Aistrope (née Hull) v RSL Care RDNS Ltd
[2024] NSWPIC 247
•13 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Aistrope (née Hull) v RSL Care RDNS Ltd [2024] NSWPIC 247 |
| APPLICANT: | Arohaina Aistrope (nee Hull) |
| RESPONDENT: | RSL Care RDNS Limited |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 13 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Accepted injury to lumbar spine; dispute regarding alleged coccyx injury; lack of contemporaneous evidence; Kooragang Cement Pty Ltd v Bates, Department of Education & Training v Ireland, Davis v Council of the City of Wagga Wagga, and Paric v John Holland (Constructions) Pty Ltd discussed and applied; Held – the applicant has not discharged the onus of establishing an injury to coccyx; determination made; award for the respondent with respect of the allegation of injury to the coccyx on 16 October 2020. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the respondent in respect of the allegation of injury to the coccyx on |
STATEMENT OF REASONS
BACKGROUND
Arohaina Aistrope (the applicant) was an assistant in nursing with RSL Care RDNS Limited (the respondent). There is no dispute she sustained injury to her lumbar spine on
16 October 2020 which necessitated a lumbar fusion. Liability was accepted by the respondent/insurer.On 28 March 2023, approval was sought for coccygectomy surgery. Following assessment, the request was declined on the basis the medical evidence and documented history did not establish injury to the coccyx in the incident on 16 October 2020. Internal review was unsuccessful. Proceedings in the Personal Injury Commission (Commission) were commenced. The matter underwent the usual case management pathway. Following conciliation impasse, the parties requested determination.
The applicant was represented by Ms Campbell of counsel instructed by Ms King. The respondent was represented by Ms Goodman of counsel instructed by Mr Mickleburgh.
Ms Chan represented the insurer.In determining the matter, I considered oral submissions from counsel, the documents attached to the Applicant to Resolve the Dispute (ARD), the Reply and the law found in the Workers Compensation Act 1987 (the Act).
ISSUES FOR DETERMINATION
The issues that I must determine are:
(a) whether the applicant sustained an injury to her coccyx arising out of or in the course of her employment on 16 October 2020 – s 4 of the Act;
(b) whether her employment was a substantial contributing factor to her injury – s 9A of the Act, and finally
(c) whether the proposed surgery is reasonably necessary – s 60 of the Act.
EVIDENCE
As liability has been accepted for the lumbar spine, in the interests of brevity, I will confine analysis of the evidence to the alleged injury to the coccyx.
Applicant’s evidence
In the statement dated 24 January 2022,[1] the applicant reported the mechanism of injury as follows (unedited):
“On 16 October 2020, I sustained injury to my lumbar spine after I attempted to pivot a resident who had very limited range of movement in her legs and refused to be hoisted. As such, I was required to lift and pivot the resident. The resident lost balance during the transfer and fell backward on top of me causing my back to hyperextend. I felt an immediate onset of lower back pain and became extremely concerned as it felt like something serious.”
[1] Folio 2 of the ARD.
Disabilities and the impacts of the injury are described but exclude any claim of coccyx injury or symptoms in the tail bone.[2]
[2] Folio 4 of the ARD – paragraph 34.
In the supplementary statement dated 19 March 2024, the applicant stated (unedited):
“4. In my statement dated 24 January 2022 at paragraph 24, I described the accident as follows:
… The resident lost balance during the transfer and fell backward on top of me causing my back to hyperextend. …
5. The resident was a large lady weighing approximately 90kgs. That is why I needed to use a hoist to transfer her from the toilet chair.
6. The hospital bed was a typical metal framed adjustable bed.
7. When the resident lost balance, I didn’t have time to get out of the way. I was stuck between the residents bed and the toilet chair. However, the resident was so large that her weight forced me backwards striking my lower back and buttocks heavily against the metal frame of the hospital bed. The bed itself stopped me from landing onto the floor.
8. I understand the respondent’s IME, Dr H English assumed that I did not fall heavily onto my tailbone. That is simply incorrect.”
The statement recounts frustration in not being able to consult with her usual family doctor and that the doctor in October 2020 failed to record injury to the tailbone but her physiotherapist did report discomfort in the tailbone in July 2021. The applicant confirms no past or subsequent history of injury to the coccyx.
