Angel v Carl Holt t/as Jims Cleaning Wyong

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Angel v Carl Holt t/as Jims Cleaning Wyong [2024] NSWPIC 198
APPLICANT:	Michelle Angel
RESPONDENT:	Carl Holt trading as Jim’s Cleaning Wyong
MEMBER:	Cameron Burge
DATE OF DECISION:	19 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and medical expenses by way of proposed lumbar fusion surgery; requirement for surgery is not in dispute, however, the fact of the alleged injury is in dispute; whether applicant suffered injury by way of a frank aggravation of underlying pathology as alleged; competing lay evidence; whether applicant has discharged onus of proving injury took place; if injury is proven, the applicant’s pre-injury average weekly earnings (PIAWE) is in dispute, as is her capacity for employment during the period claimed; Held – the applicant suffered injury as alleged to her lumbar spine; the proposed lumbar fusion surgery is reasonably necessary as a result of the injury; the respondent is to pay the costs of and incidental to the proposed surgery; the applicant was and remains totally incapacitated for employment as a result of her injury; the parties are to lodge submissions as to the applicant’s PIAWE within 14 days, following which the claim for weekly benefits will be dealt with ‘on the papers’.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her lumbar spine in the course of her employment with the respondent by way of aggravation of an underlying condition on 21 October 2020. 2. As a result of her injury, the applicant was and remains totally incapacitated for employment for the period claimed. 3. The parties are to lodge and serve written submissions as to the applicant’s PIAWE within 14 days of the date of these reasons, following which the claim for weekly payments will be dealt with ‘on the papers.’ 4. As a result of the injury, the lumbar fusion surgery proposed by Dr Coughlan is reasonably necessary. 5. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses, including the costs of and incidental to the proposed lumbar fusion surgery.

STATEMENT OF REASONS

BACKGROUND

Michelle Angel (the applicant) seeks payment of weekly compensation and medical expenses by way of a proposed lumbar spine fusion with respect to an injury alleged to have occurred on 21 October 2020 in the course of her employment as a cleaner with the respondent, Carl Holt trading as Jim's Cleaning Wyong.
There is no issue the applicant suffered from pre-existing lumbar spine pathology. She alleges the injury upon which she relies was an aggravation of that condition in accordance with s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
The respondent denies any work-related injury took place, and asserts any requirement for lumbar spine surgery is not brought about as a result of any workplace injury. The fact the applicant requires the proposed surgery is not in issue.
Additionally, should there be findings in the applicant's favour on the primary liability question, there are disputes as to her pre-injury average weekly earnings (PIAWE) and her ongoing incapacity.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered a work-related injury to her lumbar spine;
(b)    if the answer to (a) above is in the affirmative, whether the applicant suffers incapacity for employment, and if so, to what extent, and
(c)    if the answer to (a) above is in the affirmative, what was the applicant's PIAWE.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing before me on 29 February 2024. At the hearing, the applicant was represented by Mr Schipp of counsel instructed by Mr Kolarovski. The respondent was represented by Mr Barnes of counsel instructed by Ms Glide.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered an injury in the course of her employment with the respondent

