1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (ARD) and attached documents;

(b) Reply and attached documents;

(c) Application to Admit Late Documents dated 16 March 2023 filed by the respondent attaching the report of Dr Casikar dated 3 March 2023;

(d) Application to Admit Late Documents dated 6 October 2023 filed by the applicant attaching the report of Dr Yousaf dated 4 October 2023;

(e) Application to Admit Late Documents dated 1 November 2024 filed by the applicant attaching his statement of that date;

(f) Application to Lodge Additional Documents dated 28 October 2025 filed by the applicant attaching various documents;

(g) Application to Lodge Additional Documents dated 29 October 2025 filed by the respondent attaching various documents;

(h) Letter from the respondent's solicitors dated 17 October 2023 attaching a letter of instructions to Dr Yousaf dated 3 October 2023, and

(i) Application to Lodge Additional Documents dated 6 November 2025 attaching clearer copies of pages 181 and 186 of the ARD.

1. There was no oral evidence nor were any applications made to cross-examine any witness. Both counsel made oral submissions which have been sound recorded and a written transcript (T) has been made from the recording.

1. It is useful to briefly summarise the available evidence in chronological order before considering the parties' submissions.
2. In Mr Shipley's statement dated 27 July 2022 he sets out his employment history including that he commenced work with the respondent in January 2018 as a storeman[3]. The respondent is an auto body parts supplier. He says on 31 January 2020 he was driving a forklift in the warehouse unloading pallets from shipping containers. He says he noticed a pallet was leaning and appeared it was going to fall so he alighted from the forklift and attempted to push the pallet into a more secure position. He states in doing this he felt a crack in his neck, and pain in his left shoulder and mid and lower back. He says this incident was witnessed by the truck driver who delivered the pallets.
3. He says he ceased work immediately and laid flat on his back in the warehouse. He says at this time "I was experiencing very significant pain in my neck, in my left shoulder and in my back." He says an ambulance attended him and took him to Blacktown Hospital where he underwent X-rays and he was discharged the same day into the care of his general practitioner, Dr Yousaf. He says he had great difficulty walking and he was experiencing pain in his neck, left shoulder and back on his discharge from the hospital.
4. The ambulance record for 31 January 2020 has a consistent history of the incident with the exception there is no reference to Mr Shipley's neck. It is stated that as he took the weight of the pallet he "felt a pop in his back with severe pain". The record states he was alert, orientated and speaking in full sentences. It is stated that he complained of pain to the thoracic region of the back, was initially clammy and he reported numbness and tingling down his right lower leg. They administered pain relief.[4]
5. The Blacktown Hospital Emergency record has the details of an X-ray undertaken of the chest and thoracic spine with the clinical data noted as "thoracic/back pain." The discharge summary has the history of Mr Shipley experiencing pain in his mid-thoracic region and that he had normal upper limb and lower limb neurological examination.[5] He was treated with Panadol, ibuprofen and Endone. It is noted that he had intermittent ICE usage and IV heroin injecting and smoking from past 10 years.[6]
6. A physical examination was conducted at the hospital by Dr Richard McNulty[7]. It appears he tested the strength in the upper limbs including the shoulders, elbows, wrists and hands as well as in the lower limbs and all were 5/5. He found that Mr Shipley likely suffered a ligamentous injury. His assessment was of back pain and he issued a WorkCover form. There is another entry about a physical examination in the records stating he was difficult to assess because of pain. There was a repeat neurological and spine examination when the pain was better controlled. The clinical impression was recorded as "musculoskeletal injury in mid thoracic region". Again there is no mention of neck pain. In an entry about the history of the incident there is reference to "no headstrike or loss of consciousness."[8]
7. On 3 February 2020 Mr Shipley consulted Dr Ayesha Yousaf, general practitioner from Myhealth Medical Centre Baulkham Hills. He was a new patient. The doctor's clinical note records the history of a work related back injury on 31 January 2020 as he was "moving pallets, tried stopping and felt snap in upper back". The doctor recorded he was tender in the left paraspinal T4-6 with no upper limb symptoms, no paraesthesia and no spinal tenderness.[9] The doctor states she issued a workers compensation certificate and prescribed Panadeine Forte and that Mr Shipley was keen to go back to work. There is no mention of the neck in this entry.
8. On 10 February 2020 Mr Shipley saw Dr Yousaf again who recorded he had shallow breathing because of pain and reduced range of arm extension. She states he was not fit to work at that stage and gave another NSW WorkCover Certificate of Capacity.[10]
9. On 14 February 2020 in a further consultation, Dr Yousaf recorded Mr Shipley's pain and breathing was getting better, he did not want to see a physiotherapist and he wanted to return to work. She recorded a trial of preinjury duties and to review him if he got worse or had new symptoms.[11] A further certificate was issued.
10. On 17 February 2020 Dr Yousaf recorded that Mr Shipley had ongoing pain, sharp the prior night and he was unable to go to work. She suggested physiotherapy and regular ibuprofen and Panadeine when necessary. She writes if there is no improvement a CT scan would be arranged.[12] Again there is no mention of neck symptoms.
11. Handwritten physiotherapy notes are included in the ARD and a clear copy has been subsequently lodged. From the card listing the dates of treatment, the first treatment date appears to be 18 February 2020.[13] The body diagram on page 182 has hatched marking only in the thoracic back region. The history recorded on the bottom left side of the page refers to how the incident on 31 January 2020 took place and that Mr Shipley felt pain "on left side of upper/mid back and into head". There does not appear to be a reference to the cervical spine or neck but the rest of the notes on that page are very hard to read even on the clearer copy.
12. On page 183 is the treatment record for 30 September 2020 which is hard to decipher because of the handwriting. The next entry in October 2020 does refer to "neck, mid back and LBP". On 24 October 2020 it is recorded that his neck is still feeling stiff.[14] On page 186 there is a reference to neck pain for last five days. The day of the consultation is cut off but "October 2020" is clearly written.
13. On 28 February 2020 Annaleise Barton, physiotherapist, wrote to Dr Yousaf noting that the doctor had referred Mr Shipley regarding his thoracic spine pain. She advised on examination he had good range of motion but had pain with thoracic rotation, flexion and extension. He was markedly tender throughout his left thoracic spine from T3 to T7 and he reported the occasional headache.[15] She advised that Mr Shipley appeared to be extremely hypersensitive and had an unusually high amount of reported pain.
14. On 2 March 2020 Dr Yousaf recorded a clinical entry referring to back and neck pain. She states, "initially neck pain was not much but now cervicogenic headaches". She noted it was worse with walking and he had a limited range of neck movements and he had been getting pins and needles and numbness over the right thumb area and he did not have this prior to the injury. Dr Yousaf also records he was tender at C2 area at the base of the skull with reduced range of rotation and right upper limb neurological examination was normal. She requested a CT scan of his neck noting:

"(neck pain since injury at work, severe jolt in neck and upper back while trying to stop a large load from forklift. Limited range tender at C2 midline and paraspinal right hand C6 pins and needles with numbness. Please exclude any bone or ligament injury/ disc bulge with possible radiculopathy"."[16]

