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Harvey v the Workers' Compensation Regulator[2015] QIRC 212

Harvey v the Workers' Compensation Regulator[2015] QIRC 212

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Harvey v the Workers' Compensation Regulator [2015] QIRC 212

PARTIES:

Harvey, Andre Scott

(Appellant)

v

the Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2015/17

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

14 December 2015

HEARING DATES:

18, 19 and 20 May 2015

2 June 2015 (Appellant's supplementary submissions)

8 June 2015 (Respondent's supplementary submissions)

9 June 2015 (Appellant's supplementary submissions in reply) 

HEARD AT:

Gympie (18 May 2015) and

Brisbane (19 and 20 May 2015)

MEMBER:

Deputy President Bloomfield

ORDERS:

  1. Appeal allowed.
  2. Mr Harvey's Application for Workers' Compensation dated 10 December 2013 is one for acceptance. 
  3. The Regulator is to pay the Appellant's costs of, and incidental to, the Appeal with recourse to the Commission if necessary. 

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Whether injury arose out of, or in the course of, employment - Whether employment was a significant contributing factor - Medical evidence - Burden of proof - Requirement to establish employment was a significant contributing factor to injury - Incident involving air lock in concrete hose - Accepted soft tissue injury to neck and shoulder - Claim for discal type injury not accepted - MRI investigations - Conflicting medical evidence - finding that employment was a significant contributing factor to injury - Appeal allowed.  Costs Awarded. 

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32

Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision .

APPEARANCES:

Mr S. Sapsford of Counsel, instructed by
Mr M. Manthey of Neilson Stanton & Parkinson

for the Appellant.

Ms J. McClymont of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent, with Ms J. Webb. 

Decision

  1. [1]
    On 10 December 2013 Mr Andre Scott Harvey made application for workers' compensation for an injury sustained on 5 December 2013 in the course of his employment as a Line Hand, pumping concrete at a construction job in Gladstone.  WorkCover Queensland (WorkCover) accepted the Application as a "shoulder strain", i.e. a musculoligamentous or soft tissue injury.  However, WorkCover did not accept that a disc bulge at C5/6 identified by MRI scans conducted on 20 February 2014 and disc bulges at C4/5 and C5/6 identified in a subsequent MRI scan on 2 September 2014 could be attributed to the events of 5 December 2013 and declined to accept those injuries as part of Mr Harvey's claim for compensation. 
  1. [2]
    Pursuant to an Application for Review dated 10 October 2014, the Review Unit of the Workers' Compensation Regulator (the Regulator) confirmed the decision of WorkCover that the personal injury diagnosed as C4/5 and C5/6 disc bulges did not arise out of
    Mr Harvey's employment and that his employment was not a significant contributing factor to the injury.  It is the decision of the Regulator which Mr Harvey now appeals to the Queensland Industrial Relations Commission (the Commission).  

The incident of 5 December 2013 and subsequent medical investigations

  1. [3]
    The nature of the incident on 5 December 2013 and subsequent, early, medical investigations/treatment is conveniently set out in the Report of Dr Scott Campbell, Consultant Neurosurgeon (who gave evidence for Mr Harvey), dated April 2015, which I record below.  For purposes of providing additional clarity I also include the names of relevant doctors, in italics, at the appropriate points in the history:

"Mr Andre Harvey stated that he was involved in a work accident on 05 December 2013.  At the time he was operating a concrete pump hose at a worksite in his capacity as concrete pumper.  Whilst performing his activities, an air lock developed in the hose causing an explosion of concrete from the hose.  He was thrown into the air and jarred his neck and torso.  He noted immediate onset of neck pain and increasing right shoulder pain and right upper limb numbness.

Mr Harvey presented to the Gladstone Hospital on the day of the accident complaining of the above symptoms.  X-rays of the right shoulder were performed and showed no fractures or dislocations.  He was fitted with a shoulder sling and discharged. 

Mr Harvey attended upon his local doctor (Dr Haydock) complaining of ongoing neck pain symptoms.  Treatment was with Panadol Osteo, Nurofen, Celebrex, Valium, Lyrica, MS Contin, physiotherapy and acupuncture.  He was commenced on an antidepressant medication.

Mr Harvey was referred to an orthopaedic surgeon (Dr Nutting) for an opinion.  An MR scan cervical spine was performed and showed a central/right C5/6 disc protrusion.  Treatment was conservative.

Mr Harvey was referred for a neurosurgical opinion (Dr Reid).  He complained of ongoing neck pain and right upper limb pain.  The MR scan cervical spine was reviewed and the diagnosis of right C5/6 disc protrusion was confirmed.  Surgery was not advised as his main complaint was neck pain as opposed to right upper limb radicular pain. 

Mr Harvey was referred to a pain specialist (Dr Frank) for an opinion.  He underwent a cervical epidural injection."

  1. [4]
    Dr Campbell also provided a basic chronology of the dates of Mr Harvey's visits to particular specialists and a brief summary of their opinion/diagnosis.  I have added to this chronology by including a reference to Mr Harvey's visit to Dr Frank as well as details of the results of MRI scans conducted on 20 February 2014 and 2 September 2014, respectively:
  • Dr G. Nutting, Orthopaedic Surgeon:  reported on 04 February 2014 that the diagnosis was that of possible neuritis or Parsonage-Turner Syndrome (acute brachial neuropathy).  (Dr Nutting also referred Mr Harvey for an MRI of his shoulder and cervical spine)
  • Dr J. Evans, Sunshine Coast Radiology:  reported on 20 February 2014 that "at C5/6 there is a broad-based disc bulge more prominent on the right than the left.  This does not compromise the cord but does produce a mild to moderate right foraminal stenosis".  However, Dr Evans also reported "there is significant motion artefact partly degrading the images".
  • Dr A. Reid, Neurologist:  reported on 11 March 2014 that Mr Harvey did not have Parsonage-Turner Syndrome.  There was no neurological work-related condition. 
  • Dr P. Frank, Anaesthetist and Pain Management Specialist:  reported that he performed an epidural steroid injection on 9 May 2014.
  • Medical Assessment Tribunal Decision, dated 23 July 2014:  reported a diagnosis of soft tissue injury of the cervical spine and right shoulder.
  • Dr T. Malone, Noosa Radiology:  reported on 2 September 2014 that "at C5/6 there is a prominent posterior broad based right paracentral/proximal foraminal disc protrusion.  The disc abuts and flattens the right side of the cervical cord.  No cord myelomalacia.  There is compression of the existing right C6 nerve root.  At C4/5 there is a broad based disc bulge.  This disc abuts and flattens the anterior surface of the cervical cord.  No neural compromise".  
  • Dr B. Donnelly, Orthopaedic Surgeon:  reported on 16 September 2014 that he was unable to associate the ongoing symptoms with any specific pathology.
  • Dr G. Ballenden, Occupational Physician, reported on 28 October 2014 that the diagnosis was that of soft tissue injuries of the cervical spine and right shoulder with a 0% impairment.  

Matters for determination

  1. [5]
    The Appeal to the Commission is by way of a hearing de novo.  It is for Mr Harvey to establish on the balance of probabilities[1] that he did sustain an injury within the meaning of section 32(1) of the Workers' Compensation and Rehabilitation Act 2003 (the Act).  Section 32 relevantly provides that an injury is a "personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury". 
  1. [6]
    It is not in dispute that Mr Harvey was a worker within the meaning of section 11 of the Act nor that he sustained an injury consisting of a disc bulge or protrusion at C5/6 of his cervical spine.  What is in dispute, and thus the question for determination in this Appeal, is whether it can be established on the balance of probabilities that
    Mr Harvey's discal pathology at C4/5 and/or C5/6 is an injury arising out of, or in the course of, his employment and whether his employment was a significant contributing factor to the injury. 