The applicant carries the onus of proving she suffered an injury in the course of her employment. “Injury” is relevantly defined in s 4 of the 1987 Act as follows:
“In this Act: Injury…
…(b) includes a 'disease injury', which means:
...(ii) ‘The aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease...’"
An applicant is able to rely on injury simpliciter despite the existence of the disease, as was highlighted in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (Zickar). In that case, the worker suffered brain damage due to the rupture, at work, of a congenital aneurysm. The congenital condition could be characterised as a disease, however that would not have satisfied the requirements cl (b) of the definition in s 4 as it then was. The worker succeeded in the High Court on the basis that the rupture itself could be described as an injury simpliciter. The Court held that the presence of a disease did not preclude reliance upon that event as a personal injury. Toohey McHugh and Gummow J agreed with the passage in Accident Compensation Commission v McIntosh [1991] 2 VR 253 that, "it is nonetheless a rupture – something quite distinct from the defect, disorder or morbid condition, which enables it to occur" (at [262]). In other words, the terms “personal injury” and “disease” are not mutually exclusive categories.
A sudden identifiable physiological change to the body brought about by an internal or external event can be a personal injury, and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury. In Kelly v Western Institute NSW TAFE Commission [2010], NSWWCCPD71, Deputy President Roche said:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626.”
The question of “main contributing factor” in claims surrounding injuries involving a disease process has been considered in numerous decisions in the Commission and its predecessors. The relevant authorities confirm that where an injury in the nature of an aggravation or exacerbation is relied upon, the relevant factual investigation to be undertaken is whether employment was the main contributing factor to the aggravation, rather than the underlying pathology. Those decisions are consistent with the ratio of the High Court in Semlitch, where Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him [sic] rather than being concerned with the underlying mechanism.”
In Cant v Catholic Schools Office [2000] NSWCC37, Burke CCJ said:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated, there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.” (At [1717]).
Such reasoning was also approved and applied by the Court of Appeal in Australian Conveyor Engineering Pty Limited v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606, where the Court said the words “injury consists in the aggravation … of a disease” should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by way of aggravation (Sheller JA at [616]).
It can therefore be said that the proper test is whether the aggravation has impacted the individual concerned. It is not necessary for the pathology of the particular disease to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132. In that matter, Roche ADP (as he then was) was satisfied, on the whole of the evidence, it was open to the arbitrator to conclude the worker suffered an aggravation of occupational asthma, in the sense that the symptoms increased and became more serious while he was employed.
The authorities also make it clear that there can only be one “main contributing factor”: see AV v AW [2020] NSWWCCPD 9.
In this matter, the initial factual investigation to be undertaken is to determine firstly whether the incident said to give rise to the aggravation of the applicant's lumbar spine condition took place.
As noted earlier in these reasons, there is no question the applicant had previously suffered lumbar spine pathology. This much is made clear from the treating medical records, and at no time did she resile from the presence of that condition or pre-existing symptomology.
Nevertheless, there is also no issue the applicant was able to carry out work for many years while suffering from the pre-existing lumbar condition, and did so with various employers over various periods of time. I do not propose to set out in detail the applicant's work history, however, there was no issue raised that she was able to work and return to employment despite the presence of pre-existing back problems.
In her statement to the respondent's investigator dated 10 March 2022, the applicant provided the following version of events in relation to her alleged injury:
“14. On Wednesday, 21 October, we met at a large lakefront property at Gorokan. This particular property had a corner bath. It was pretty filthy. The best way for me to clean corner baths is to lean across and clean by twisting and turning rather than stepping into them with my shoes on. While I was leaning across cleaning, I felt a little ‘pop’ in my mid to lower back on the left-hand side. It felt like bone on bone which created discomfort and a little bit of pain. I thought ‘Oh that didn't feel so good, I hope it's nothing too bad’. I continued to work for the rest of the day (another couple of that houses).
15.    Carl and I were in separate cars that day, but I did mention to Carl that I had hurt my back. This conversation took place while we were finishing cleaning this house together. I told him I popped something when I was doing the last bathroom of three at this property. I was very specific about exactly how it happened. He did not mention anything about an incident report or anything like that. I did not think to do anything official about the injury at the time. I was not experiencing an extreme pain at the time but the next day I felt really tight, it was pinching and I was feeling sharp little pains.
16.    On Thursday, I just pushed through. I did not want to say I was sore as I wanted the work; I did not want to jeopardise the job. After cleaning, I met with my DSW [disability support worker] client [the applicant had also commenced a second job at the time of her injury]. We went to Bateau Bay Square and had sushi and looked around Kmart and returned to the office at the entrance and made plans to go to Somersby Falls the following week. I was in pain but did not want to let my client down as we were newly acquainted and I am aware that certain types of disabilities require routine.
17.    I felt the NDIS client was not put first so on 22 October 2022 (during our appointment), I advised my DWS client that the following week would probably be my last. This was another reason I did not want to lose my job with Carl as I was already going to be losing income from resigning from my DSW job. I had previously advised Carl that I was probably going to resign from the DSW job due to lack of training, funding issues, et cetera. However, I also had a DSW offer with New Horizons at the same time I was offered the job with Castle personnel so I had planned to re-engage with HR/recruitment at this company.
18.    On Friday, I was unable to work because of pain in my back so I texted Carl to say I was not well and unable to come in. I was scared that if I told him it was my back, he would deem me unfit to do his work (which is what he did in the end). I basically lay down for the day and took painkillers.