1. This seems to be the first written medical record referring to the cervical spine or neck (the terms are used interchangeably).
2. On 2 March 2020 Mr Shipley underwent X-rays of his chest and thoracic spine and CT cervical spine scan at the request of Dr Yousaf.[17] The radiologist concluded he had degenerative changes in his cervical spine with mild canal stenosis at C6/7. There was C7 and C8 foraminal narrowing, without definite neural impingement. The radiologist recommended close clinical correlation and if there was diagnostic uncertainty that an MRI could be considered.
3. On 10 March 2020 Dr Yousaf gave the results of the scan to Mr Shipley and advised him to continue with physiotherapy. She writes in her clinical note that he was slowly improving and she said to rest and from the next week to trial modified duties.[18]
4. On 18 March 2020 Dr Yousaf recorded in her clinical notes that Mr Shipley went to work for a full day on Monday and yesterday and that he was in pain by lunchtime. He was on light duties with breaks. After four hours he had neck pain and pain behind the back of his leg. She says yesterday he went to work and by mid-day he was very stiff. She issued a WorkCover certificate and requested a CT thoracic scan in relation to midthoracic area, left paraspinal area and under left scapula. She records for the referral that he had "ongoing pain and new shooting lower limb pain ? cause."[19] On 18 March 2020 a CT scan was performed of the thoracic spine which was found to be unremarkable.[20]
5. On 24 March 2020 Dr Yousaf saw Mr Shipley and noted improved range of motion in his right arm with the left still limited because of pain. She recommended he continue physiotherapy and medication.[21]
6. On 6 April 2020 Dr Yousaf recorded that he had improved range of the upper limb, right better than the left and she recommended continued physiotherapy and he could aim to return to full hours after four to six weeks.[22]
7. On 24 April 2020 Dr Yousaf wrote in her clinical notes that Mr Shipley was improved, nearly back to normal and he wanted to go back to preinjury duties. A further WorkCover certificate was written.[23]
8. On 10 July 2020 Mr Shipley saw Dr Yousaf again and she recorded he was lifting large boxes at work, unloading a container on 2 July 2020. He felt a sharp pain during the lifting and then back pain started radiating down to his left leg. She notes "both L5 and T7-8 tender ++. LL normal sensation, gait slow but normal". [24] Dr Yousaf referred Mr Shipley to Mr Nicholas Toose to give an opinion and manage lower back pain related to work injury. Dr Yousaf advised that Mr Shipley "had thoracic back injury 4 months ago and that was settled until lower back injury exacerbated the pain."[25]
9. On 21 July 2020 Mr Shipley underwent an X-ray of the thoracic spine which was normal and an MRI lumbar spine scan which showed facet joint arthropathy particularly at L4/5 and L5/S1 with no disc protrusion or neural compression.[26] Dr Yousaf saw him that day and records he complained of lower back pain with shooting pain horizontally across. His upper back was painful in the same area.[27]
10. On 24 July 2020 Dr Yousaf referred Mr Shipley to Mr Fahker, Physio Rehab Centre, in relation to back pain related to workplace injury.[28]
11. On 31 July 2020 Dr Yousaf referred Mr Shipley to Mr Yu, Myphysio Baulkham Hills, in relation to work related back pain with left sided shooting leg pain.[29] Dr T B Dang, physiotherapist from that practice reported to Dr Yousaf on 13 August 2020 that Mr Shipley had reported that on 2 July 2020 while lifting and carrying some cylinders at work he felt a twinge in the lower back while turning with the load[30]. He advises that Mr Shipley reported that his buttock and groin pain has resolved but he continued to experience 6/10 pain in the left sacroiliac joint, worse when sitting and bending. There is no mention of the cervical spine in the report.
12. On 28 August 2020 Dr Yousaf referred Mr Shipley to Mr Philip Ting in relation to back pain after injury at work. Reference is made to thoracic back injury earlier in the year that got better and to him lifting boxes on 2 July 2020 and developing lower back and left sided leg pain. Dr Yousaf asked Mr Ting to review Mr Shipley and assist with return to work.[31]
13. Mr Ting, from The Hills Sports Physio, reported to Dr Yousaf on 28 September 2020.[32] He refers to Mr Shipley suffering from low back pain since 2 July 2020 after lifting a large box awkwardly. Mr Ting states Mr Shipley was currently working four hours a day, three days per week on light duties. The report is quite detail about his complaints and examination findings. There is no mention of the neck.
14. In Dr Yousef's clinical notes during August, September and October 2020 there is no mention of neck symptoms.
15. On 16 October 2020 Dr Yousaf referred Mr Shipley to Dr Hsu, spine surgeon.[33] The doctor advised that Mr Shipley had thoracic and lower back pain after work related injuries on

31 January 2020 and 2 July 2020. There is no mention of the neck. However, Dr Yousaf did include a request for a CT cervical spine scan in the tests she ordered.[34] 16. In an undated report referring to a consultation on 24 October 2020 Mr Ting wrote to Dr Yousaf that in previous treatment sessions Mr Shipley has reported alternating worsening pain between his cervical thoracic spine and lumbar spine/left leg that causes him difficulty sleeping. He adds that on examination Mr Shipley demonstrated varying amounts of pain and restrictions alternatively in his cervical and lumbar spine which improve after treatment.[35] 17. On 2 November 2020 Dr Yousaf referred Mr Shipley to Alfred de Robillard for treatment of anxiety and depression associated with back injury.[36] In the clinical entry on that day Dr Yousaf recorded Mr Shipley had neck stiffness.[37] 18. An MRI scan of the thoracic and lumbar spines states it was requested by Dr Yousaf on