Evidence

  1. [7]
    Evidence was provided by 10 witnesses, made up as follows:
  • Called by Mr Harvey:
  • Andre Scott Harvey
  • Judi-Ann Harvey
  • Dr Dominica Ho (not required for cross-examination) who conducted a
    pre-employment assessment on 2 October 2013 for Mr Harvey's then employer in connection with a position of concrete pump line hand
  • Dr Katie Haydock
  • Dr Paul Frank
  • Dr Scott Campbell
  • Called by the Regulator:
  • Dr Gregory Nutting
  • Dr Alison Reid
  • Dr Bill Donnelly
  • Dr Gavin Ballenden

Evidence called on behalf of Mr Harvey

  1. [8]
    Mr Harvey said that prior to the incident in December 2013 the only time he experienced radicular symptoms was when he strained the muscles in his forearm from excessive use of a sledge hammer several months previously.  He also agreed he consulted
    Dr Haydock in February 2013 regarding problems with his right arm, saying these issues arose after he overused it, with the symptoms lasting two weeks at most. 
  1. [9]
    Under cross-examination about the February 2013 consultation with Dr Haydock,
    Mr Harvey accepted he consulted her about losing strength in his right arm, with pins and needles after performing activities over the previous three weeks, and being unable to close the shears while pruning the previous day.  However, he denied he suffered these symptoms for any longer than three weeks stating that if something like that happened he would go and see a doctor. 
  1. [10]
    When pressed as to why he did not report the fact that he had previously experienced pain in the neck region in February 2013 to any of the doctors and specialists he visited in 2014, Mr Harvey said it was something he had forgotten about because he assumed he had just pulled a muscle and "it sorted itself out". 
  1. [11]
    When cross-examined about the nature of his symptoms in the 8-9 months following the incident on 5 December 2013, Mr Harvey was unable to recall, to any level of detail, the exact nature of his symptoms from day-to-day or week-to-week.  However, he was able to state that he remembered times where he had symptoms in both arms, experienced muscle spasms in both shoulders (more severe on the right) and neck, and had pins and needles and numbness in his right arm with the muscle spasms.
  1. [12]
    Mr Harvey also agreed he visited Dr Haydock in early September 2014 after he experienced a "sudden" onset of pins and needles and lost the power in his right arm and that she referred him for an urgent MRI.  He also agreed that following the MRI she informed him it showed signs of disc protrusion and some compression of the nerve cord and referred him to Dr Campbell.  However, he rejected the proposition put to him that when he woke up on that morning, with those "sudden" changes in his right arm, he had not been having any neurological symptoms in the weeks and months beforehand.  He said he did have numbness and pins and needles before that but the difference on the day he went to see Dr Haydock was the intensity.
  1. [13]
    Mrs Judi-Ann Harvey said that when her husband came home from Gladstone after his accident he reported he had pain in his neck, tingling in his fingers and on the right arm and numbness on the outside of his arm, radiating up to the shoulder.  She was not sure how long these symptoms lasted, he had them for a little while, but then they would come back if he moved his arm in the wrong way. 
  1. [14]
    Under cross-examination, Mrs Harvey agreed that the pins and needles and numbness her husband experienced had resolved by the time she accompanied him to his appointment with Dr Frank on 19 March 2014.  She also agreed that the pins and needles and numbness came back one morning in September 2014 when her husband woke up with those symptoms. 
  1. [15]
    However, when pressed to agree that her husband had not experienced neurological symptoms between March and September 2014, Mrs Harvey declined to agree saying that the symptoms weren't there all of the time, he could go maybe three days without them, and then he could wake up and have them again.  "It was always in his neck and his arm part would differ each day… he'd always have pain.  The only thing that changed was the numbness and the tingling.".  She also said that the distribution of the numbness and pins and needles could vary from day-to-day to different parts of the arm and the hand. 
  1. [16]
    In the course of her unchallenged statement of evidence, Dr Dominica Ho recorded that she examined Mr Harvey on 2 October 2013 for the purpose of conducting a
    pre-employment assessment for his then employer (in connection with a major construction project on Curtis Island).  In the course of her statement she reported:
  • Mr Harvey denied any current or past symptoms of a specific neck or shoulder condition;
  • part of her examination involved inspection of Mr Harvey's neck for posture, fluidity of and range of movement of the neck and back, which were noted to be normal.  Limb functioning, including the range motion and function of the right shoulder, was also noted to be normal;
  • the recorded findings were: normal neck posture, normal range and rhythm of neck movement, normal right upper limb movements and normal (superior) grip strength.  There was absence of muscle wasting. 
  1. [17]
    Dr Katie Haydock said she first saw Mr Harvey on 31 July 2012, had been his treating practitioner since that time, and that prior to December 2013 there was nothing to indicate the existence of a disc bulge in Mr Harvey's neck.  When asked about her notes of
    21 February 2013 which recorded pins and needles after activity, mostly C5/7, over the past three weeks, pruning yesterday, unable to close shears, Dr Haydock said that was a medical note to herself to indicate the fingers he was telling her he had symptoms in.  It did not relate to disc pathology.  She said her suspicion at the time, which was confirmed by physiotherapy, was that he was getting an irritation of the nerve from the bones in the neck and that was what was causing the symptoms.  Some gentle physiotherapy techniques and some anti-inflammatory medication (Lyrica) which she prescribed saw the symptoms resolve within three days "which is why I had no suspicion that there was a disc pathology at the time".  Had she had any such concerns "I would have referred him for an MRI immediately.". 
  1. [18]
    Dr Haydock was also taken through various entries in Mr Harvey's medical records and questioned about particular entries, including one on 31 December 2013 where she reported:  Pain worsening, neuropathic in nature by report.  Both arms burning, neck and shoulder tension.  In response to a question about the first sentence, Dr Haydock said neuropathic pain suggests there is nerve compromise somewhere along the path of the nerve and Mr Harvey had given her enough descriptors of his pain to make her think there was definitely nerve involvement in his injury.  The confusion at that time was that although the impact (from the concrete hose incident) had been to his shoulder, the symptoms did not completely fit just a shoulder injury.  
  1. [19]
    Dr Haydock also said that in the period after December 2013 Mr Harvey's paraesthesia improved - which, she assumed, was a combination of Lyrica and physiotherapy - but he always presented with underlying symptoms, with the severity of those symptoms increasing and perhaps settling within several weeks.  Such waxing and waning was often the nature of neuropathic pain. 
  1. [20]
    On 2 September 2014 Dr Haydock recorded woke five days ago with worsening pain right side of neck into right shoulder - arm felt "numb" - unable to hold piece of cake - arm shaking - paraesthesia right arm on assessment - abnormal touch and pressure sensation right arm with poor localisation - reduced power 4/5 right arm - ROM reduced to shoulder height in abduction only - extension only about 20 deg.  Dr Haydock said she was so concerned about Mr Harvey that she referred him for an urgent MRI and spoke to a Registrar at the Royal Brisbane Hospital.  Two days later she referred him to
    Dr Campbell, Consultant Neurosurgeon at that hospital, for assessment.
  1. [21]
    In the course of her letter of referral to Dr Campbell she mentioned that Mr Harvey was not experiencing any neurological symptoms at the time.  When questioned about this comment, Dr Haydock said it was "not a truly correct sentence" because she had discussed the matter with Dr Campbell's Registrar who had then discussed the matter with him. 
    "… I probably wasn't as careful as I could have been in explaining it.  However I am quite confident that Dr Campbell would have understood what I meant.".
  1. [22]
    Dr Haydock also said that in her Workers' Compensation Medical Certificate dated
    4 March 2014 she recorded the comment ruptured cervical disc because she had made such diagnosis by then, assisted by the MRI of 20 February 2014 (which had been requested by Dr Nutting), and continued to include that comment in further Certificates issued by her.  However, it was not until 25 September 2014 that the WorkCover Case Officer informed her that the part of the Certificate she recorded that information in "was just an FYI notation that WorkCover did not consider in diagnosis".   
  1. [23]
    Following this conversation Dr Haydock penned a lengthy entry in Mr Harvey's medical notes, which I reproduce in full below:

"Phone call to Carl McCormack - new case manager

Says there is no record that the cervical disc bulge is WC claim part and that this has not been recorded on Med Cert however I drew Carl's attention to 'Further information' section Part C which clearly states 'ruptured cervical disc' - Carl says this is often ignored as it's just a section 'FYI' so no one really looks at it.