19.    I went to work on the Monday, Tuesday, Wednesday and Thursday. I was in quite a lot of pain. Certain bending hurt me, so my partner taped me up with physio tape and I took painkillers and used a heat rub. I could still twist and turn but not fully.
20.    I mentioned the pain in my back again on, or around Tuesday, 27 October 2020. I do not remember the exact day but I do remember that it was a lady's house who worked at the local high school. I remember because at the time I was cleaning using a backpack vacuum and Carl was starting to mop as we finished up. I was saying I wish I had stronger core muscles and Carl turned the conversation into a very blasé conversation around how he really needed to get back to the gym too.”
In a further statement dated 3 March 2023, the applicant referred to her previous back symptoms in the following terms:
“12. I previously had issues with my back, however these were asymptomatic and caused me no restriction in undertaking my employment duties in any field of employment previously specified.”
The respondent has also provided a statement in these proceedings, found at page 43 of the Reply. In relation to the events of 21 October 2020, the respondent stated:
“12. On Wednesday, 21 October, I had booked five jobs for the day. We did have a job in Gorokan. It was the first job. It was a big house with two kitchens and four bathrooms. One bathroom had a corner bath which the client never used for health reasons; she could not step into it. The bath was literally a wipe over, it did not need scrubbing.
13.    I went with Michelle to the bathroom. I always tell my cleaners to step into the bath and to clean the bath from squatting inside it to avoid leaning into or bending over. I explained about stepping into the bath; it is a quick description given in a conversational way.
14.    I went off and did the kitchen. We continued working together until the job was finished. Nothing at all was mentioned to me about any sort of injury suffered at the job. Throughout the day I would ask Michelle how she was going, (as I do with all new casuals). It was only her second day, and some people find cleaning more tiring than they expected. I would just do a quick check-in to ask, ‘is everything all right?’ ‘are you going okay?’ and she always said ‘yes’. I never noticed any restriction to Michelle's movements, or that she moved awkwardly or was grimacing or anything like that. She seemed fine.
15.    Michelle attended each of the remaining jobs that day. There were no complaints at all from her. She was getting her routine going and we got through the day well. There was absolutely no mention from Michelle of any injury, discomfort or pain of any kind. Michelle, coming from a management background, would know about incident reporting, but she said nothing about an injury to me. I did not notice any problems with her movement or any grimacing or anything else that would suggest she was hurt.
16.    If Michelle had told me she was hurt, I would have suggested she go home, or take a few minutes rest and see how she felt. I would not have got her to keep cleaning if I had known she was hurt. I would not even have been thinking of a claim at that point, but just how I would need to plan my week if she could not work.
17.    We did have a conversation about the physicality of cleaning work. People do underestimate how tiring cleaning can be. It is a physical job. I have suggested to people that they get fit; that they take a Radox bath at the end of the week to relax their muscles. This is more a casual chat than a formal statement. I do not know when the conversation with Michelle would have taken place, we probably had this type of conversation more than once. It is not a scripted thing, just a casual conversation.
18.    The remaining houses that day were fairly conventional homes, they were WorkCover clients and smaller houses with single bathrooms and some had no baths at all.
19.    At the end of the day, everything seemed fine. I thanked Michelle for her work and gave her a list of addresses for the next two weeks. A lot of clients are fortnightly, and some are weekly, so I provided the list for all the upcoming jobs. There were no issues raised by Michelle about her back or anything else.”
In his statement, the respondent noted that on Friday 23 October 2020, he received a text from the applicant saying she was not coming to work. She did not say why but certainly did not refer to any pain or injury. The respondent also notes the applicant then worked the following Monday to Thursday without, he says, any indication that anything was wrong or of pain or incapacity.
The respondent states that on Thursday 29 October, he informed the applicant their work relationship was not progressing in the manner which he had hoped, the situation was not working for him and indicated their work relationship would cease. According to the respondent, he and the applicant shook hands and there was no animosity.
For the respondent, Mr Barnes submitted no injurious event had taken place. He relied upon the respondent's statement in support of that position, together with email correspondence from January 2021. He submitted the applicant's explanation for not telling the respondent about the seriousness of the alleged injury was incongruous. For the applicant, Mr Schipp submitted it was understandable for a new worker not to tell their employer they had suffered a serious injury so soon into their employment, particularly in circumstances where they were hoping to retain their job.
On balance, I accept Mr Schipp's submission. The respondent’s concession that he and the applicant discussed the rigours of cleaning work on the date in question gives rise to a question as to why that topic of conversation would be raised. I am of the view the respondent’s recollection of the discussion with the applicant is the less reliable of the two versions.
I do not say that critically of the respondent, rather it is in my view more likely the applicant would accurately recall the conversation given she had suffered an injurious event on that day, albeit one whose seriousness she initially downplayed, as opposed to the respondent, for whom a mere mentioning of a twinge in an employee’s back would be less likely to be recalled.
Mr Barnes also submitted that the email correspondence between the applicant and respondent from January 2021 is consistent with no notice of injury having been provided. He noted the respondent indicated in his response to the applicant's email that at no time did the applicant inform him she had been injured whilst in the respondent's employ.
In reply to that email, the applicant noted on 4 January 2021 at 2.15pm that she did not have any intention to claim workers compensation, and that she visited her doctor after her employment with the respondent had ended. She indicated to the respondent that the forms which she had forwarded to him via an earlier email were for her income protection policy which she had privately paid over the course of 15 years.