The applicant also stated (unedited):
“24. I have been shown the MRI report of my lumbar spine and pelvis dated 9 December 2022 which recorded:
WorkCover injury. Disc replacement, fusion lumbar spine in June. Coccyx pain since October, starting suddenly after standing …
25. The above record of my coccyx pain only starting in October 2022 is incorrect. I have felt pain in and around my tailbone since the accident.[3]
26. As a result of the lumbar fusion, the nerve pain radiating through my buttocks to the legs has slightly improved. As my sciatic pain has slightly improved, it unmasked the specific pain in my tailbone.”[4]
Dr Y Ghabrial, consultant orthopaedic and spinal surgeon[5]
[3] Folio 9 of the ARD.
[4] Folio 10 of the ARD.
[5] Folio 38 of the ARD.
As regards history of injury, Dr Ghabrial recorded on 27 July 2023 (unedited):
“she gave me a history of injuries to her lower back on 16 October 2020 when she was transferring a patient who wanted to pivot from the toilet to a chair, and lost his footing, and fell against Miss Aistrope….I understand she had a coccygeal fracture…she has had no previous injuries either to the lower back or the coccygeal region… The x-rays of the sacrococcygeal region on 2 February 2023 showed subluxation of the distal sacrum and coccyx….
Miss Aistrope sustained an injury to her lower back at work as mentioned earlier in my report. She has had various methods of conservative treatment and management and ultimately spinal surgery was performed in the form of spinal fusion to the lumbosacral junction with disc replacements at the two levels above. As a result of that surgery, she developed an incisional hernia which has been repaired… at the same time as the back injury, she sustained a fracture dislocation of the sacrococcygeal junction”
Clinical notes Tweed Coast Physiotherapy
Corey Farrell was the physiotherapist predominantly rendering treatment to the applicant. Treatment commenced on 15 October 2020 and cease on 10 December 2021[6] showing a total of 52 treatment sessions. The original attendance recorded:
“strain through the LxSp – about 3 months ago – reports L sided pain with minimal referral, reports some glut/hamstring tightness though. A diagnosis of “left lumbosacral spine (lower back) facet joint sprain| Bilateral lumbosacral spine (Lower back) Discal injury)”[7] was recorded with the date of injury noted as 16/10/2023.”
[6] Folios 132 to 165.
[7] Folio 163 of the ARD.
On 6 July 2021, the notes record:
“subjective: reports more discomfort through Tailbone/lxSp”[8]
[8] Folio 148 of the ARD.
The balance of the notes record the multiple hospital attendances for back pain, progress notes, and treatments provided and tolerances identified at each assessment.
Core Physiotherapy and Exercise Centre
The records show treatment sessions between 9 August 2021 and 13 September 2023.[9]
[9] Folios 166 to 316 of the ARD.
Sessions from 9 August 2021 refer to back pain and burning sensations in the lower limbs and toes. A hydrotherapy exercise program was commenced and thoroughly documented. Many flares ups of back pain are reported. Pain post discogram was reported. The sleep apnoea treatment was recorded. The hamstrings were recorded as being sensitive with multiple entries of lumbar spine pain radiating into the sacrum. Surgery was recorded on
15 June 2022.Melissa Webb physiotherapist on 13 June 2022 recorded the injury as “working as AIN, patient fell onto her extending her backwards… lower back 6-7/10, left calf into foot 7-8/10 agg with sitting”.[10]
[10] Folio 274 of the ARD.
At assessment on 24 June 2022[11] it was recorded “pain previous to surgery has been reduced severely. Only has pain from surgery at localised area”.
[11] Folio 269 of the ARD.
At assessment on 6 July 2022[12] it was recorded “3 weeks post surgery, extremely happy with progress, lumbar/sacral and leg pain reduced now post surgery. Mild P and N”.
[12] Folio 268 of the ARD.
On 29 July 2022[13] it was recorded “presented to ED the previous day with severe pain caused by incision site inflammation/infection” and on 5 August 2022[14] “stated abdominal pain worse than back pain on a daily basis”.
[13] Folio 262 of the ARD.
[14] Folio 261 of the ARD.
On 19 October 2022 at assessment it was recorded “Lsp soreness localised to Coccyx – only last week”[15] (my emphasis). On 24 October 2022[16] it was recorded that she was 19 weeks post-operative with coccyx pain ongoing “2/52 ago started”. At assessment on
8 November 2022[17] again it is recorded “ongoing coccyx [sic] pain that has arisen in the last two weeks”.[15] Folio 246 of the ARD.
[16] Folio 245 of the ARD.
[17] Folio 241 of the ARD.
Relevantly on 25 November 2022[18], at assessment it was recorded “Lots of coccyx pain – new hasn’t had it before (my emphasis) – onset post surgery (L3/4 disc replacement +L4/5/s1 fushion [sic] Dr entee”.
[18] Folio 234 of the ARD.