(I also pointed out that Andre had been verbally told by WC that his review by a neurologist WOULD be covered, therefore he felt this implied the disc bulge was under WC and that more clarification in writing and less verbal heresay would be of benefit)

Carl has requested C4/5/6 pathology be included in 'Diagnosis' on Med Cert

He also states that on 21/02/2013 I examined Andre and noted some right sided neck/shoulder pain 'at C5-7' and that this therefore contributes as a 'pre-existing diagnosis'

I did not bother to explain to Carl that

  1. This 'C5-7' note was in the history and merely my way of recording patient's reported symptoms FOR MY OWN BLOODY BENEFIT
  2. My examination showed pain over facet joints C4-7 with some hand symptoms repro but NO OTHER NEURO SYMPTOMS and that this (medically speaking) can simply be MSK pain with some impingement symptoms eg facet joint (BONY) pressure causing the symptoms NOT NECESSARILY A DISC BULGE AND AT THE TIME, IF I HAD THOUGHT THERE WAS A DISC PATHOLOGY I WOULD HAVE REFERRED FOR MRI IMMEDIATELY THEN."
  1. [24]
    Under cross-examination about Mr Harvey's consultation with her on 21 February 2013, Dr Haydock re-affirmed that while she thought Mr Harvey had some irritation of the cervical nerves she was not concerned about his disc pathology.  In response to a question about how such nerves could be irritated for reasons other than disc pathology she mentioned that the closing of the facet joint space - through age, previous sport, looking at a computer and posture - can all give some nerve irritation.  She said it had nothing to do with the integrity of the cervical spine itself.  It was merely a bony pressure that is often coupled with surrounding muscle tension.  Symptoms are usually quite easily reproduced on palpitation - which is how she confirmed the C5-7 distribution with Mr Harvey - and often resolve quickly with physiotherapy and/or anti-inflammatories.  The witness also agreed that Mr Harvey did not come back to her complaining of persisting symptoms after 21 February 2013. 
  1. [25]
    When asked about her consultation with Mr Harvey on 31 December 2013, Dr Haydock agreed that Mr Harvey reported a burning type of pain in both arms and said that that burning sensation tended to point to a neuropathic presentation.  Dr Haydock also agreed that while her notes recorded neuropathic symptoms throughout neck and brachial plexus distribution, she had not recorded any report of pins and needles into his arms or hands.  She also agreed that her notes did not record any concern at that point about disc pathology and re-affirmed that if she had any such concern she would have referred
    Mr Harvey for an MRI. 
  1. [26]
    After being taken to a number of other entries in Mr Harvey's medical records,
    Dr Haydock agreed with the proposition put to her that none of her notes mentioned the existence of pins and needles or numbness in the arm, or pins and needles or numbness in the hand, and that when he presented with such symptoms on 2 September 2014 she referred him for an urgent MRI.  However, when it was put to her that this was the first time she was suspicious of nerve root compression in Mr Harvey's cervical spine she responded by saying that was the first time she was concerned that the nerve itself was being severely compromised. 
  1. [27]
    Nonetheless, Dr Haydock agreed that these new symptoms were the reason she included the comment "prior to his recent presentation, he was not experiencing any neurological symptoms…" in her letter of referral to Dr Campbell, saying "the notation I made to
    Dr Campbell was referring to the fact that the issue that I was contacting him about on that date was a new onset problem". 
  1. [28]
    Dr Paul Frank said he had assessed Mr Harvey on 19 March 2014, reviewed him on
    5 May 2014, performed an epidural steroid injection on 9 May 2014 and conducted further reviews on 7 July and 8 August 2014.  Dr Frank said Mr Harvey had an incredible amount of hyperalgesia (a form of hypersensitivity) and neuroplastic "wind-up" of the nerves all around his neck and head, with intermittent symptoms of radicular arm pain.  He also said the epidural steroids he administered by injection are a well recognised treatment for radicular arm or leg pain when there is evidence of nerve irritation in the epidural space, but the steroids could also be helpful in reducing extreme hypersensitivity so as to aid further examination. 
  1. [29]
    Dr Frank said that while his initial examination of Mr Harvey was difficult - due to extreme allodynia over his whole right upper quadrant - he had some radicular signs, describing hyperpathy in his C7 distribution.  Although Mr Harvey did not have any numbness in the distribution of his C5-7 nerve roots, Dr Frank was unsurprised about this saying that quite often there was a slight overlap between the different nerve root distributions in the arms and Mr Harvey had symptoms, signs, and the MRI findings, all consistent with the diagnosis. 
  1. [30]
    Elsewhere, in the course of a report he prepared on 14 July 2014, Dr Frank saw fit to comment on a report of Dr Reid (see below) saying:

"There are a number of reasons why symptoms may be disproportionate to observed pathology.  Dr Reid has made a judgement that the reason for this discrepancy is malingering.  I believe that it is due to neuroplastic central sensitisation with resultant allodynia and hyperalgesia following a significant physical (and emotional) trauma.  This is supported by response to treatment to date."