16 October 2020 and undertaken on 12 November 2020.[38] The radiologist concluded that he had "early disc dehydration at the cervicothoracic and thoracolumbar junction. Minor annular fissuring at T12/L1 may be the potential cause of discogenic pain. There is no focal disc protrusion or mechanical neural impingement demonstrated." The lumbar MRI was found to have no evidence of mechanical neural impingement to suggest a cause for the left sciatica and he has mild right L4/5 and bilateral L5/S1 facet joint arthritis without synovitis or bone stress. 19. On 27 November 2020 Dr Hsu reported that Mr Shipley does demonstrate significant back pain both in the thoracic and lumbar region while lifting heavy objects at work.[39] There is no mention of the neck. 20. On 30 November 2020 Dr Yousaf referred Mr Shipley to Mr Fakher at Physio Rehab Centre. In the referral he refers to management of back pain associated with workplace injury. He says he has a non-conclusive MRI scan and is seeing a specialist. He adds "he has significant left side muscle stiffness paraspinal along cervical and thoracic spine and left lower leg symptoms ? sciatica."[40] 21. On 9 December 2020 Dr Hsu reports that on clinical examination Mr Shipley certainly demonstrates significant signs and symptoms related to the left shoulder and he is experiencing some intra-articular pathology in the left shoulder.[41] The doctor arranged for an MRI scan of the left shoulder which found minor infraspinatus tendinosis with overlying bursitis, mild acromioclavicular joint osteoarthritis, type 1 SLAP tear in the posterior labrum with paralabral cyst in the spinoglenoid notch and no muscle denervation. There was normal IGLLC, which I assume is a reference to inferior glenohumeral ligament labrum complex.[42] 22. On 29 December 2020 Dr Hsu reported to Mr Wills from IPAR Rehabilitation and gave a diagnosis of "discogenic back pain and neck pain, shoulder pain".[43] There is no reference to the cause of these symptoms in this report. 23. On 14 January 2021 Dr Hsu reported to Dr Yousaf that Mr Shipley has ongoing pain around the periscapular region and also lumbar spine and left leg. He said he had arranged for Mr Shipley to undergo an MRI scan of the cervical spine and to have an orthopaedic opinion regarding the left shoulder findings.[44] Dr Hsu issued referrals to Dr Baba, Dr Low and Dr Nicholas Smith for the left shoulder. Dr Yousaf also issued a referral to Dr Nicholas Smith for the left shoulder adding that it is "associated with neck pain and thoracic pain after a work cover injury".[45] 24. On 27 January 2021 Dr Yousaf referred Mr Shipley for physiotherapy with Ms Barry at Castle Hill Physio and Sports Injuries for the left paraspinal cervical and upper thoracic back pain sustained after a work injury.[46] 25. On 28 January 2021 the MRI cervical spine scan addressed to Dr Hsu had the clinical history of "neck and arm pain" and the radiologist's impression was of degenerative changes in the cervical spine at C6/7 level where there is impingement of traversing left C7 nerve root. Clinical correlation with dermatomal distribution of symptoms was suggested.[47] 26. Handwritten physiotherapy notes in the ARD start on 2 February 2021 with Mr Shipley stating his main problem was his back pain.[48] The body diagrams do not appear to mark the cervical spine. The shoulder blades and thoracic spine and left side of the lumbar spine are marked. The author erroneously refers to the first work incident as occurring in January 2019. 27. Dr Nicholas Smith reported to Dr Yousaf on 17 February 2021. He advises that Mr Shipley previously did a lot of gym but not for the past 12 months. He took a history that Mr Shipley injured his shoulder when he was unloading a container in January 2020 when he attempted to block the fall of a container and he felt a snap in his back. He says since then he also has anterior shoulder pain. Dr Smith examined the left shoulder and found fairly marked irritability noting elevation of 140 degrees, external rotation of 60 degrees and internal rotation to L2. He said that Mr Shipley seems very genuine. He found pain on loading the supraspinatus, grade IV in power and O'Brien's sign causes him deep pain and he has tenderness around his AC and pain with loading. Dr Smith said the MRI scan reported a superior labral injury but he was unable to define it on the images he reviewed he said there was mild change in the AC joint. Dr Smith advised the potential pain generators are his cervical spine, SLAP lesion and AC joint. He says he recommended Mr Shipley have an AC joint corticosteroid injection and he will wait to see what Dr Hsu has to say and Dr Smith will possibly consider surgical treatment of the shoulder.[49] Dr Smith's handwritten consultation note is contained in the reply.[50] 28. Dr Hsu reported on 18 February 2021 that some of Mr Shipley's symptoms are likely to relate to his cervical spine which correlates with the findings on the current MRI scan. He advised he wanted Mr Shipley to have the shoulder injection recommended by Dr Smith and then trial a cervical foraminal injection.[51] 29. On 24 February 2021 Mr Shipley was given an ultrasound guided injection in his left AC joint.[52] 30. On 24 February 2021 Dr Yousaf referred Mr Shipley to Dr Alan Nazha for management of neck pain since workplace injury nearly 12 months ago.[53] 31. On 22 March 2021 Dr Smith advised Dr Yousaf that Mr Shipley did not feel the corticosteroid injection into his left shoulder made any difference. He said he would wait to see the recommendation from Dr Hsu and if he thought the shoulder was the primary source of discomfort arthroscopic evaluation and surgical treatment of the SLAP lesion would be required by a biceps tenotomy or biceps tenodesis.[54] 32. Dr Bisham Singh referred Mr Shipley for a CT guided cervical spine injection on