In a report dated 30 November 2022, it was recorded “Arohaina is still experiencing an extreme amount of coccyx pain whilst sitting, standing…”.[19]
[19] Folio 53 of the ARD.
At assessment on 19 February 2023[20] it was recorded “x-ray posterior subluxation of the distal sacrum and coccyx, more pronounced on sitting projection”.
[20] Folio 212 of the ARD.
The balance of the notes discuss infections, hernia issues, psychosocial issues, anxiety, fear of further surgery, fluctuating pain and discuss compliance with treatment, mainly hydrotherapy.
Dr Kettle, general practitioner
WorkCover Medical Certificates [21]record the mechanism of injury as “client fell onto patient hyperextending her backwards with immediate pain lower back with radiation to both buttocks”.
[21] Folio 22 of the Reply.
In the original referral to specialist Dr McEntee on 11 June 2021, Dr Kettle recorded:[22]
“Thank you for seeing Mrs Arohaina Hull age 32yrs 10mths, for lumbar back pain with left sciatica. Pain was initially triggered on 16/10/2020 at work as a nurse following a patient falling onto her hyperextending her backwards. This gave immediate low back and bilateral buttock pain. More recently pain has been lumbar with left buttock and calf area (?sciatic). She has had extensive physiotherapy and varying periods of graded work periods. She has had 2-3 episodes of acute severe back pain/spasm resulting in ambulance trips to A&E. CT scans are attached.”
[22] Folio 355 of the ARD.
Clinical notes provided show that on 7 December 2022[23] at a telehealth assessment it was recorded (unedited):
“coccyx pain since October, coccyx pain worsening – painful to sit and stand?scar tissue…disc replacement and fusion lumbar spine in june, coccyx pain since October starting suddenly after standing, CT NAD?scar tissue?cause of worsening pain.”
[23] Folio 336 of the ARD.
Dr Vintzi Bonev, consultant neurologist
In his report dated 25 November 2021,[24] he recorded the mechanism of injury as follows:
“Ms Hull reports an incident at work on 16 October 2020, when a large resident she was assisting to mobilise, lost her balance and fell backwards onto Ms Hull, causing
Ms Hull to hyperextend her back, with immediate pain in the left lower back.”[24] Folio 363 of the ARD.
Dr Laurence McEntree, orthopaedic spine surgeon
Serial reports show attendances for lumbar spine pain initially with the first report of coccygeal pain recorded on 2 February 2023[25] when Dr McEntree recorded:
“I have seen Arohaina back in clinic today six months post surgery. She is planning to have her incisional hernia repaired in the near future by Leigh Rutherford I understand. Her back itself feels quite reasonable but she is getting some coccydynia particularly bad when she goes from sitting to standing position. Pain is definitely directly over the coccyx, not in her lumbar spine. She is due to have a CT scan lumbar spine to assess her lumbar surgery and I have also arranged for her to have some x-rays sitting and standing of the coccyx to see if there is any sign of instability. I will follow up with her after those investigations.”
[25] Folio 368 of the ARD.
X-rays were ordered and on 7 February 2023 it was reported[26] “the coccyx x-rays certainly confirm instability of the distal coccygeal segments with significant movement between sitting and standing films”.
[26] Folio 367 of the ARD.
In a report to the respondent on 10 March 2023 Dr McEntree reported (unedited):
“Arohaina Hull is suffering from ongoing coccydynia post her lumbar hybrid surgery. Ongoing coccygeal pain, especially when sitting etcetera is really interfering with her recovery post her lumbar hybrid surgery and with her ability to function on a day to day life. I request approval to proceed to coccygectomy surgery for her.”
Respondent’s evidence
Dr English, orthopaedic surgeon
In a report dated 10 May 2023 the history of injury was recorded as (unedited):
“Ms Hull having started a new job three weeks prior. They were transferring a patient who wanted to pivot from the toilet to a chair. The patient lost their footing as they went to pivot and fell against Ms Hull who was forced into a hyperextended position. She did not fall. She was able to get the patient onto bed and then sat on the bed herself…”[27]
… In summary Ms Hull has had major lumbar surgery following a lower back injury. She has persistent coccydynia. Coccydynia is typically caused by a direct axial fall onto the coccyx onto a hard surface or occasionally accumulative trauma sitting awkwardly. In this instance there is no history of a direct blow to the coccygeal region and the coccydynia does not clearly appear to be related to work.”
[27] Folio 14 of the Reply.