  1. [31]
    When asked to clarify his comments, Dr Frank said that "allodynia" is a term that is used to describe pain due to a non-noxious stimulus.  "Hyperalgesia" is a term used to describe an increased pain response due to a normally painful stimulant.  Each of these can be seen in both neuropathic pain and some forms of central sensitisation, both of which he believed Mr Harvey exhibited.  Allodynia involved a non-noxious stimuli, such as light touch, pressure and so on, being interpreted as painful. 
  1. [32]
    Under cross-examination Dr Frank said that the neuronal sensitisation exhibited by the altered sensation over the posterior of Mr Harvey's neck could be related to a soft tissue injury within the neck, but any neuronal sensitisation that was further down the arm and anterior to that level would not be consistent with facet joint strain.  Dr Frank also said that while people who suffered soft tissue injuries, musculoligamentous injuries, hyperextension injuries and so on, to the neck can occasionally suffer pins and needles and numbness in their upper limbs, he would not agree that you would also get an examination finding of hyperpathia.
  1. [33]
    When pressed further about this issue and the comment in his report of 14 July 2014 to the effect that when he saw Mr Harvey on 19 March and again on 5 May 2014 Mr Harvey's numbness and paraesthesia had resolved, Dr Frank indicated that what he had written was probably a poor choice of words and that, while the numbness and pins and needles weren't present at the time, Mr Harvey still had pain with neuropathic descriptors in the same distribution.  When further pressed about the fact that the radicular pain and paraesthesia he observed was in a C7 distribution as opposed to a C5/6 distribution, Dr Frank indicated while the C7 nerve root will exit at the C7 facet joint it goes past the C5/6 nerve root, which is why it would have been his "working diagnosis" a C7 radicular pain could actually be arising from a C5/6 disc issue. 
  1. [34]
    In re-examination Dr Frank said that even though Mr Harvey's initial numbness and paraesthesia had resolved in March 2014, other descriptors of neuropathic pain - such as allodynia, hyperalgesia, some burning and shooting type pain - continued.  He also said the most likely reason for neuropathic pain of the type described by Mr Harvey would be a disc prolapse.  "If you've got a neuropathic descriptor in a certain distribution, you would then investigate to see where the likely injury of that nerve is.  And in this case, nerve conduction studies were unable to be done, but an MRI was able to be done, and these symptoms were consistent with the MRI findings of a disc prolapse.". 
  1. [35]
    In addition to the contents of a one page note to Dr Haydock after he saw Mr Harvey on
    18 September 2014 and a more detailed report to Mr Harvey's solicitors on 15 April 2015, Dr Campbell also endorsed the accuracy of the contents of a file note prepared by
    Mr Sapsford, Counsel for the Appellant, following a conference with that doctor on
    12 May 2015.  Relevantly, this file note contained the following points:
  • He (Dr Campbell) agreed with the findings as contained in the radiological investigations of 20 February 2014 and 2 September 2014;
  • Upon perusal of the actual "films" from which those conclusions were drawn he did not consider that they showed an appreciably different radiological picture including at the C5/6 level;
  • It was not possible to say that the two investigations were of exactly the same "slice" of the spine and they were of a different quality such that it was to a certain extent not a matter of comparing "apples and apples";
  • On a consideration of the films, the reports and recent review of the films, there was no appreciable difference in the cervical spine between its condition in February 2014 and September 2014.
  • The reference from the General Practitioner Dr Haydock in relation to a sudden onset of neurological symptoms with presentation with recent onset paraesthesia and loss of power in the right arm on 2 September 2014 was a further manifestation of neurological symptoms which had occurred in the past and had partially resolved at the time of examination by the Medical Assessment Tribunal.
  • The nature of the injury being a disc bulge or protrusion was productive of neurological symptoms which waxed and waned over a period of time.
  • As noted by Dr Campbell in his report at page 4 Mr Harvey developed right shoulder pain and right upper limb sensation soon after the event of
    5 December 2013.
  • The existence of a right sided broad based disc bulge at C5/6 as revealed in the radiological investigation of February 2014 soon after the event of
    5 December 2013 meant that it was unlikely that this discal derangement was present prior to the event of December 2013. 
  • The presence of a right sided disc bulge accorded with the nature of injury involving a concrete pumping hose jarring violently to Mr Harvey's right shoulder causing injury to the spinal axis.
  • It is likely the event of 5 December 2013 was the cause of the disc bulge at C5/6 as seen in the MRI of 20 February 2014 and the same disc bulge (referred to as a disc protrusion) in the MRI of 2 September 2014.
  1. [36]
    In his examination-in-chief Dr Campbell said there was no consistent form of presentation of symptoms which were radicular in nature.  While some patients had consistent and unremitting pain, it could wax and wane in others depending on their level of activity.  In other patients it could go away for some time and come back at a later date just as severe.  It was a spectrum, with no type of presentation more common than any other.  He also said that broad-based disc bulges were quite common in society and were usually found as an incidental finding.  However, for a broad-based disc bulge to cause radicular symptoms it would have to be associated with nerve root compression.  A protrusion, especially to the left or right of the midline, would usually pick up a nerve root and cause compression, which was usually detectable on a CT scan or an MRI scan.
  1. [37]
    Under cross-examination Dr Campbell accepted that a musculoligamentous soft tissue injury to the neck could cause pins and needles and/or numbness in an upper limb notwithstanding it would be unusual to get any neurological symptoms on the limbs if there was no nerve compression.  He said he regularly saw patients with soft tissue, or whiplash type, injuries who described numbness and pins and needles on their arms and legs in circumstances where, theoretically, it should not be happening. 
  1. [38]
    Dr Campbell also agreed that approximately 30% of the general population would have a disc bulge of some sort and that such bulges were not necessarily associated with symptoms of pain or radicular symptoms.  He also agreed that he might assess a patient in connection with a musculoligamentous injury and find that they have disc bulges as an incidental finding.  However, he did not accept that the right side C5/6 disc bulge/protrusion he saw on the MRI scans of February and September 2014, respectively, were incidental findings.  If they were he would have described them as a musculoskeletal injury rather than a disc protrusion.
  1. [39]
    When further questioned as to the contents of his first note to Dr Haydock, after his examination of Mr Harvey on 18 September 2014, and why he had not specifically spelt out his diagnosis, Dr Campbell said that he was simply trying to convey a message to the effect that Mr Harvey had a disc protrusion but it would be his preference not to operate.  He also said that while he had not said particular things he also had not not said them.  Whether he had written "radicular pain" as opposed to "right upper limb pain" he was technically saying the same thing.  They were just the words he had used and were not to be over-analysed.  He also said it was not necessarily the case that if he had formed the opinion there was nerve root compression he would have said that in his letter to Dr Haydock when he was describing what was showing in the MRI.  He also said if he used the term "disc bulge" he was expressing the view that he did not believe the patient required surgery.  If he thought they might be a surgical candidate he would use the term "disc protrusion".  That was his own code.  However, "disc bulge" and "disc protrusion" were one and the same thing. 
  1. [40]
    In response to a series of questions about Mr Harvey's history of altered sensation in his right upper limb, and elsewhere, being of a non-dermatomal distribution, Dr Campbell was somewhat dismissive of any suggestion that symptoms could only be experienced in a classical distribution.  Indeed, he said it would be very rare for someone to present with classical radicular symptoms and that a patient who presented with a disc protrusion, which can be compressing a nerve, could have a wide variety of symptoms which had no anatomical explanations.  He did not get too caught up with whether their symptoms matched the classical position or not.  He was looking for a reasonable match of symptoms, not a perfect match. 
  1. [41]
    He also rejected a proposition put to him to the effect that because Mr Harvey's pins and needles and numbness in his upper limb and hand presented in different areas of his arm and hand on different days, it was more likely that his symptoms were a consequence of a soft tissue injury rather than a disc protrusion.  In doing so, he said that while it would be unusual for a symptom to jump from a shoulder down to an index finger from one day to the next, it would not be unusual if someone had pins and needles in one finger on one day and on the following day it was the whole of their hand.  Dermatomes can vary from 1 to 2 dermatomes as part of normal anatomical variation and varied widely from one person to the next.  In most people, the C6 dermatome will be the index finger and thumb but, in another person, it could extend across to the middle finger and ring finger.  There was also a difference in the way individuals interpreted where the dermatome is and for that reason he relied upon radiological examinations. 
  1. [42]
    Dr Campbell was also asked a number of questions about Mr Harvey's consultation with Dr Haydock on 21 February 2013 - about losing strength in his right arm with pins and needles in mostly a C5-7 distribution after activity - and whether such symptoms, over a three week period, might indicate that Mr Harvey had a disc bulge or protrusion at that time.  He agreed that they might.  He also said that symptoms after a disc bulge can wax and wane and reappear and that that might have happened in Mr Harvey's case. 
  1. [43]
    At the end of his cross-examination, Dr Campbell was asked the following question and provided the answer shown:

"With the nature of a disc bulge being frequently incidental and degenerative in nature, with this man's past history of three weeks of symptoms that are potentially relevant in February 2013, with a report of symptoms that do not match a dermatomal distribution, and with radiology that is borderline between being a bulge or a protrusion, it is simply impossible to say that it is probable that he has a traumatic bulge suffered in the incident of December 2013.  That's so, isn't it, Doctor? --- Yes."

  1. [44]
    In re-examination, after being taken to one aspect of Dr Haydock's notes of
    21 February 2013 where she indicated neuro otherwise grossly intact as well as the further comment included in her medical notes on 25 September 2014 about why she decided not to send Mr Harvey for MRI at the time, Dr Campbell noted that the additional information provided gave "a broader view of things" and expressed the view that if the general practitioner thought there was anything significant in February 2013 they would have pushed for an MRI scan at the time.  Given that the doctor had not, then one could probably come to the conclusion that there was not enough in it to undertake that investigation.
  1. [45]
    Finally, in response to a question about whether the additional information made known to him about the events of February 2013 impacted his view about the contribution the incident of 5 December 2013 had on Mr Harvey's disc bulge/protrusion, Dr Campbell responded by saying: 

"… Well, I think it's very difficult.  Having taken all that information into consideration, I think there's something in that February 2013 (event) which should've sort of indicated there was a problem at the time, but I'd say, having a look at all the information, that the most significant contributing fact to the disc protrusion was the December 2013 injury.  It may be it's possible that the disc bulge – there was a small disc bulge in February which was subclinical or just borderline clinical and then the injury in December 2013 [indistinct] turns into a major problem.  So I think I'd probably apportion those two injuries based on what I referred today to, I'd say, probably 80 per cent of that protrusion is due to December and 20 per cent due to February 2013.".