14 April 2021 to left C3/4 foramen and it was stated he was to come back for an injection at C4/5 level.[55] 33. Dr Yousaf referred Mr Shipley for treatment of his anxiety and depression associated with his work related injury to Dr Rachel Bailey on 23 April 2021.[56] 34. On 28 April 2021 Dr Yousaf requested a pharmacist to supply a TENS machine and Voltaren gel.[57] 35. On 29 April 2021 Mr Shipley was taken by ambulance to the Emergency Department of Ryde Hospital complaining of neck pain and difficulty mobilising. The records refer to a history of neck pain for 16 months since a workplace incident.[58] The triage record states he had full range of motion of the neck, there was no tenderness in the cervical spine, no headache. The ambulance notes refer to complaints of cervical region pain as aching and sharp, radiating to the back, aggravated by movement and flexion.[59] 36. On 30 April 2021 Mr Shipley underwent a guided left C4/5 foraminal injection at the request of Dr Singh.[60] 37. On 12 May 2021 Dr Yousaf recorded in her clinical notes Mr Shipley's neck had settled down but he was still having electric shocks with movements in his neck. Targin was helping.[61] 38. On 17 May 2021 Dr Smith reported to the workers compensation insurer.[62] He was asked for his diagnosis of the left shoulder symptoms. He advised that he probably has a SLAP lesion and he has irritability in keeping with this and the MRI scan confirmed this. He added that he may have some contribution of symptoms from his neck for which he is seeing Dr Hsu. He also advised that he did not believe the shoulder symptoms were secondary to his thoracic problem but he said the shoulder symptoms may have occurred during the same work injury. 39. On 21 May 2021 Dr Yousaf recorded Mr Shipley was scared to do exercises because even light exercise triggers his neck pain and shooting leg pain. He has shoulder pain but said he can handle that.[63] 40. On 2 June 2021 Dr Singh reported to IPAR Rehabilitation giving a diagnosis of "discogenic back pain and neck pain, shoulder pain".[64] 41. On 21 June 2021 Dr Yousaf records that over the past two weeks Mr Shipley wakes up in the morning feeling very stiff and feeling of snapping in his neck and that he felt he was losing muscle control in his neck. He was tender at C7-8 and paraspinal area. He had numbness and pins and needles in C8 distribution and was tender at T10.[65] 42. On 23 June 2021 Dr Hsu reported to Dr Yousaf that the cervical spine injections only gave marginal relief of symptoms and that currently his symptoms were still quite significant. He says he advised Mr Shipley to continue to consult his pain specialist and non-operative treatment. Dr Hsu said if his symptoms become worse even with this treatment they could consider surgery.[66] 43. On 25 June 2021 Dr Nazha, pain specialist, reported to Dr Yousaf. He has a history about the incident at work in January 2020 and states that Mr Shipley had taken a month off work due to the persistent cervical pain. He states that after about three months after he return to work Mr Shipley was lifting a heavy box and had a profound onset of severe pain to his cervical spine as well as his left shoulder. On examination he had profound restricted range of motion of the cervical spine with fear-avoidant behaviour. He had significant restriction to extension and was exquisitely tender to palpation of his lower cervical spine. Dr Nazha said that examination of his shoulder only demonstrated mild tenderness to palpation of the subacromial bursa and longhead biceps tendon. He said most to the pain appears to be of the cervical spine. Dr Nahza recommended he wean off opioid medication, have psychological and pain management sessions to address fear avoidant behaviour.[67] He recommended use of a TENS machine. 44. On 19 July 2021 Dr Yousaf recorded the neck was the same with no change, he had headaches on and off behind his eyes and he felt tightness around his head and worse on extension of his head. Injections in his left shoulder and neck only helped for a couple of weeks.[68] 45. On 7 August 2021 at Dr Yousaf's request an MRI lumbar spine scan was performed.[69] 46. On 8 August 2021 Dr Yousaf referred Mr Shipley back to Dr Smith in relation to his left shoulder and neck pain, noting some improvement with the cortisone injection in March 2021.[70] 47. On 18 August 2021 Dr Hsu reported to the insurer.[71] This report is of limited utility as the questions posed to the doctor mainly related to the thoracic spine. 48. On 23 August 2021 Dr Nazha reported to Dr Yousaf referring to the use of TENS machine and various medications.[72] 49. An MRI cervical spine scan was undertaken on 24 August 2021 at the request of Dr Yousaf.[73] The clinical history on the report is "neck pain with bilateral C8 radicular symptoms". The radiologist concluded that Mr Shipley has multilevel cervical spine degenerative changes, notably C6/7 with broad based disc bulging. Irritation of the origin of the C8 nerve roots could not be entirely excluded. Minor C7-T1 degenerative disc disease was found without definite neural impingement. The radiologist stated if there was a failure of improvement with conservative treatment a C6/7 transforaminal epidural injection could be considered as a diagnostic and potentially therapeutic procedure. 50. An MRI thoracic spine scan was undertaken on 25 August 2021 with clinical history "tender T4 to T6, stabbing pains". The radiologist found no disc protrusion of neural compression and at the area of discomfort there is no soft tissue mass or inflammatory changes. Mild low-grade symmetric costovertebral arthropathy was evident.[74] 51. On 30 August 2021 Dr Yousaf referred Mr Shipley back to Dr Hsu stating he was having significant neck pain with disc bulge at C8 and radicular bilaterally in C8 distribution. It was noted that the cortisone injection in March 2021 was not much help.[75] 52. Justine Walker, physiotherapist wrote to Dr Nazha on 31 August 2021 and commented that Mr Shipley was "very fixated on the idea of bulging discs in his neck as the driver of his pain". She says physiotherapy has had limited success. She gives her impression that he has "significant fear avoidance and maladaptive behaviours towards pain, which certainly relates to the traumatic descriptions of his injury and though he initially snapped his spinal cord and neck." Ms Walker referred to the MRI showing pathology at C6/7 region and recommended a thorough neurological examination to understand the extent of this.[76] 53. On 20 October 2021 Dr Hsu wrote to Dr Yousaf advising pain management had not been extremely successful and his symptoms were still quite significant. The doctor says the recent MRI scan of the cervical spine does demonstrate significant disc pathology at C6/7 and C7/T1. As this was a telehealth consultation the doctor wished to see Mr Shipley face to face.[77] 54. On 29 October 2021 Dr Hsu sent an estimate of fees to the insurer for a C6/7, C7/T1 anterior cervical decompression and fusion.[78] 55. On 2 November 2021 Dr Yousaf referred Mr Shipley to Dr Duckworth in relation to right shoulder injury. This is probably a typographical error for the left shoulder because the right shoulder has not been mentioned or treated with injections up to this time.[79] 56. On 3 November 2021 Dr Hsu reported to Dr Yousaf that Mr Shipley's cervical spine symptoms are more severe, despite previously successful injections at C6/7 and C7-T1. He says Mr Shipley continues to demonstrate significant cervical radiculopathy with neck pain, shoulder pain and upper limb pain. The doctor states one of the treatment options is surgery.[80] 57. Dr Duckworth reported to Dr Yousaf on 29 November 2021 regarding Mr Shipley's left shoulder. He has a history "in January 2020 he had a work accident when pushing a pallet which collapsed and he felt an explosion from his neck, down his back and into his left shoulder. He has had ongoing problems affecting his neck and shoulder since". Dr Duckworth examined Mr Shipley and advised that the main pathology was affecting his neck rather than his shoulder. He had not seen the MRI scans of the shoulder.[81] 58. In Dr Yousaf's clinical notes for 2021 from August to end of the year are frequent references to neck pain and they continue into 2022. 59. The insurer obtained a medico-legal report from Dr Casikar, neurosurgeon, dated

17 February 2022.[82] He has the history that in the incident on 31 January 2020 Mr Shipley developed severe pain in the neck and the left shoulder and in the second incident on

2 July 2020 he developed a severe pain in his neck and shoulder which Mr Shipley says was exactly as before. He advised that three days later the shoulder and neck pain increased. On examination Dr Casikar found movements of the neck were limited towards the left and movements of the left shoulder were significantly reduced in all directions compared to the right. No neurological issues were found. Dr Casikar diagnosed soft tissue injury of the left shoulder and a constitutional incidental cervical spondylosis. He says neck pain is common to both cervical spondylosis and soft tissue injury to the shoulder and given the normal neurological findings he thought the neck pain was due to the shoulder injury. He says there is a tear in the left shoulder. 60. Dr Casikar advised that Mr Shipley had a pre-existing cervical spondylosis which was not aggravated by his employment and the neck pain is due to the shoulder. He expresses the opinion that the proposed surgery to the cervical spine is not reasonably necessary and is likely to have a poor outcome as the cervical pain is not due to his spondylosis but due to the left shoulder. He recommends the shoulder be treated first. 61. On 20 March 2022 Mr Shipley was taken by ambulance to Ryde Hospital in relation to neck pain at the base of his neck radiating down his back. On examination he was tender on palpation at C7.[83] 62. Dr Peter Bentivoglio provided a medico-legal report for Mr Shiley's solicitors dated

9 May 2022.[84] Unfortunately he was not provided with the ambulance records or from Blacktown Hospital in relation to the incident on 31 January 2020. The doctor takes a history that he developed neck and left shoulder pain when trying to reposition a pallet on a forklift. He was told that they did X-rays of his neck at Blacktown Hospital. However, this is not borne out by the hospital's records. Dr Bentivoglio also records that Mr Shipley saw his doctor the next day complaining of left sided neck pain. Again this is not recorded in Dr Yousaf's notes. 63. Dr Bentivoglio has a history of the second incident on 2 July 2020, unloading boxes from a container developing neck pain going into the left shoulder and low back pain. Dr Bentivoglio has an incorrect understanding of the history because he says he never had any prior low back issues but the neck pain going into the left arm was similar to the original injury on