SUBMISSIONS
The applicant’s submissions were:
i) injury to the lumbar spine is not in dispute. The injury was significant and ultimately resulted in fusion. Management for the lumbar spine injury included strong pain medication and then surgery followed by a period of extensive rehabilitation (which included periods of inactivity) which masked symptoms in the coccyx;
ii) the applicant complained of constant radiation of pain in the spine and buttocks and legs which is in the same region of the coccyx;
iii) there was a complaint made of tail bone pain on 6 July 2021 which demonstrates that symptoms were experienced shortly after the injury;
iv) it was only after Dr English’s report that the applicant recalled that she did strike her back and tail bone against the metal frame of the bed;
v) the applicant did not focus on treatment to the coccyx as her primary concern was her lumbar spine;
vi) the applicant is a credible witness and should not be disadvantaged as a result of incomplete recording of symptoms by her treating doctors and specialists who were focusing on the management of her lumbar spine, and
vii) the global medical opinion supports surgical intervention via coccygectomy and so it follows that this treatment is reasonably necessary in the management of her coccyx injury.
The respondent’s submissions were:
i) review of the contemporaneous reports of injury is mandatory. The applicant did not at any time prior to 2024 report she suffered a direct trauma to the coccyx until Dr English recorded that coccyx injuries generally occur as a result of trauma. It was only after this knowledge that the applicant ‘recalled’ she struck her back against the metal edge of the bed and altered her statement;
ii) there is a suggestion by one of the specialists that the applicant’s coccyx injury arose from her lumbar spinal surgery but the claim is not for a ‘consequential condition’ and so I must focus on whether an injury occurred to the coccyx as a result of the events that occurred on 16 October 2020;
iii) neither the report of Dr McEntee nor Dr Ghabrial have connected the current coccyx symptoms to above injury, further Dr Ghabrial’s report refers to a fracture of the coccyx but this is inconsistent with the radiological findings which refer to subluxation of the coccyx, two very different pathologies;
iv) there is no evidence that the symptoms in the coccyx were masked by the treatments undertaken to the lumbar spine. This ‘bar table submission’ has no weight as it is not medically supported;
v) the applicant’s amended history of injury should be treated with caution, particularly as the amended statement referencing that she struck the side of the metal bed was made more than three years after the injury;[28]
vi) the Commission must exercise caution in accepting the history provided by the applicant in her statement where contemporaneous evidence was lacking;[29]
vii) the applicant raised multiple concerns to her treating practitioners about other matters including a hernia, infections, sleep disturbance, anxiety and other domestic and non-work related matters but at no time has she complained of coccyx symptoms until 2022 and specifically post surgery;
viii) it is accepted that there were complaints of ‘pain’ recorded in the tail bone in 2021 and again in November 2022 to the physiotherapist. No diagnosis was offered at that time and symptoms were not reconciled to the injury in
October 2020, that entry also refers to “Tailbone/lxSp”, andix) the applicant has not discharged the onus in establishing that the symptoms and the need for surgery to the coccyx were related to the injury on 16 October 2020.
[28] Watson v Foxman & Ors (1995) 49 NSWLR 315.
[29] Department of Education v Ireland [2008] NSWWCCPD 134.
In reply it was submitted:
i) at all times the applicant’s primary concern was her significant and life changing lumbar spine injury, the rehabilitation required and the sequelae of surgery. She continued to experience radiating pain in the back, buttocks and legs and innocently has failed to distinguish these symptoms as pain arising from the tail bone. Again, symptoms were masked by her treatment modalities and inactivity arising from her rehabilitation program following lumbar spinal surgery;
ii) further the Court of Appeal have cautioned against placing too much weight on clinical notes of treating doctors, given their primary concern is to treat and that rarely if ever do clinical notes represent a complete record of the exchange between a busy doctor and a patient,[30] and
iii) the applicant is a credible witness who has relied on her treating practitioners to support her through the process of injury.
[30] Davis v Council of the City of Wagga Wagga.
APPLICATION OF THE LAW, FINDINGS AND REASONS
Section 4 of the Act defines injury as a ‘personal injury arising out of or in the course of employment’.
In assessing an injury, well established case law demonstrates the following principles:
i) in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological change: Castro v State Transit Authority (NSW),[31] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[32] “the word ‘injury’ refers to both the event and the pathology arising from it”;
ii) the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates;[33]
iii) the applicant bears the onus of establishing injury on the balance of probabilities, and in order to discharge that onus, I must feel an actual persuasion of the existence of that fact: Department of Education & Training v Ireland,[34] and
iv) when assessing the balance of probabilities, if the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred: Malec v JC Hutton Pty Limited.[35]
[31] [2000] NSWCC 12; 19 NSWCCR 496.