Evidence called on behalf of the Regulator

  1. [46]
    In his report of 5 February 2014 Dr Gregory Nutting recorded that Mr Harvey was inordinately sensitive in the region of the right shoulder girdle and right clavicle extending out to the deltoid and that a number of manoeuvres resulted in his reporting inordinate discomfort, and the production of numbness and pins and needles in the right upper limb, even such disparate circumstances as moving the left upper limb.  In relation to neck movement, he reported that Mr Harvey's right trapezius and deltoid region is associated with dyaesthesia, which results in a withdrawal response even when attempting to assess with light touch. 
  1. [47]
    Dr Nutting also opined (in his report) that Mr Harvey was a gentleman who presented with "a rather unusual distribution of symptoms", none of which "suggests a particular nerve root is involved nor a particular muscle and the 'cross-sensitivity' tends to bespeak a problem more of neuritis rather than a musculoliganentous injury".  On the basis some aspects of Mr Harvey's presentation resembled Parsonage-Turner Syndrome he recommended the earliest possible assessment by a neurologist.  However, he also recorded that he anticipated that neither the shoulder nor the neck MRI he recommended would be suggestive of any significant pathology. 
  1. [48]
    Later, on 24 February 2014, Dr Nutting reported the results of the MRI investigation of 20 February 2014 to WorkCover.  In doing so, he suggested that the MRI of the cervical spine revealed what he considered to be "minor pathology in the overall scheme of things". 
  1. [49]
    In the course of his examination-in-chief Dr Nutting said that his comment to the effect that none of Mr Harvey's symptoms suggested a particular nerve root was involved had been arrived at because the typical presentation of a disc protrusion would be reflected in the particular dermatome, myotome or sclerotome that that particular segment is supplied by.  For example, if one considered that the C5/6 disc pathology was significant then one would be looking for either the C5 or C6 nerve root territories to be involved.  In the case of the C5 nerve root, one would be looking for pins and needles radiating down the arm to the elbow past the thumb side of the forearm.  If one was looking for something at the C8 - T1 level, it would be in a distribution on the little finger side and on the medial side of the elbow. 
  1. [50]
    Dr Nutting disagreed with Dr Campbell's opinion to the effect that the work event of
    5 December 2013 resulted in Mr Harvey suffering a right C5/6 disc protrusion which caused symptoms that persisted and became chronic.  In explaining why he disagreed with Dr Campbell, Dr Nutting said "if it was going to be a C5/6 disc protrusion that was of acute onset related to that date, then you'd expect that there would be - a distribution on the radial side of the forearm, perhaps some weakness in the biceps and the brachialis and pain in the same distribution.  It wouldn't be in all of the other areas that were demonstrated".
  1. [51]
    Under initial cross-examination, Dr Nutting expressed some surprise that Mr Harvey had been referred to him by WorkCover for examination given that his interest is in shoulders, which was where he thought the major force of the event of 5 December 2013 would have been dissipated.  Nonetheless, Dr Nutting indicated it was "fair to say" that it was entirely possible that the force of the concrete discharge could have occasioned a discal type injury. 
  1. [52]
    Dr Nutting disagreed with the evidence of Dr Campbell in relation to the predictability and consistency of dermatomal distribution.  The only concession he was prepared to make was to say that one would frequently find that an issue identified in a radiological finding did not involve the whole of a dermatome. 
  1. [53]
    Although he accepted that Dr Campbell was in a much better position to comment on the MRI results of February and September 2014, respectively - in that Dr Campbell had seen both the scans whereas he had not seen any - Dr Nutting was not prepared to accept Dr Campbell's view that the right paracentral disc protrusion with compression of the C5/6 nerve root, which was revealed in the second report, was occasioned by the event of December 2013.  In expressing that view, Dr Nutting said that he would not accept that conclusion unless there was corroborative evidence, such as depression of the biceps jerk or wasting of the brachialis or the biceps or the brachioradialias. 
  1. [54]
    Somewhat reluctantly, I thought, Dr Nutting was prepared to accept it was more likely than not that if there were no clinical symptoms of a neurological nature prior to a certain event and there were clinical symptoms after that event in the presence of an MRI investigation that revealed a bulge or a protrusion, then the two could reasonably be related (see transcript T2-30 at 28-37). 
  1. [55]
    In re-examination, Dr Nutting was apprised of Dr Haydock's notes in respect of
    Mr Harvey's consultation with her on 21 February 2013 and immediately commented that the symptoms she recorded at that time were in the correct distribution for a C5 or C6 radiculopathy.  He also said there was nothing to suggest that the disc bulge, identified in February 2014, would not have been present if an MRI had been conducted a year earlier.  Finally, Dr Nutting said that Mr Harvey's presentation in February 2013, which was unknown to him previously, certainly seemed to be of more significance now.
  1. [56]
    Dr Alison Reid saw Mr Harvey on 11 March 2014 for the purpose of assessing right shoulder injuries and Parsonage-Turner Syndrome and to respond to a series of questions posed to her by WorkCover.  In a report to WorkCover prepared the same day she stated, inter alia (some set out altered to reduce length, but content is unchanged):

"Current situation (11 March 2014) Mr Harvey told me there has been no improvement at all, and he has been steadily going downhill since the workplace incident.  He current (sic) reports:

  • pain in his neck and right shoulder;
  • muscle spasms affecting the neck, both shoulders, and both upper limbs;
  • pins and needles which radiate down the medial right forearm and into the little finger;
  • constant dizziness; and
  • pressure headaches.

 …

Examination: Mr Harvey was a large tall man (height 6'3", weight 125 kilograms).  He was flabby with excessive rolls of adipose tissue around his waist.  He presented with his right upper limb in a sling.  When the sling was removed he kept his right upper limb immobile by his side with the elbow flexed.

On inspection of the shoulder girdles, they were flabby.  He had poor posture.  There was no winging of either scapula and no muscle wasting, in particular the right deltoid was not thinned.  Range of neck movement was severely limited in all directions with complaints of pain.  Range of the left shoulder joint movement was relatively normal.

He had grossly restricted range of right shoulder abduction, flexion, extension, and rotation indicating that he was in dire agony.  He reported altered appreciation to light touch affecting the whole of the right upper limb, the right side of neck, the right side of chest to approximately a T8 level, and the right posterior region over the scapula.

Power in the right upper limb could not be tested as he exhibited global weakness with complaints of pain.  Even the reflexes, which appeared to be symmetrical and normal, were elicited with difficulty on account of the slightest touch of both upper limbs resulting in complaints of pain.  The lower limb examination was normal. 

Investigations:  An MRI scan of cervical spine (20 February 2014) showed mild degenerative changes with a right broad based disc bulge at C5/6 causing some degree of foraminal stenosis.  However, there was no neurological compromise. 

An MRI scan of right shoulder (20 February 2014) showed oedematous osteoarthritic change in the AC joint with mild impingement upon supraspinatus.  Mild bursitis was noted but no other significant pathology and no signs of acute trauma.  Mr Harvey volunteered that he had passed out in the MRI scanner when having his investigations because the radiographer had attempted to manoeuvre his right shoulder. 

My aim was to investigate his brachial plexus with peripheral nerve conduction studies with minimal proximal F wave latencies. 

Nerve conduction studies are an entirely safe investigation.  However, they are associated with minor discomfort.  I commenced by testing the palmar sensory latencies of the right median and ulnar nerve, which is the part of the test that the vast majority of patients tolerate extremely well.  Mr Harvey however responded by screaming, crying, and innuendos of torture and potential re-injury. 

I asked whether he would consider an MRI scan focused on his brachial plexus with gadolinium enhancement, but he declined.

…

Diagnosis of all work related conditions:  There is no neurological work related condition.

Relationship of the current work related diagnosis to the stated mechanism of injury:  Mr Harvey describes a most unusual incident in which he was operating a high pressure hose which allegedly caused him to be lifted off his feet by two inches, with sudden elevation and jerking of the right shoulder region.  It is conceivable that the right brachial plexus may have been subjected to traction.

Are the ongoing symptoms attributable to the work related injury or to an underlying pre-existing condition?  Neither.  There is no identifiable neurological work related condition, nor is there any relevant neurological pre-existing condition. 

Mr Harvey is elaborating his complaints with clearly functional non-organic findings on clinical examination.  He is exhibiting excessive pain behaviours. 

He is also deliberately exhibiting behaviours which are impeding appropriate investigations of his condition.  The MRI scans of his right shoulder were degraded by significant movement artefact and his behaviour made it impossible for me to complete the right upper limb neurophysiological testing. 

Mr Harvey is deliberately playing a sick role in order to obtain the benefits of a sick person and is obstructing investigations which are unlikely to confirm any significant pathology.

Treatment, rehabilitation and return to work recommendations for the work related injury:  There is no neurological work related injury.  Mr Harvey has no organic condition for which he can be offered any specific treatments or modalities of rehabilitation.

Capacity for work:  From the organic neurological perspective, there is no reason why Mr Harvey should not be at work.  He has full capacity for normal hours and duties. 

…

Will the work related injury improve with further medical or surgical treatment? No. This would be counter-productive.  Further resources spent on this man will only serve to entrench and legitimise his presentation.".    

  1. [57]
    In her examination-in-chief Dr Reid confirmed it was her view that the MRI of
    20 February 2014 simply reported a mild, age-related, degenerative finding.  "A bulge of that nature is not a traumatic lesion.  It is due to aging and desiccation.  That means dehydration in the disc".
  1. [58]
    When taken to Dr Haydock's notes of 21 February 2013, Dr Reid expressed the view that the description of having pain and paraesthesia in his arm indicated that something was likely to be happening to Mr Harvey's C6 nerve root.  She said the symptoms described sounded like a radiculopathy.  Whether it was called "compression" or "irritability of the nerve root" was semantics.  "But he did have a radiculopathy, pain radiating to the arm, and that suggests that there was some early degenerative disease in the neck."  In her view, it was also reasonable that Dr Haydock did not order scans at that time because early cervical degenerative disease does present with symptoms which settle, which might reappear and then settle again.  
  1. [59]
    Dr Reid strongly disagreed with the opinion of Dr Campbell that Mr Harvey suffered a right-sided C5/6 disc protrusion as a result of the concrete hose incident.  In doing so she said:

"Well, I don't believe he had the type of injury that would cause an acute disc protrusion.  He already had evidence of cervical degenerative disease, which is far more likely to be the pathology than an acute traumatic disc protrusion.  Cervical degenerative disease occurs gradually over a long period of time, and his clinical presentation to me - I saw him relatively soon after the workplace incident, four months later in March or - and it didn't sound like that he initially had a radiculopathy.  To me, his initial symptoms, I've got here 'pain in the neck and right shoulder, muscle spasms, pins and needles down the forearm, dizziness and headaches'.  A lot of his symptoms sounded as if they - and signs sounded as if there was shoulder pathology.  There may have been some neck pathology too.  There may have been an aggravation of pre-existing cervical degenerative disease, but his presentation suggested that a lot of the symptoms were coming from the shoulder as well.".