31 January 2020. Clearly Mr Shipley did have back issues from the 31 January 2020 incident. 64. Dr Bentivolio refers to the MRI scans of the cervical spine and found on examination Mr Shipley had decreased neck movement, especially looking to the left and had some altered sensation in the C8 dermatomal distribution. The diagnosis was neck pain secondary to multilevel degenerative disease with discogenic cervical pain worse at C6/7 and disc bulges at C7/T1. He found no radiculopathy and no true neuropathic pain. 65. Dr Bentivoglio diagnosed that the injury sustained on 31 January 2020 was an exacerbation of his pre-existing degenerative disease in the cervical spine which was asymptomatic before the injury. He said the CT scan about a month post injury confirmed he had pre-existing degenerative disease in the cervical spine.[85] 66. Dr Bentivoglio also considered the incident on 2 July 2020 and said this reignited the neck pain going into his left shoulder, so exacerbated the original injury of 31 January 2020. He also diagnosed a lumbar injury and repeated that Mr Shipley did not have lumbar symptoms before the second incident. In relation to the proposed cervical surgery Dr Bentivoglio said this was to help discogenic neck pain and had a 60 to 70% chance of success. He said that Mr Shipley had extensive conservative treatment including physiotherapy, injections and medication and so he either has to live with his pain not, which the doctor felt was unsatisfactory, or have the surgery. He says the surgery offers some benefit but will not result in him being able to return to work. 67. Dr Hsu provided a report for Mr Shipley's lawyers on 10 August 2022.[86] The first question he was asked is whether Mr Shipley sustained an injury to his cervical spine on 2 July 2020 in the course of his employment with the respondent. Dr Hsu responded by stating that he first reviewed him on 27 November 2020 who has been experiencing significant periscapular, thoracic and lumbar back pain. Dr Hsu stated

"He sustained the injury while lifting heavy objects at work...the nature of his employment as well as the description of the two work injury sustained I believe are the main contributing factors to his cervical spine pathology. I am unaware of any pre-existing conditions."

1. Dr Hsu does not deal with the mechanism of injury or delay in cervical complaints. He refers to the pathology on the MRI scan at C6/7 and C7-T1 and that he has significant cervical radiculopathy with neck pain, shoulder pain and upper limb pain as well.
2. Dr Hsu also answered a second question as to whether the proposed surgery was reasonable and necessary treatment. This is not the test under s 60 of the 1987 Act which refers "reasonably necessary". However, as various authorities have remarked reasonable and necessary is a higher test. Dr Hsu advises as Mr Shipley has exhausted nonoperative management through injections and pain management surgery is now necessary. He adds that the type of surgery proposed allows greater access to the intervertebral disc and therefore a higher rate of fusion and to allow removal of the disc in its entirety as opposed to the situation when a posterior approach is used.
3. On 3 March 2023 Dr Casikar provided a supplementary medico-legal report.[87] He says he does not agree with Dr Hsu's diagnosis which seems to be based entirely on the radiological findings. He says neck pain is common to both shoulder problems and neck issues and in the absence of clinically verifiable neurological findings he thinks the neck pain is due to the shoulder injury. He says the pathology in the neck is due to constitutional degenerative disease of the cervical spine. He does not believe the neck symptoms should be treated by a cervical fusion and he is of the opinion the shoulder surgeon should treat the shoulder.
4. On 4 October 2023 Dr Yousaf reported to Mr Shipley's solicitors that the first injury on

31 January 2020 resulted in thoracic back pain and associated neck pain, that he was having neck pain with cervicogenic headaches, limited range of neck movements and numbness of his right thumb. She referred to the CT cervical spine scan findings. She says he was cleared to go back to work on 24 April 2020. In relation to the second work incident on 2 July 2020 Dr Yousaf says there was anew onset of lower back pain radiating to the legs and exacerbation of thoracic back pain. She adds that there was cervical and thoracic spine pain as per physiotherapist's report. Dr Yousaf expresses the opinion that Mr Shipley started having neck problems since the injury in January 2020 and later exacerbated it in the injury in

July 2020 although she says the neck pain and stiffness was not very obvious after the second injury possibly due to back and thoracic pain being the major source of pain. She says she agrees with Dr Hsu's opinion about the neck problems being caused by the initial injury and the second injury exacerbating it. She says both injuries were clearly sustained at work and were due to lifting at work. She says there are no other known contributors of his neck pain.[88] 5. Mr Shipley provided a further statement dated 1 November 2024.[89] He says since the injury on 31 January 2020 he has experienced pain in his neck, where it meets the top of his back and extending down his back as far as his lumbar spine and discomfort across his left shoulder. He says initial treatment was focused on his back and he took Endone, Targin and Panadeine Forte and he says this masked his symptoms in that it reduced the pain in both his back and neck and he thought the treatment he was getting helped both his back and neck and so he says there was no need to make a point to his doctors that he was getting neck pain as well as back pain. He says following the July 2020 incident he had an aggravation of his neck, back and left shoulder pain and the investigation of his neck pain did not properly commence until he was referred to Dr Hsu who told him the MRI scan of his neck on 23 December 2020 that the discs in his neck were compressing the nerves in his neck. 6. On 22 January 2025 Dr Fuller, neurosurgeon, provided a medico-legal report to the insurer.[90] On examination the doctor found that Mr Shipley was reluctant to move his neck due to pinching sensation in the left trapezius region. He says that all formal testing of power in the upper limb reproduced left trapezius cervical symptoms. Left shoulder movements reproduced pain in the region of the left anterior shoulder and tenderness. In answer to the question "has the accepted work-related injury/condition resulted in a permanent impairment?" The doctor answered that Mr Shipley had a reduced range of movement of the cervical spine. Given the insurer had denied cervical injury this question is poorly phrased and as a result the report does not assist the respondent's case. 7. On 25 August 2025 Dr Bentivoglio provided a further report after re-examination to Mr Shipley's solicitors.[91] On examination he found neck movement at 50% normal range. He had bilateral decreased shoulder movement. Tone and power were normal in the upper limbs. Dr Bentivoglio expresses the opinion that the incident on 31 January 2020 exacerbated some pre-existing degenerative changes in his cervical spine and he refers to disc bulges at C6/7 and C7/T1. He found no neuropathic pain and no radiculopathy. But significant sensitisation of pain syndrome. He noted he suffered from depression. The doctor also opined that the second incident at work exacerbated that injury and aggravated the pre-existing degenerative changes in the cervical spine. The doctor was asked if he agreed with the opinion of Dr Hsu that the proposed cervical surgery was reasonably necessary. His answer is somewhat guarded in my view. He says if Dr Hsu is satisfied that Mr Shipley has had all forms of conservative treatment he can consider the operation or live as he is. He adds that the results of this sort of surgery are very difficult to predict and he may get no benefit at all and he certainly will not get back to pre-injury duties. 8. Dr Bentivoglio says he agrees with Dr Casikar that Mr Shipley had a condition in his cervical spine of pre-existing cervical spondylosis but finds this was aggravated by the two work incidents. He also explains that the shoulder is a significant contributing factor as well. 9. Dr New provided a medico-legal report to the insurer dated 26 August 2025.[92] It is of limited assistance to me as the doctor does not consider the first work injury. He says after the injury on 2 July 2020 he had instantaneous pain in his cervical spine, left shoulder and lumbar spine with the worst pain being the cervical spine. He says he was off work for six weeks and had to cease all social activities including boxing coaching and he subsequently was able to return to work on light duties. This is incorrect because after the second incident Mr Shipley did not return to work. He also refers to Mr Shipley being reviewed by Dr Anthony Smith yet it was Dr Nicholas Smith who treated him for his shoulder. Dr New says he had no correspondence from Dr Hsu. The doctor assessed permanent impairment. 10. A supplementary report was sought from Dr New which he supplied dated 26 August 2025.[93] In several places Dr New states that he does not have many clinical notes available to him or investigations. He seems to support that the surgery is reasonably necessary. It is extraordinary that the insurer did not correct the doctor that there were two dates of injury involved. I find I cannot rely upon Dr New's opinions expressed in these reports because of the errors in his reports. The situation is unsatisfactory and the insurer seems to have been aware of the deficiencies in Dr New's reports as is evident from the email correspondence with Mr Shipley's solicitor. 11. However, on 16 September 2025 the respondent's solicitors wrote to Dr New.[94] They advised Dr New of his incorrect history and of the incident on 31 January 2020 which involved attendance by ambulance and transfer to Blacktown Hospital. They gave the doctor these records but the balance of the letter was focused on evidence post the 2 July 2020 incident. They advised Dr New that Mr Shipley had an accepted claim in relation to the injury on