[32] (2003) 25 NSWCCR 422, [429].
[33] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
[34] [2008] NSWWCCPD 134 (Ireland), [89].
[35] [1990] HCA 20; (1990) 169 CLR 638.
As indicated above, the applicant sustained a lumbar spine injury which has necessitated surgery. The applicant has been consistently treated by Dr Kettle whose contemporaneous report of the mechanism of injury is consistent with the applicant’s initial statement. Likewise the reports of the physiotherapists who have treated the applicant also document a similar mechanism of injury, at no time was it reported that she struck her spine against the edge of a metal bed.
The applicant claims in her 2024 subsequent statement that she did strike her back against the metal edge of the bed when the patient fell on her and that she has had constant symptoms in the tail bone/coccyx since the injury. There is no medical or factual evidence to support this statement.
Certainly, I acknowledge that there was a complaint of tail bone pain recorded by Corey Farrell on 6 July 2021 but this was isolated and does not reconcile the pain to any injury. Pain is not a diagnosis but a symptom. The entry also refers to “Lx/Sp” and as a standalone entry does not assist with assessment of the matter.
I acknowledge the applicant’s statements that the focus of her management was the lumbar spine pain but I cannot ignore the multiple entries contained in the clinical notes of the Core Physiotherapy and Exercise Centre which clearly establish the onset of coccyx pain only occurred post surgery with no prior complaint. These are contemporaneous reports and I consider that they accurately reflect the presentation and symptoms at the time and I have put great weight on these.
I placed little weight on the report of Dr Ghabrial who did not reconcile any complaints of coccyx pain to the original injury and incorrectly diagnosed a fracture, although appeared to correct that opinion in the latter stages of his report. He does not appear to have accessed the practice notes of the Core Physiotherapy and Exercise Centre which describe the onset of symptoms in great detail and also take into account the difficult rehabilitation process both pre and post surgery. In my view, Dr Ghabrial does not provide a “fair climate” [36]for his opinion. He did not provide an accurate diagnosis (when referenced to the radiological findings) and does not explain how he came to his conclusion.
[36] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
Dr McEntree, the treating surgeon suggests that the symptoms arose post-surgical intervention. His initial reports do not record any complaint of coccyx pain. This is consistent with the applicant’s complaints to the multiple physiotherapists who treated her at Core Physiotherapy and Exercise Centre.
Dr English supports the treatment as being reasonably necessary but in the absence of any direct trauma to the coccyx maintains that symptoms did not occur at the time of the original lumbar spine injury.
The contemporaneous reports of injury are consistent throughout. The general practitioner, physiotherapist and various specialists consistently report that the applicant suffered a hyperextension injury to her back in the course of her work. I acknowledge the applicant’s position, that is, “Dr H English assumed that I did not fall heavily onto my tailbone. That is simply incorrect”. The exhaustive summary above does not demonstrate any contemporaneous evidence that there was a fall onto the tailbone and it is only in the applicant’s supplementary statement in 2024 that there is a suggestion that she struck her back on the metal edge of the bed.
The bulk of the evidence, particularly that of the physiotherapists, who the applicant attended frequently, report symptoms of the coccyx commencing post surgery but specifically at around the three-month post surgery mark with symptoms being denied earlier. This is also consistent with the reports of Dr McEntree and the absence of complaints to her general practitioner.
I have not disregarded the submissions that clinical notes of doctors may not represent the complete history, however in this case, Dr Kettle and the physiotherapist practices generated very thorough medical certificates and progress notes outlining progress on each presentation and confirms the original mechanism of injury as being a hyperflexion injury. The reports are thorough in that they refer to a number of factors including non-work related factors and if the applicant did complain of pain in the coccyx, it is more likely than not (given the detailed level of reporting) that this would have been recorded. Certainly when the issue was raised post surgery, the clinical notes are detailed about symptoms and restrictions.
The upshot of this discernment is that I cannot find having regard to the commonsense test in Kooragang and the principles discussed in Ireland that the applicant has discharged her mandatory onus on the balance of probabilities as defined by Malec that she sustained an injury to her coccyx arising out of or in the course of her employment with the respondent on 16 October 2020. The evidence does not establish a sudden or identifiable pathological change (Castro) and likewise, the evidence does not demonstrate that the pathology arose from the event on 16 October 2020 (Lyons). It follows, that in the circumstances, there will be an award for the respondent with respect to the allegation of injury to the applicant’s coccyx.
SUMMARY
For the above reasons, I make the orders as set out in page 1 of the Certificate of Determination.
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