  1. [60]
    Under cross-examination Dr Reid acknowledged that her report was prepared for the specific purpose to assess right shoulder injuries and whether Mr Harvey suffered from Parsonage-Turner Syndrome.  However, she also said that if she thought he had any discal damage she would have certainly said so, saying "I wouldn't do half a report, I wouldn't give half an opinion".
  1. [61]
    Dr Reid also said that due to the nature of Mr Harvey's reaction during her examination she was unable to complete the electrical examination, the neurophysiology, "as well and as thoroughly as I would have liked".  She said her aim was to investigate the brachial plexus with peripheral nerve conduction studies and minimal proximal F wave latencies, but was unable to do them.  When asked to agree that her diagnosis of all work-related conditions was on the basis of her physical examination, she responded by saying "the history, the physical examination and the little I could do of the nerve conduction studies". 
  1. [62]
    Questioned about the opinions she expressed in relation to the results of the MRI undertaken on 20 February 2014, Dr Reid said she had not only read the report of the radiographer but had also reviewed the scans.  When asked whether there was anything remarkable about the scans, she volunteered the response "just a change in the density of the scan suggesting some dehydration and thus the bulging".  This was despite her acknowledgement that the scans were degraded and difficult to interpret because of the significant motion artefact.
  1. [63]
    When asked if she had read the MRI report of 2 September 2014 Dr Reid indicated that she had not seen it until 5 minutes before giving her evidence but "… I was very, very, may I say, excited to see this MRI scan and to read the report, because it totally validates and completely confirms everything I have been saying; that this is a picture of progressive - the naturally progressive degenerative cervical disc disease, because you now have multi-level involvement at 4/5, 5/6 and 6/7.  This isn't a traumatic picture.  This is the classic position that we see day in day out of the natural progression of degenerative cervical disc disease.".  
  1. [64]
    Asked additional questions about the MRI investigations Dr Reid, somewhat reluctantly, said that she "would expect" Dr Campbell would be in a better position to assess the import of both sets of scans and both reports given that he had actually seen the scans.
  1. [65]
    Finally, when made aware of Dr Campbell's evidence to the effect that he was of the view that the contribution to the pathology exhibited in the scans was 20% attributable to the event of February 2013 and 80% attributable to the event of December 2013, Dr Reid became quite vocal saying they were "just empirical figures plucked out of the blue" and his evidence was "nonsense".  She said that Dr Campbell was focusing on C5/6 and appeared to be discarding the other levels above and below C5/6 which showed the natural progression of cervical degenerative disc disease.  "And when you say Dr Campbell thought there was not much difference between the two scans, was he saying that all those degenerative changes were present in the first scan? Or was he saying he failed to mention them?  What - how does one explain that in the second scan the radiologist describes 4-level degenerative changes?". 
  1. [66]
    Dr Bill Donnelly, an Orthopaedic Surgeon (but who specialised in surgery of the hip and knee), examined Mr Harvey on 9 September 2014 at the request of WorkCover for the purpose of undertaking an independent medical examination and providing a report.  In the course of his written report, Dr Donnelly noted that an MRI of the cervical spine was performed on 20 February 2014 and that this showed mild degenerative changes with a right sided broad based disc bulge at the C5/6 level that was reported as causing some degree of foraminal stenosis.  He also noted that Mr Harvey was reviewed by Dr Reid, Neurologist, on 11 March 2014 and that she was unable to perform nerve conduction studies on Mr Harvey because of severity of pain. 
  1. [67]
    In terms of his findings on examination, and response to particular questions posed to him by WorkCover, Dr Donnelly wrote:
  • "there was extreme pain sensation and discomfort to light touch over the full length of the clavicle to the acromioclavicular joints and proximal deltoid, also radiating around to the scapula and to the midline of the cervical spine from approximately the C4 down to T8 level.  There was glove and stocking subjective sensory changes in the entire right upper limb with a feeling of sensory dyaesthesia and partial numbness… examination of the cervical spine was unable to be performed due to the severe amount of pain that Mr Harvey was in following examination of the right shoulder";
  • "I was unable to associate Mr Harvey's ongoing severe pain with any specific pathology related to the musculoskeletal system in either the shoulder or the cervical spine";
  • "I do not think that Mr Harvey's ongoing pain is of musculoligamentous origin and as such it is outside my speciality area and I would suggest that opinions from pain management specialists and psychiatrists would be more appropriate in this situation."
  1. [68]
    In his examination-in-chief Dr Donnelly said the symptoms Mr Harvey was presenting to him did not fit in with the MRI scan findings and nor did his ongoing pain and disability.  He also said that disc bulges are quite commonly non-traumatic and a sign of aging and wear and tear of the disc.  "… as we get older the disc loses hydration and becomes more like a flattening balloon rather than a taught balloon, and as that balloon flattens the discs tend to bulge out the back.  There can be a fine line between what's a bulge, which is where the annulus or outside coating of the disc is contained, and what's a protrusion or sequestration where disc material, the jelly from the inside, squirts out the back".  It was his opinion that is was likely that the disc bulge shown in the MRI of 20 February 2014 was a degenerative change in "a 30-something year old gentleman". 
  1. [69]
    Dr Donnelly was also asked to provide comment in relation to Dr Campbell's report of
    15 April 2015 and indicated that he believed it unlikely that the events involving the concrete hose caused Mr Harvey to sustain a right C5/6 disc protrusion.  In doing so, he said his feeling was that the disc bulge was likely pre-existing.  From what he now understood Mr Harvey's symptoms preceeded the December 2013 event.  Nerve roots which came out of one's neck were like power cords which each went to an isolated area.  The area which could have been affected by the C5/6 disc bulge is a very isolated area on the thumb side of the forearm, the thumb and the index finger.  The C5 power cord nerve root goes up to the shoulder and the C7 power cord goes to the middle finger.  Further, those nerve roots give rise to motor power so if they are compressed there would be weakness and loss of reflexes and loss of muscle bulk.  At the time of his examination Mr Harvey did not have any of those signs and his sensory changes - the feeling and numbness - went from his neck down to below the level of his nipple, which was called a glove and stocking distribution.  "So compressing one nerve root cannot give rise to complete loss of sensation or numbness from your neck to half-way down your chest".
  1. [70]
    Under cross-examination, Dr Donnelly said that while he had no recollection that he had seen the actual scans of 20 February 2014, and no note to the effect, he would usually say "this showed", if he had reviewed a scan as well as looked at the report.  This is what he had written.  He also indicated that his notes did not record the fact there was significant motion artefact partly degrading the images but agreed that such circumstances make scans harder to interpret in that it was "like making a picture more fuzzy".
  1. [71]
    When asked about the results of the MRI scan of 2 September 2014 and Dr Campbell's view that the films of February and September 2014 revealed a bulge or protrusion at C5/6, Dr Donnelly said it can be hard to discern between a bulge and a protrusion.  They will usually have a different look in that a bulge looks like a gentle arc while a protrusion can have a sequestration, like jelly, being forced out.  The witness also said his examination of Mr Harvey showed that there was not a dermatomal distribution of his pain and if there was isolated nerve root damage one would have expected a dermatomal distribution. 
  1. [72]
    Under further cross-examination Dr Donnelly said that while the results of the scan of
    February 2014 showed some foraminal stenosis, which meant that the nerve root could be being partially squashed, there were no symptoms to suggest that was the case.  For example:  there was no loss of sensation in that specific area; there was no loss of muscle bulk in the muscles the right C6 nerve root supplied; and, there was no loss of the reflexes that you can test clinically for the right C6 nerve root. 
  1. [73]
    Dr Donnelly also commented that the neurological symptoms exhibited were not isolated to an area that the C5/6 disc can affect.  The neurological symptoms were associated with all the nerve roots right up and down the neck and into the upper thoracic area.  Further, while he was able to examine sensation, as in Mr Harvey's hypaesthesia, he was unable to move his neck because he was in too much pain.  As such, he was only able to perform a physical examination of Mr Harvey's right shoulder. 
  1. [74]
    Dr Donnelly also said the conclusions he expressed in his report were garnered by his physical examination of Mr Harvey's shoulder, the sensation, motor power and reflexes of the right arm, and his inability to move his neck at the time.  In that respect, he said he did not think Mr Harvey was being uncooperative during his examination of him, otherwise he would have expressed that opinion in his report. 
  1. [75]
    Dr Gavin Ballenden also gave evidence about the contents of a Permanent Impairment Assessment Report he provided to WorkCover on 28 October 2014 after examining and assessing Mr Harvey on 22 October 2014. 
  1. [76]
    However, while this report was tendered, and Dr Ballenden asked questions in both examination-in-chief and cross-examination, the Regulator ultimately submitted that the issue for resolution in the present proceedings was substantially within the speciality of the orthopaedic and neurology specialists and that neither Dr Ballenden nor Dr Frank had directly relevant specialities.  Further, the Regulator submitted that neither of those practitioners was focused upon the issues relevant to the current proceedings at the time of providing their reports.  In addition, it was conceded that there was a limitation to
    Dr Ballenden's evidence because of the focus of his consultation. 
  1. [77]
    Given this submission, I have disregarded Dr Ballenden's evidence in reaching my decision in this Appeal. 