2 July 2020 for the thoracic spine and lumbar spine and one of the questions asked of the doctor to identify what was the first date after 2 July 2020 that there were complaints affecting the cervical spine and left shoulder. 12. Dr New provided a report dated 19 September 2025 asserting he needed to examined Mr Shipley again. On 13 October 2025 Dr New wrote to the respondent's solicitors advising Mr Shipley did not attend an appointment arranged for 8 October 2025 and not unreasonably declined to be further involved in the matter. 13. On 7 October 2025 the respondent's solicitors wrote to Dr New again sending many documents and asking the doctor whether he maintained his view that Mr Shipley injured his cervical spine in the incident on 2 July 2020. 14. On 23 October 2025 Dr Fuller provided a further report for the respondent after re-examining Mr Shipley again on 30 September 2025. The doctor appears to have been provided with all of the documents. He records the history of the January 2020 incident and says Mr Shipley said he tried to point to the ambulance officers the top of his spine and called it his "back" and when he attended his GP the next day he did the same. However, six weeks later he asked Dr Yousaf "could it be my neck?" and the CT cervical spine scan was arranged. Dr Fuller has the history that Mr Shipley tried physiotherapy which only aggravated his symptoms. He commenced work on light duties and then began performing normal work despite the non-resolution of his symptoms. 15. Dr Fuller has the history of the second incident on 2 July 2020 where he was knocked off his feet with a box landing on top of him and he stated he jarred his neck against the container. He says Mr Shipley could not recall when he first saw Dr Hsu but he arranged an MRI scan in August 2021 at which time Dr Hsu suggested his symptoms were related to bulging discs. 16. On examination Dr Fuller found the range of movement of the cervical spine was less on formal testing compared during the remainder of the consultation. He says he has maintained a muscular physique despite his alleged inactivity. Dr Fuller found formal testing of power in the upper limbs reproduced pain in the cervicothoracic region even with finger flexion and extension. 17. Dr Fuller advised that the CT cervical scan of 4 March 2020 demonstrated chronic degenerative change at C5/6 and C6/7 levels which would have been present prior to the injury. He adds "these may have contributed certainly to his presentation related to the two incidents described". The doctor diagnosed that Mr Shipley has non- verifiable cervical and lumbar pain with radicular complaints which he causally relates to the injuries of January 2020 and July 2020. He states the injury in July exacerbated ongoing symptoms from the injury in January according to the history supplied by Mr Shipley. Dr Fuller advises

"Upon reviewing the CT cervical spine 4 March 2020 and MRI Cervical spine

28 January 201 (IMED) and 24 August 2021 (Synergy) the left C7 foraminal narrowing may have been the result of an acute C6/7 disc herniation on the background of significant spondylosis however an MRI was not performed closer to the time of the injury.

A C6/7 disc herniation may present with interscapular pain that is- in the region of the lower cervical /upper thoracic spine although typically would also lead to radicular pain radiating to the upper limb. The current upper limb sensory symptoms would be more consistent with a C8 radicular compression however could be C7."

1. Dr Fuller gives answers to question seven and in relation to the event in January 2020 says Mr Shipley has sustained an aggravation of his underlying cervical spondylosis resulting in cervical pain and upper limb symptoms. He concedes there may have been identifiable pathological change that could have been evident if an MRI scan had been performed earlier. He advises that the cervical injury of January 2020 has not resolved and that there are no objective imaging findings that clarify resolution of an injury.
2. In response to question eight Dr Fuller says the incident of 2 July 2020 further exacerbated the January injury. His response to question nine refers to the delayed MRI of 28 January 2021 (IMED) and he says this is more consistent with an acute C6/7 disc herniation, the timing of the exact nature of the onset of this imaging finding is not determinable.
3. In relation to the questions as to whether the proposed surgery is reasonably necessary treatment Dr Fuller says it may be as a result of both injuries on the balance of probabilities. He adds if a current MRI demonstrates similar findings then a left C7 perineural injection +/- a C8 injection may clarify Mr Shipley's current symptoms and the potential response to the proposed surgery. Dr Fuller says Mr Shipley's abnormal illness behaviour during the examination clouds the assessment and the relevance of the imaging findings.
4. Dr Fuller was asked would he recommend alternative treatment to the proposed surgery. His response is that there is no surgical treatment he would recommend in regard to the cervical spondylosis, cervical fusion for cervical pain is unlikely to alter this component of his problem. He said the further testing could clarify treatment options possibly relating to the disc herniation and foraminal narrowing causing radicular symptoms. His answer to question 15 allows that there could be a component attributable to the pre-existing cervical spondylosis even though it was allegedly asymptomatic. The doctor says the two incidents should not be separated given Mr Shipley claims not to have recovered from the January 2020 incident when the 2 July 2020 incident occurred.

1. I have not set out the parties' submissions verbatim because they have been sound recorded and a written transcript is available. However, I refer to the main thrust of the submissions, where relevant, when making my determination.
2. Determination of this matter has been complicated because in relation to the injury on

31 January 2020 the ambulance records and that of Blacktown Hospital on the day of the incident do not refer to the cervical spine at all. 3. Mr Shipley in his first statement which was not made until two and a half years later says on 31 January 2020 he was driving a forklift in the warehouse unloading pallets from shipping containers. He says he noticed a pallet was leaning and appeared it was going to fall so he alighted from the forklift and attempted to push the pallet into a more secure position. He states in doing this he felt a crack in his neck, and pain in his left shoulder and mid and lower back. 4. The ambulance officers record he was alert, orientated and speaking in full sentences. They record he complained of pain in the thoracic region of the back and complained of numbness and tingling down his right lower leg. They administered pain relief. Mr Shipley's more recent statement attempts to address this absence of record of cervical symptoms by stating that the pain in his neck was where it meets the top of his back. He told Dr Fuller in his second examination that he tried to point to the ambulance officers to the top of his spine and he called it his "back". I find this difficult to accept that he would not have told the ambulance officers he had pain in his neck given in his statement he felt a crack in his neck and he was experiencing very significant pain in his neck. The hospital notes in several places refer to his complaints as being in the "thoracic/ back pain" and he had normal upper limb neurological examination. There is also a record of no headstrike or loss of consciousness. 5. Mr Shipley also says in his recent statement that his initial treatment was focused on his back and he took Endone, Targin and Panadeine Forte and these masked his symptoms. There is no medical evidence to support cervical symptoms would have been masked. Again I find this explanation difficult to accept because when he saw Dr Yousaf he told her he felt a snap in his upper back in the incident and the doctor recorded he was tender in the left paraspinal T4-6. It seems logical that if he was able to complain about pain in the thoracic area despite taking pain medication that he could have also complained about neck pain. 6. However, having expressed my reservations about Mr Shipley's contentions it is relevant to note that the physiotherapy notes for February 2020 do state that Mr Shipley felt pain on the "left side of upper/ mid back and into head". While this is not a reference to the cervical spine it does, in my view, illustrate that Mr Shipley's report of pain was not confined to just the thoracic area. On 28 February 2020 Annaleise Barton, physiotherapist wrote to Dr Yousaf about the thoracic spine but noted he had reported the occasional headache. On