Relevantly, when the applicant first emailed the respondent on 3 January 2021, she did inform him that she had suffered an injury in the course of her employment.
In terms of contemporaneous medical evidence, there are several salient entries in the applicant's general practitioner (GP) notes. The first is an entry on the alleged date of injury, which Mr Barnes sought to rely upon as evidence of a lack of any injurious event, as it made no reference to the applicant having hurt her back. However, as Mr Schipp noted, the consultation with the applicant's doctor was explained by her in her further statement as having been organised before work on the alleged date of injury and was in relation to the applicant's mental health.
In my view, Mr Schipp's submission is persuasive. The clinical record discloses a discussion concerning the mental health of the applicant on the alleged date of injury, and that the consultation took place via telehealth. Indeed, the respondent himself acknowledged as much at paragraph 13 of his statement, where he said:
“12. Michelle never disclosed any previous issues with her back which I would have remembered, as it would have been a risk. She made no mention of any previous medical problems at all. However, on 20 October (the day before her alleged injury) she texted me to advise that she would be having her GP ring her during work time the following day regarding a referral (text attached). I do not know what that referral was about. However, if the phone call took place, it actually means she spoke to her doctor the same day that she alleged she was injured.”
I am persuaded that the applicant did contact her doctor on the date of injury, however, I accept that consultation took place before the time of her alleged injury and in accordance with prearranged scheduling. In my view, the GP entry confirming the applicant's telephone attendance upon her doctor on the date of injury is not evidence of an absence of complaint immediately post-injury on her part. Indeed, the respondent acknowledges the telephone appointment was prearranged and on balance I accept the applicant's account that the consultation took place before her alleged injury.
However, that finding does not prove the applicant suffered an injury as alleged.
An examination of the GP clinical records reveals the applicant consulted Dr Meeran on 3 November 2020. The clinical entry on that date reads as follows:
“ID checked
Verbal consent for telehealth billing obtained
Suffers with back pain
Flare up of back pain
Struggling to stand and sit
Did have paraesthesia of the left leg
No loss of sensation
No weakness of the limbs
No bowel or bladder problems
Long discussion of management,
Doesn't want injection
Wants a repeat scan.”
It should be remembered that the applicant's consultations with her GP were in the midst of the COVID pandemic, which explain why her consultations around this time were largely by way of telehealth.
The applicant underwent a CT scan of her lumbar spine and on 11 November 2020 and obtained a referral for physiotherapy. The applicant thereafter continued to have frequent and repeated consultations with her general practitioner. By 21 December 2020, the applicant was beginning to suffer urinary difficulties. In 2021, the applicant was referred to Dr Coughlan, treating surgeon.
Mr Barnes noted the applicant had suffered from back pain requiring significant treatment in the past. However, independent medical examiner (IME) Dr Patrick referred to the significant pain which the applicant suffered as a result of the alleged injury. He described the alleged mechanism of injury as consistent with the applicant's complaints. Dr Patrick had a history of the earlier incidents and noted the applicant had always obtained a good outcome. That included an incident in January 2020 when the applicant hurt her back lifting a kayak from a van which necessitated five courses of physiotherapy and no time off work.
On 30 December 2021, the applicant underwent a bone scan of her lumbar spine which revealed disco-vertebral degenerative disease between L5 and S1, mainly on the left side. The scan revealed “avid increased uptake between the vertebral bodies of L5 and S1, mainly on the left side.”
A CT scan of the applicant's lumbar spine taken in January 2020, some nine months before the alleged injury, revealed a broad-based disc bulge at L3/4 and L4/5 together with L5/S1. It should, however, be noted that the applicant was able to return to work and carry out her duties after having the CT scan and despite the pathology in her lumbar spine. An MRI taken on 20 August 2021 under complaints of left L5 pain and bladder issues revealed prominent disc height narrowing at L5/S1 and end plate signal change to the left side, together with mild disc bulges at L3-4 and L4-5.
It is therefore apparent that there was significant lumbar spine pathology present before the alleged injury at issue. Nevertheless, in circumstances where the applicant's claimed injury is by way of aggravation to that underlying pathology, such findings on prior radiological investigation are not fatal to her claim.
Ultimately, I must be persuaded on the balance of probabilities that the applicant's injury took place and that there was an injurious event as alleged. It is necessary for a trier of fact to have an actual persuasion of such an event having taken place. In this matter, I am so persuaded.
Although the respondent is adamant the applicant did not complain to him while she was employed of any lumbar injury, I note his recitation of various conversations between he and the applicant are not completely inconsistent with her version of events. The respondent, to his credit, outlines a number of conversations in which the arduous nature of the cleaning work was discussed. It is therefore apparent that the parties to the proceedings did have discussions surrounding discomfiture which can be caused by cleaning duties.
On balance, I prefer the version offered by the applicant and am persuaded those conversations are consistent with her having suffered an injury. To the extent there is a discrepancy between the respondent and the applicant regarding their conversations, I prefer the version provided by the applicant, noting that she attended upon her general practitioner mere days after the alleged injurious event complaining of a flare-up of pre-existing back pain.
Although the clinical records do not record any work incident as being the cause of that flare-up, I note the usual caution which must be had when relying upon contemporaneous histories recorded by treating practitioners as proof of the history actually provided by patients.
When one examines on a commonsense basis the factual matrix surrounding the alleged injury, it is apparent the applicant had suffered a serious worsening of her symptoms in the timeframe immediately following the allegedly injurious event. That is consistent, in my view, with such an event having taken place. I am therefore satisfied, having examined the lay and medical evidence, that the alleged injury to the applicant's lumbar spine did in fact take place as she alleges.
This being so, it follows from the manner in which these proceedings were conducted that the respondent accepts the nature of the applicant's lumbar spine condition necessitates the surgery proposed by Dr Coughlan. The dispute in this matter related to causation and to whether an injurious event took place. In this matter, the injury is by way of a worsening of the symptoms related to pre-existing pathology. It is therefore irrelevant that scans taken before and after the injury do not show significant pathological change. Plainly, the contemporaneous records reveal the applicant suffered a worsening of symptoms as a result of the incident at issue and as such her condition meets the requirements of s 4 (b) (ii) of the 1987 Act.
For these reasons, the respondent will be ordered to pay the costs of an incidental to the proposed lumbar spine surgery.