Findings and conclusion

 

  1. [78]
    As noted in paragraph [6] above, the issue for determination in this Appeal is whether the Appellant, Mr Harvey, has established on the balance of probabilities that the discal pathology at C4/5 and/or C5/6 is an injury arising out of, or in the course of, employment to which employment was a significant contributing factor. 
  1. [79]
    Although not grouped together in the manner set out below, Mr Sapsford's submissions on behalf of Mr Harvey urge me to accept that, on the whole of the evidence, the following relevant facts are established:
  • prior to 5 December 2013 Mr Harvey was asymptomatic.  While the Regulator sought to attach significance to Mr Harvey's symptoms as disclosed in Dr Haydock's notes of 21 February 2013, in advancing the argument (as if it were fact) that he must have had a disc bulge or discal injury at that time such that it preceded the event of 5 December 2013, those symptoms were entirely different in that they:
    • were transitory and easily resolved;
    • were not productive of concern on the part of Dr Haydock such as to occasion further investigation, for instance, by way of MRI scan; and
    • were not the subject of any examination or consideration by a specialist practitioner with a view to establishing their significance;
  • Mr Harvey suffered a significant impact to his right shoulder and cervical spine from a concrete pumping hose when the machine pumping concrete malfunctioned and produced an air lock;
  • the nature of the impact gives rise to a mechanism of injury consistent with an injury in the nature of C4/5 and C5/6 discal derangement;
  • from the date of the injury and consistently thereafter, to a greater or lesser extent, Mr Harvey exhibited neurological signs and symptoms consistent with a possible discal injury;
  • WorkCover referred Mr Harvey to Dr Nutting for examination and report and he, in turn, referred Mr Harvey for an MRI, which was undertaken on
    20 February 2014.  Although Dr Nutting regarded the written report of the results of the scan as "minor pathology" (he did not see the scans) they, nonetheless, revealed the existence of a disc bulge at C5/6;
  • the existence of neuropathic pain symptoms is observed and reported on by Dr Reid and Dr Frank; 
  • the evidence of Mr and Mrs Harvey and Dr Haydock was that Mr Harvey experienced radiculopathy following the event of 5 December 2013 and up to a time prior to the more acute onset of neuropathic pain immediately preceding the second MRI investigation of 2 September 2014;
  • by virtue of an increase in symptoms a further MRI investigation was conducted on 2 September 2014.  This revealed a disc protrusion at the C5/6 level (as described earlier in this decision); and
  • the only medical practitioner to examine both "films" of the MRI investigations undertaken on 20 February 2014 and 2 September 2014, respectively, was Dr Campbell.  He concluded that they revealed, on both occasions, a discal type injury to the cervical spine. 
  1. [80]
    Mr Sapsford also criticised the Regulator's attempt to draw a distinction between
    Mr Harvey's radiological and other symptoms and the text book dermatomal distribution of a C5/6 disc bulge mentioned by a number of its witnesses. 
  1. [81]
    In doing so, Mr Sapsford submitted that the argument advanced by the Regulator was inconclusive and did not serve to detract from the basic premise that neurological type symptoms arose at the time of injury and continued thereafter throughout the course of two MRI investigations revealing discal damage.  He said it was not incumbent upon the Appellant to establish that the injury he sustained by way of a disc bulge at C4/5 and/or C5/6 was productive of an exact dermatomal distribution in accordance with the application of strict neurological interpretation.  What the Appellant was required to establish is "… it is more likely than not that the disc bulges at C4/5 and or C5/6 arose out of the event of 5 December 2013". 
  1. [82]
    In support of his argument on this point, Mr Sapsford referred me to the evidence of
    Dr Campbell during which he said:
  • the presence or absence of "classical radicular" description of pain is rare;
  • there is often a wide variety of symptoms with no anatomical explanation;
  • a distribution in the C6 to C8 dermatome was of no great significance in circumstances where it is quite common to find a non-dermatomal distribution which does not exactly match;
  • the altered symptoms expressed by Mr Harvey made it no more or less likely that they were attributable to a discal dearrangement or a soft tissue injury - both can have altered symptoms from day-to-day;
  • dermatomes were weak localising symptoms and "soft clinical findings";
  • the only reliable indicator of discogenic injury is myotome, or muscle group reference;
  • muscle weakness or reduced reflexes are also not definitive; and
  • dermatomal distribution:
    • will vary from one person to the next;
    • will involve a blurring of interpretation; and
    • is radicular and referred and often missed.  
  1. [83]
    Finally, in urging me to allow the Appeal and to award costs, Mr Sapsford highlighted the point that in the present case the disc bulge/protrusion detected in the MRI of
    20 February 2014 was coincident with two other factors which occurred at or around the same time, namely:
  • the event of 5 December 2013; and
  • the neurological symptoms indicative of discal derangement, which commenced shortly after the event and continued throughout 2014, albeit that they waxed and waned. 
  1. [84]
    Ms McClymont, of Counsel, who represented the Regulator argued very strongly that it was likely that the disc pathology at C5/6 pre-existed the event of
    5 December 2013 for three reasons:
  • disc bulges are common amongst the population as a result of
    age-related spinal degeneration;
  • in the opinion of the specialists who gave evidence, Mr Harvey's presentation on 21 February 2013, even though Dr Haydock did not recognise it at the time, was consistent with radicular pain related to a disc bulge; and
  • all the medical practitioners of the relevant speciality (including
    Dr Campbell) considered it was likely that "the" disc bulge was present prior to the subject event. 
  1. [85]
    Ms McClymont also argued it was likely that the disc pathology was not causing the symptoms about which Mr Harvey complains for the following reasons:
  • prior to September 2014 he did not consistently complain of arm pain or other symptoms that would be caused by neural compromise at the C5/6 level;
  • the evidence established that there was a sudden onset of new symptoms of pins and needles and numbness in the right arm in September 2014;
  • there is no specialist evidence to attribute the onset of those symptoms in September 2014 to the work accident in December 2013;
  • Dr Campbell did not see Mr Harvey until after the change in his symptoms in September 2014.  Although Mr Harvey informed Dr Campbell that the symptoms of pins/needles/numbness had been present since the work event in December 2014, the evidence and notes of Dr Haydock contradict that history; and
  • Dr Campbell accepted in his evidence that Mr Harvey's symptoms could well be caused by his soft tissue injury (of 5 December 2013). 
  1. [86]
    In addition to the above matters, Ms McClymont also argued that Mr Harvey's symptoms after the accident on 5 December 2014 were not consistent with a discal injury at C5/6, stating:
  • a discal injury causes symptoms when it compresses the existing cervical nerve root;
  • cervical nerve roots innervate certain anatomical areas;
  • neuropathic symptoms in that dermatomal distribution are termed "radicular" symptoms;
  • there is no evidence that Mr Harvey ever suffered radicular symptoms in a distribution consistent with nerve impingement from a C5/6 disc protrusion in that:
    • Mr and Mrs Harvey gave evidence that his symptoms varied from
      day-to-day, as did the distribution of those symptoms;
    • Dr Frank agreed that this variation in symptoms is inconsistent with radicular pain from nerve root compression;
    • Dr Haydock's evidence was to the effect that, before the change in symptoms in September 2014, Mr Harvey made no complaint to her of right arm symptoms after she first saw him on 31 December 2013;
    • after that date Mr Harvey had "burning" neuropathic pain in the brachial plexus distribution from his neck across his shoulders, but not in his arms or hands;
  • Dr Frank reported that Mr Harvey's pins/needles/numbness had resolved as at 19 March 2014 and he was not told of any reoccurrence of those symptoms during any of Mr Harvey's subsequent visits;
  • Dr Frank noted a history of pain in a C7 distribution on two occasions and hyperpathy in the C7 distribution.  This is not the nerve adjacent to the C5/6 vertebral disc;
