "Provided that the differential diagnoses of ulnar neuropathy at each elbow and median neuropathy at the right wrist be excluded as effective causes of the plaintiff's pain (either by surgical intervention or by opinion following further testing) it is reasonably necessary that the plaintiff undergo surgical treatment between C3 and C7 as proposed by Dr Ashish Diwan in accordance with the protocol described by him in evidence given on 31 July 2015."

Other issues

1. Before making a formal finding, I should address a few other issues which arose. Mr Stanton, for the defendant, addressed me at some length as set out in the outline of his submissions (MFI 6) about whether the need for the surgery proposed by Dr Diwan resulted from the event relied upon by the plaintiff; the injury, 1 January 1998. He pointed out there had been subsequent aggravations and clearly the plaintiff admitted in chief, an aggravation caused in the stonework incident in April of 2002 which is referred to in [36] of the plaintiff's affidavit of 29 July 2015 which is exhibit AA. However, I have already found that the plaintiff's cervical spondylosis was precipitated; that is, started, by the frank injury of 1 January 1998. When a frank injury; that is, an injury arising out of or in the course of a person's employment, precipitates some pathologic process which could later be diagnosed as disease that does not mean that the disease provisions must subsequently be applied. Rather since the pathology results solely from the injury of 1 January 1998 it can all be referred to that event, such is the finding I have here made, as that event is the genesis of the pathologic process in the plaintiff's neck. It is irrelevant that it may have been subsequently aggravated by non-compensable events: such was the decision of the High Court of Australia, Calman v The Commissioner of Police [1999] HCA 60; (1999) 19 NSWCCR 40.
2. My initial finding and that observation relieves me of the very thorny issue of trying to decide whether the need for surgery results jointly or somehow in combination with a subsequent aggravation, which may not be compensable. Mr O'Rourke in [28] of his outline of submissions (MFI 6) submitted that it was not open to the defendant to visit the issue of the causation of the plaintiff's certified infirmity because that is a matter that was determined by the Commissioner of Police. With the utmost respect, I cannot agree with that submission, albeit that it makes no difference in the current case. A finding a certified infirmity was caused by a former member of the Police Force having been hurt on duty requires the Court to ascertain whether, if the member or former member of the Police Force was a worker within the meaning of the Workers Compensation Act 1987 he or she would be entitled to compensation under that Act. A finding, as in the current case, of cervical spondylosis by PSAC, and a subsequent certificate of the Commissioner of Police, does not necessarily mean that the Commissioner of Police accepted that the certified infirmity was due to some frank injury arising out of and/or in the course of the member's police service but rather might mean that the Commissioner was merely accepting that there was a relevant aggravation, acceleration, exacerbation or deterioration of pre-existing non-compensable pathological condition by reason of an injury arising out or in the course of employment. Of course, if instead of reaching an agreement with the plaintiff in the proceedings of 2010 the matter had run to judgment, there would have been a finding from the Court as to the actual cause of the certified infirmity. Having said that I note that the certified infirmity, as far as the low back was concerned, was "aggravation of spondylosis and degenerative change in the low back" which means that was taken into account and because there was no similar wording concerning the cervical spondylosis with a degree of radicular symptoms in the left arm one might think that it was an acceptance of actual causation rather than merely aggravation, acceleration, deterioration or the like.
3. Mr O'Rourke also addressed me at some length as to various provisions of the Superannuation Administration Act 1996, under which the defendant operates, and prayed those in aid of the inquiry that I have conducted. Lest the matter go further I should indicate that Mr O'Rourke was relying on the provisions of s 50(1)(b) of that Act, s 51(1)(a), (b) and (c) and s 51(2)(a) and (c) of that Act of its general powers under s 66 and of its powers under s 67(3) and (4) and of its powers under s 68.
4. In his written submissions Mr O'Rourke posed a question, "Into whose shoes does the Court step?" I really step into the shoes of an employer under the Workers Compensation Act 1987 who just also happens to be the administrator of the Police Superannuation Fund. The closest analogy would of course be an employer's insurer, considering the provisions of the Workers Compensation Act 1987. However, clearly, I am doing something which only the defendant could do. The question currently before me is not one which the Commissioner of Police is authorised under the Act to do and, according to submissions put to me by Mr O'Rourke, is consistent with the "crude dichotomy" referred to in the Commissioner of Police v Kennedy [2007] NSWCA 328; (2007) 5 DDCR 380.

Finding and orders

1. For those reasons, I find that, provided that the differential diagnoses of ulnar neuropathy at each elbow and median neuropathy at the right wrist be excluded as effective causes of the plaintiff's pain (either by surgical intervention or by opinion following further testing), it is reasonably necessary that the plaintiff undergo surgical treatment between C3 and C7 as proposed by Dr Ashish Diwan in accordance with the protocol described by him in evidence given on 31 July 2015.
2. I give liberty to the parties to apply on three days' notice to my associate as to any further orders being sought or as to any further argument concerning issues of proposed medical treatment. I order the defendant to pay the plaintiff's costs of these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2016