The claim for weekly benefits

I have carefully examined the relevant wage material in relation to the applicant's PIAWE. The claim for weekly benefits is somewhat confused, as the applicant pleaded a rate of $1,588.55 per week, for reasons which are set out below. At the preliminary conference, the parties advised there was no issue in relation to the applicant’s PIAWE.
However, the respondent relied on a work capacity decision dated 29 April 2022 attached to the Reply, which placed the applicant’s PIAWE at $517.83 per week. At the hearing, both parties made submissions on the issue, with the applicant submitting her actual PIAWE was in accordance with that listed in her Claim Form, namely $646 based on a 25 hour working week.
I am unable at this point to accept the respondent’s work capacity decision, as it merely states raw numbers without setting out the context within which those figures were calculated. An email from a case management specialist of the respondent’s insurer to the applicant dated 6 September 2022 set out calculations which asserted the relevant PIAWE was $1,588.55; no doubt the basis for the claimed amount in the Application, which at first blush seems in stark contrast to the findings of the work capacity decision.
The exercise of determining weekly compensation based on incapacity for employment is often not an exact one. However, in this matter the respective positions of the parties in relation to the issue are so disparate that they require further clarification, lest any conclusion at this point in time be a mere exercise in guess work. I will therefore order the parties to lodge and serve written submissions only on the issue of PIAWE within 14 days of the publication of these reasons.
The parties have, however, made submissions in relation to the applicant’s capacity for employment, and I do not require further submissions in relation to that question.
The applicant's condition is plainly debilitating, and I have found it requires serious anterior spinal fusion surgery.
Having found a causal link between the work-related injury and the need for the surgery, it follows that the debilitating pain and symptoms brought about by the work-related injury are the cause of the applicant's incapacity for employment.
The applicant's treating doctor, along with her IME and treating surgeon all support the proposition that the applicant has, for the period claimed, remained unfit for employment. I accept their views, noting there is little, if any, medical evidence which contradicts them as regards the objective seriousness of the applicant’s condition.
As such, and given the applicant's claimed period of workers compensation all falls within the s 37 period, it follows the respondent will ultimately be ordered to pay the applicant’s weekly compensation pursuant to s 37 in respect of total incapacity. However, the parties are invited to make further submissions in relation to PIAWE in order that the applicable weekly compensation rate can be properly quantified.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 198

19 April 2024