2 March 2020 the first definite record of cervical pain is recorded by Dr Yousaf. I regard what she has written has significance because she states, "initially neck pain was not much but now cervicogenic headaches." Also it is significant in my view that she found limited range of neck movements. At [24] above I have reproduced what the doctor wrote in her notes when requesting the CT cervical scan which for ease of reference I repeat below:

"(neck pain since injury at work, severe jolt in neck and upper back while trying to stop a large load from forklift. Limited range tender at C2 midline and paraspinal right hand C6 pins and needles with numbness. Please exclude any bone or ligament injury/ disc bulge with possible radiculopathy"."[95]

1. This is only four weeks and a couple of days since the incident on 31 January 2020. There are no pre-injury medical records available because Mr Shipley was a new patient when he first consulted Dr Yousaf. He says he had no prior neck symptoms which I have to accept as it is not contradicted. It is clear from the CT scan findings that he must have had asymptomatic degenerative changes in his neck as Dr Bentivoglio, Dr Casikar and Dr Fuller have found.
2. Mr Shipley's counsel submitted that the nature of the injury on 31 January 2020 involved a pushing motion on the pallet something that would convey force through the shoulders, the neck and into the lumbar spine.[96] There is no medical evidence about the forces involved so I do not place weight on this aspect of the submission.
3. However, I find that it is more likely than not on the balance of probabilities that Mr Shipley did sustain an injury to his cervical spine on 31 January 2020 at work even if there was a delay in him reporting or even experiencing symptoms. The fact that Dr Yousaf ordered a CT scan of the cervical spine within a comparatively short period of time after the incident I find is consistent with an injury having occurred and the most likely explanation he did aggravate his underlying asymptomatic changes in his cervical spine. In support of this finding I have relied upon the opinion of Dr Fuller because I find he has the most comprehensive understanding of the sequence of events and he had all the early clinical material before him and was not just reliant on Mr Shipley's statements. Dr Fuller has considered in some detail the significance of the radiological findings and has supported that an injury did occur.
4. The other specialists have based their opinions on histories that are not always consistent with the contemporaneous medical records.
5. I prefer the opinion of Dr Fuller to that of Dr Casikar because it is more thoroughly reasoned and considered. Dr Casikar in my view has not considered that the incident on

31 January 2020 could have aggravated the underlying degenerative changes. 6. I am satisfied that the applicant has established an injury to his cervical spine under s 4(a) of the 1987 Act. As was discussed during the hearing, Rail Services Australia v Dimovski & Anor[97] is authority for the proposition that a s4(a) personal injury can be established if the incident at work gave rise to an aggravation of underlying disease. 7. The next issue to consider is whether this injury did resolve as has been contended by the respondent in various dispute notices. Mr Shipley's evidence is that when he returned to work he still had cervical pain. I accept his counsel's submission that the entry by Dr Yousaf on 10 March 2020 while referring to him slowly improving, was in the context of him having physiotherapy treatment and did not identify what body part was improving. I find the entry on

18 March 2020 confirms that Mr Shipley, having returned to work, did continue to have neck pain. 8. The second incident occurred on 2 July 2020 when he was lifting a box, lost his balance and fell on his left side while holding the box. In his statement he says he immediately experienced sharp shooting pain radiating from his neck and left shoulder. Dr Yousaf's entry on 10 July 2020 does not refer to the cervical spine, the pain was at L5 and T7-8. She did not order radiology of the cervical spine. I have summarised Dr Yousaf's clinical entries and that of the physiotherapists Mr Ting and Dr T B Dang above and there is no immediate mention of the cervical spine. On 16 October 2020 Dr Yousaf did request a CT scan of the cervical spine. Mr Ting, in about 24 October 2020, reported that Mr Shipley in previous treatment sessions had reported worsening cervical spine pain. 9. So about three months after the second incident various practitioners have recorded cervical spine pain, which was described as above as worsening. 10. By November 2020 Mr Faker, another physiotherapist, reported significant left sided muscle stiffness paraspinal along the cervical and thoracic spines. In December 2020 Dr Hsu referred to neck pain and on 14 January 2021 he arranged for an MRI scan of the cervical spine. 11. The treating practitioners during this time were investigating the left shoulder and Dr Smith and Dr Hsu both considered whether the cervical spine was the cause of his problems. His cervical spine was treated with physiotherapy, medication and injections. He was referred for pain management. All of these records have been summarised above. 12. Mr Shipley's counsel submitted that he consistently told those treating him that his neck pain was from the workplace injury such as the history in the Ryde Hospital records on

29 April 2021. His counsel also relied upon the history given to Dr Nazha that after the first injury he took time off work, then returned to work and in the second injury suffered severe pain in the cervical spine and left shoulder. He submitted that injury is established under