  • none of Drs Nutting, Reid or Donnelly believed that Mr Harvey's complaints to them were consistent with C5/6 discal pathology;
  • Dr Campbell noted numbness and altered sensation in a non-dermatomal distribution; and
  • although Dr Haydock recorded Mr Harvey as suffering neuropathic symptoms, they were not necessarily a sign of nerve root impingement.  Neuropathic pain may be caused by a number of different factors and it is only if symptoms are radicular in nature that they point to cervical nerve impingement caused by discal pathology.
  1. [87]
    In addition to the above matters, Ms McClymont also argued:
  • each of the medical specialists agreed that disc bulges are commonly found in the general population (the range mentioned was between 16% and 30%) and that they can be asymptomatic and identified as an incidental finding;
  • if the disc bulge at C5/6 pre-existed the event of 5 December 2013, as each of the witnesses seem to agree, it would not necessarily cause symptoms; and
  • the symptoms suffered by Mr Harvey are consistent with a soft tissue injury - a point acknowledged by Dr Campbell who accepted that a soft tissue injury can produce symptoms of pain and paraesthesia in the arms and that those symptoms can be variable and in a non-dermatomal distribution.
  1. [88]
    Ms McClymont also stressed that the opinions of Drs Nutting, Reid and Donnelly are consistent.  Each of those specialists was of the opinion that the disc pathology at C5/6 was both pre-existing and incidental.  None of them believed that his disc pathology had any relationship to Mr Harvey's symptoms as described to them. 
  1. [89]
    In addition, Ms McClymont highlighted that while Dr Campbell was "initially of the opinion" that Mr Harvey suffered a work-related disc protrusion at C5/6, that opinion was substantially qualified during the course of his evidence.  Ultimately, she said,
    Dr Campbell agreed with the proposition that it could not be concluded as a probability that the disc protrusion was caused by the event of December 2013 in circumstances where:
  • disc pathology can be incidental;
  • Mr Harvey's symptoms did not match a dermatomal distribution;
  • Mr Harvey's symptoms were explicable on the basis of his soft tissue injury; and
  • there was a prior episode of symptoms in February 2013.    
  1. [90]
    The nature of Dr Campbell's so called "concession" was the subject of the relevant parties' supplementary submissions after the case concluded and the transcript became available.  For this reason I have included the relevant aspects of Dr Campbell's evidence at paragraphs [43] and [45] above.  This shows, contrary to Ms McClymont's submission, that while Dr Campbell acknowledged the likelihood of a pre-existing disc bulge in February 2013, which was sub-clinical or just boarder-line clinical, he went on to state the injury occasioned by the event of December 2013 turned it into a major problem.  Indeed, he went so far as to "guestimate" the contribution each incident had in relation to Mr Harvey's ultimate discal presentation (20/80). 
  1. [91]
    As well-structured and logical as the submissions on behalf of the Regulator might first appear, they tend to downplay the importance of, or totally ignore, several important aspects of this case, namely:
  • the violent nature of the incident on 5 December 2013 when Mr Harvey, who weighted of the order of 125-130kgs at the time, was subjected to considerable trauma when an air lock went through the hose he was holding and lifted him off his feet;
  • the almost immediate onset of neurological symptoms, including numbness and paraesthesia (which Mr Harvey's medical records show were still in existence as at 3 February 2014 and the subject of discussion between he and Dr Haydock on 22 May 2014);
  • the results of the MRI of 20 February 2014 which, although affected by motion artefact, disclosed the existence of a broad-based disc bulge at C5/6, more prominent on the right than the left;
  • the continued existence of neurological symptoms during February (when
    Mr Harvey saw Dr Nutting); March (when he saw Dr Reid); May, July and August (when he saw Dr Frank);
  • the evidence of both Mr Harvey (which I accept) and Mrs Harvey (which I also accept) to the effect that he continued to experience symptoms of pins/needles/numbness in his right arm and hand, which waxed and waned, over the period from late 2013 up to and including the time they became more pronounced around early September 2014;
  • Dr Haydock's evidence to the same effect, see paragraph [19] above (notwithstanding her concession under cross-examination that her notes did not contain any reference to paraesthesia after 31 December 2013);
  • the results of the MRI scan of 2 September 2014 which, while mentioning a prominent broad-based disc protrusion at C4/5, specifically mention the existence of a prominent posterior broad-based right paracentral/proximal forminal disc protrusion which flattens the right side of the cervical cord as well as the exiting right C6 nerve root;
  • Dr Campbell's evidence that he examined the MRI scan of 20 February 2014 and the MRI scan of 2 September 2014, as well as reading the reports, and reached the conclusion that they did not show an appreciably different radiological picture, including at the C5/6 level; and
  • the existence of neurological pain and paraesthesia earlier in September when Mr Harvey was examined by both Dr Campbell and Dr Donnelly.
  1. [92]
    If the evidence provided by Drs Nutting, Reid and Donnelly and the submission of the Regulator is to be accepted, it would require me to conclude:
  • it was more likely than not that Mr Harvey had an asymptomatic disc bulge at C5/6 prior to 5 December 2013; and
  • while Mr Harvey might have suffered some musculoligamentous/soft tissue type injury as a result of the concrete hose incident on 5 December 2013, he suffered no discal type injury at that time; and
  • the disc bulge/protrusion at C5/6 which appears on the MRI scans of February and September 2014, respectively, is solely attributable to the natural progression of degenerative cervical disc disease.
  1. [93]
    The adoption of the above conclusions would also require me to find that any symptoms Mr Harvey was experiencing as a result of the accepted musculoligamentous/soft tissue injury coincidentally reduced/waned at the same time that the natural progression of his degenerative cervical disc disease increased.  In my considered view, given the nature of the concrete hose incident, such a scenario occurring is so remote as to be implausible. 
  1. [94]
    The more likely scenario, and I so find on the balance of probabilities, is that even if
    Mr Harvey had some asymptomatic issues with his cervical spine prior to
    5 December 2013 the violent nature of the concrete hose incident on that date led to him suffering an injury to his cervical spine which at least involved his C5/6 disc. 
  1. [95]
    In recording that finding I rely upon my consideration of the evidence and submissions as set out above.  In essence, the history reveals that Mr Harvey was asymptomatic before the relevant event and became symptomatic immediately after it, with the effects of his injury continuing to exhibit themselves well into 2014.  In that respect, while he might have had some pre-existing issues in his neck, I am satisfied, on the balance of probabilities, that the onset of the neurological symptoms in his cervical spine on
    5 December 2013 and their continuation thereafter, as described above, constitute an injury arising out of, or in the course of, his employment in circumstances where his employment was a significant contributing factor to his injury.
  1. [96]
    For the foregoing reasons I allow the Appeal.  I find that Mr Harvey's Application for Workers' Compensation for an injury to his cervical spine, including at the C5/6 level, is one for acceptance. 
  1. [97]
    The Respondent is to pay the Appellant's costs of, and incidental to, the Appeal with recourse to the Commission if the parties cannot agree on the amount of costs involved. 
  1. [98]
    I determine and Order accordingly.

Footnotes

[1] Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision .

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Editorial Notes

  • Published Case Name:

    Harvey v the Workers' Compensation Regulator

  • Shortened Case Name:

    Harvey v the Workers' Compensation Regulator

  • MNC:

    [2015] QIRC 212

  • Court:

    QIRC

  • Judge(s):

    Deputy President Bloomfield

  • Date:

    14 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Rossmuller v Q-COMP [2010] ICQ 4
2 citations
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Cite 1 - [2010] ICQ 4
Cite 2 - [2010] ICQ 4

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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