s 4(a) for the incident on 31 January 2020 and even though there is a delay in reporting cervical symptoms after the second incident Mr Shipley has provided a statement that he did suffer increased neck pain after this incident. 13. Again I have found the opinion of Dr Fuller to be of the most assistance as he has the history that is the most consistent with the contemporaneous clinical notes which he had access to and I find he has given careful thought to the radiological findings. He has expressed the view that the July incident did cause aggravation of the prior cervical spine injury and he says one should not separate the effects of the January and July 2020 events. He has questioned Mr Shipley and has accepted that he has had ongoing cervical pain. Dr Yousaf treated Mr Shipley from the time of the first incident and she is of the opinion that both incidents have caused the cervical symptoms that have persisted. She does acknowledge that after the July incident the neck pain and stiffness was not very obvious which she attributed to the back and thoracic spine being the major source of pain. 14. The respondent's counsel was critical of Mr Shipley because at times his description of the injuries changed and could be dramatic such as telling Dr Duckworth he felt an explosion from the neck down. I have carefully considered Mr Shipley's statements and histories to the doctors and I find him to be an unreliable historian. It is for this reason I have carefully set out the medical evidence in chronological order to gauge the contemporaneous accounts of both events. It is evident that after both incidents there is no contemporaneous record of cervical spine injury or pain. In some cases this would be enough reason to find that injury to the cervical spine did not happen at work. However, I have explained that Dr Yousaf ordering the CT cervical spine scan only weeks after the incident on 31 January 2020 is powerful evidence that the doctor was concerned about the cervical spine. 15. The respondent also challenged whether the reports that Mr Shipley was suffering from headaches could be evidence that he had injured his cervical spine. He submitted that the neurologist did not make this link and even though Dr Yousaf refers to cervicogenic headaches she identified pain at the C2 level, which was submitted is not the site in the cervical spine which is alleged to have been injured. The entry of 2 March 2020 says "initially neck pain was not much but now cervicogenic headaches" and the doctor indicated there was tenderness at C2 area at the base of the skull. However, as the respondent acknowledged, the doctor also says there was right hand C6 pins and needles and numbness. The respondent's counsel says the disc bulge is at C6/7 which is the C7 dermatome. I consider the respondent's position is taking an overcritical approach to this evidence. The applicant's counsel submitted in reply that there is a bit of uncertainty about precisely what dermatome distribution is involved but the evidence is supportive of the finding that something of significance has occurred to render the cervical spine symptomatic. The applicant relies on the respondent's medico-legal neurosurgeon, Dr Fuller, who by the time of his second examination has all the evidence available to him but nonetheless does support there was an injury to the cervical spine in both incidents on the balance of probabilities. 16. The applicant also submits that, having been injured, there has been progression of symptoms over time and the fact that in 2021 there was the deterioration the respondent submitted about does not mean there was not an initial injury. The applicant's counsel says one needs to ask why the symptoms started in the first place and he submits injury is the most logical cause, as the alternative is there was a spontaneous occurrence while Mr Shipley was experiencing other significant problems such as in the thoracic spine and left shoulder. I accept this submission. The applicant also relies upon the report of Dr Yousaf of 4 October 2023. He argues that the doctor has treated Mr Shipley throughout and supports there was injury to the cervical spine. The respondent is critical of the doctor's opinion and submits it is influenced by the letter of instructions from Mr Shipley's solicitors. However, I accept the submission of Mr Shipley's counsel that when the letter of instruction is read in its entirety it does not ask the doctor to assume any particular facts and seeks an answer to the question as to whether Mr Shipley experienced neck pain from the initial accident and whether such symptoms continued after the second accident. 17. Even though the evidence is not clear cut, I am nonetheless persuaded by the opinion of Dr Fuller and I find on the balance of probabilities that Mr Shipley did suffer some exacerbation of his prior cervical injury in the second incident. Such a finding satisfies s 4(a) of the 1987 Act. 18. The remaining issue to determine is whether the proposed surgery is reasonably necessary treatment as a result of the two injuries. The respondent when asked at the outset of the hearing if both limbs of s 60 were in issue advised they were and stated that it is relevant in terms of causation to take into account that Mr Shipley had pre-existing degenerative changes in his cervical spine. However, I have found that both injuries aggravated those changes and there is no evidence that Mr Shipley was symptomatic before the injury on

31 January 2020. There is mention in various histories that in the past he did some boxing coaching however, there are no pre-injury medical records available. Mr Shipley says he never had cervical problems previously and I must accept that unchallenged evidence. 19. There is scant evidence that the surgery is to only treat the underlying degenerative condition. Dr Fuller has explained why on balance of probabilities he has accepted there was a cervical injury and pathological change caused by the two workplace injuries. I have preferred his opinion to that of Dr Casikar because Dr Casikar, in my view, has not sufficiently considered whether the two events could have aggravated the underlying pathology in the cervical spine. Dr Bentivoglio is somewhat equivocal in relation as to whether he believes the surgery is reasonably necessary and really defers to Dr Hsu. I did not rely on Dr Bentivoglio's opinion in coming to the determination about injury because he did not have a complete history. Similarly, I rejected Dr New's opinion and the respondent did not rely upon it. 20. The respondent's position is that there is no clear evidence that the type of surgery being proposed is the right surgery for Mr Shipley. It submits that Dr Bentivoglio is of the view he will have a poor outcome and Dr Fuller recommends further diagnostic tests be done. 21. Dr Fuller does not advocate an alternate cause for the proposed surgery to the cervical spine. In relation to the questions as to whether the proposed surgery is reasonably necessary treatment Dr Fuller says it may be as a result of both injuries on the balance of probabilities. He adds if a current MRI demonstrates similar findings then a left C7 perineural injection +/- a C8 injection may clarify Mr Shipley's current symptoms and the potential response to the proposed surgery. Dr Fuller says Mr Shipley's abnormal illness behaviour during the examination clouds the assessment and the relevance of the imaging findings. 22. Dr Fuller was asked would he recommend alternative treatment to the proposed surgery. His response is that there is no surgical treatment he would recommend in regard to the cervical spondylosis, cervical fusion for cervical pain is unlikely to alter this component of his problem. He said the further testing could clarify treatment options possibly relating to the disc herniation and foraminal narrowing causing radicular symptoms. 23. Dr Fuller allows that that the proposed surgery may be reasonably necessary on the balance of probabilities. Even though he does suggest further testing take place to assist clarification of Mr Shipley's current symptoms, I consider that the point has been reached where this is best left to the judgement of the treating surgeon, Dr Hsu. He may consider that before he operates he wants to commission updated testing or scans to inform him, particularly since he first recommended the surgery in 2021. The evidence in this matter, where the cervical condition has been ongoing and affected by the doctors considering if the left shoulder was contributing to the cervical symptoms, has meant there has been delay. Delay has also been occasioned due to the way the matter has progressed through the Commission. Because there was a lack of record immediately after both injuries about the cervical spine, Mr Shipley giving differing histories over time and this delay the issues have been difficult to determine. As I have found Dr Fuller, who was well briefed and seen the applicant twice, is aware of these issues and that Mr Shipley seems to have developed an illness behaviour or at least psychological problems. Nonetheless he has quite fairly supported a finding of injury in respect of both incidents and as I have found above on the balance of probabilities says the proposed surgery could be found to be reasonably necessary. 24. In the case of Diab v NRMA Ltd[98] Roche DP found the relevant principles when considering the "reasonably necessary" aspect of s 60 of the 1987 Act was as follows:

"[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:

(a) the appropriateness of the particular treatment;

(b) the availability of alternative treatment, and its potential effectiveness;

(c) the cost of the treatment;

(d) the actual or potential effectiveness of the treatment, and

(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts."

1. I find that these criteria have been satisfied by the applicant in this case. The cost has not been raised as a particular factor against proceeding with surgery. There is a real question as to how effective the surgery will be, even Dr Hsu acknowledges it will not eliminate all symptoms. However, he does rate the prospect of improvement at more than 50%. Dr Casikar makes the point that the surgery will not render Mr Shipley able to return to pre-injury duties. I find this is not determinative. Even if someone cannot return to pre-injury duties if there is a significant chance of improvement in day to day symptoms, I consider that it a relevant matter in favour of having the surgery. Mr Shipley's expectation of what the surgery will achieve will need to be managed and he may require the assistance of psychological counselling and pain management services. It is in his interests for Dr Fuller's reports to be made available for Dr Hsu to consider, however as I have found I do not consider that the determination as to whether the surgery is reasonably necessary should be deferred until after Dr Hsu examines Mr Shipley again pre-surgery. If Dr Hsu does perform further testing and the result is that the type of surgery he has recommended is no longer appropriate, then one trusts that a specialist would not proceed with it.
2. On the available evidence I find that the proposed surgery is reasonably necessary treatment as a result of injury to the cervical spine in the incidents at work on 31 January 2020 and 2 July 2020. I order that the respondent pay the costs of and incidental to the surgery at the appropriate SIRA fee order rates.

[96] The transcript at T11.24 refers to a not transcribable portion at 00:15:53. I have listened to the sound recording and at 00:09:18 Mr McManamey made the submission I have set out above.

[97] [2004] NSWCA 267, Dimovski.

[98] [2014] NSWWCCPD 72, Diab.