Arnold v Campbelltown City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Arnold v Campbelltown City Council [2023] NSWPIC 394
APPLICANT:	Bradley Arnold
RESPONDENT:	Campbelltown City Council
MEMBER:	Jane Peacock
DATE OF DECISION:	8 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Lumbar spine injury; respondent denied liability; evidence weighed in the balance and on the balance of probabilities it was determined that the applicant suffered an injury consisting in the form of an aggravation, acceleration, exacerbation or deterioration of an underlying disease in his lumbar spine, to which his employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration; Held – award for the applicant for weekly compensation and medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent pay the applicant weekly compensation from 10 June 2022 to 9 September 2022 at the rate of $1,320.50 per week. 2. The respondent pay the applicant weekly compensation from 10 September 2022 to 12 September 2022 at the rate of $1,112 per week. 3. The respondent to have credit for leave paid during the above periods. 4. The respondent pay the applicant’s s 60 expenses on production of accounts and/or receipts and/or Medicare Charge.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), as amended, the applicant, Mr Bradley Arnold (Mr Arnold) seeks weekly compensation and compensation for medical expenses under the Workers Compensation Act 1987 (the 1987 Act) in respect of injury alleged deemed to have occurred on 12 November 2021 to his lumbar spine.
The respondent is Campbelltown City Council (the Council). The Council was insured at the relevant time for the purposes of workers compensation by (the insurer).
The Council denied liability for the claim.

ISSUES FOR DETERMINATION

Mr Arnold alleges injury to his lumbar spine deemed to have occurred on 12 November 2021, such injury consisting in the aggravation, acceleration, exacerbation or deterioration of a pre-existing disease in the lumbar spine by reason of the heavy nature and conditions of his employment with the Council as an urban landscape horticulturist, to which his employment was the main contributing factor to the aggravation of his re-existing disease in the lumbar spine. He claims compensation tor weekly compensation and medical expenses.
The Council disputes the allegation of injury.
The Council seeks an award for the respondent.
Mr Arnold was granted leave by consent to amend the Application to claim weekly compensation from 10 June 2022 to 12 September 2022 and to seek a general order in respect of the payment of s 60 expenses.
Pre-injury average weekly earnings (PIAWE) is agreed by the parties at $1,390 per week.
In the event there is a finding in favour of Mr Arnold on the liability question it is not disputed that an award for weekly compensation as claimed would follow.
In the event there is a finding in favour of Mr Arnold on the liability question it is not disputed that a general order for s 60 expenses would follow.
In the event that Mr Arnold success on the question of injury, it is agreed by the parties that awards would be made in his favour as follows:
“1.     The respondent pay the applicant weekly compensation from 10 June 2022 to 9 September 2022 at the rate of $1320.50 per week.
2.     The respondent pay the applicant weekly compensation from 10 September 2022 to 12 September 2022 at the rate of $1112.00 per week.
3.     The respondent to have credit for leave paid during the above periods.
4.     The respondent pay the applicant’s section 60 expenses on production of accounts and/or receipts and/or Medicare Charge.”

PROCEDURE BEFORE THE PEROSNAL INJURY 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) by consent and considered in making this determination:
For Mr Arnold
(a) the Application and attached documents.
For the Council
(b) Reply and all documents attached.

Oral evidence

Mr Arnold did not seek leave to adduce oral evidence.
Counsel for the Council did not seek to cross-examine Mr Arnold. It is noted that this was on the basis that counsel for the Mr Arnold will not be making a Browne v Dunn submission on the failure to cross-examine.

FINDINGS AND REASONS

Mr Arnold alleges injury to his lumbar spine deemed to have occurred on 12 November 2021, such injury consisting in the aggravation, acceleration, exacerbation or deterioration of a pre-existing disease in the lumbar spine by reason of the heavy nature and conditions of his employment with the Council as an urban landscape horticulturist, to which his employment was the main contributing factor to the aggravation of his re-existing disease in the lumbar spine.
Mr Arnold alleges that his employment with the Council was the main contributing factor to the aggravation of his lumbar spine disease condition of spondylolisthesis and right L4 nerve root compression.
Mr Arnold came to surgery on his lumbar spine on 10 June 2022 and had time off work. He had a good result from the surgery and after 15 weeks he returned to full duties.
The Council disputes injury and disputes that Mr Arnold was injured as alleged.
The case must be determined on the balance of probabilities on the evidence and in accordance with the law.
Section 4 of the 1987 Act defines injury as follows:
“4 Definition of ‘injury’
(cf former s 6 (1))
In this Act—
‘injury’ —
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(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, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9 of the 1987 Act provides as follows:
“Liability of employers for injuries received by workers—general
(cf former s 7 (1) (a))
(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”
Section 9A provides as follows:
“No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
[Note: In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.]
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Turning to an examination of the evidence in this case.
Mr Arnold gave evidence in three statements dated 27 July 2022, 28 September 2022 and 12 March 2023 respectively.
In his statement dated 27 July 2022, Mr Arnold gave evidence that prior to working for the Council he worked as a carpenter. The work could be heavy at times. He had occasional pain in his back but did not seek treatment.
He gave evidence that he was also a rally car driver. He had an accident in 2007 when the car rolled several times. He cannot recall hurting his back and was not treated for a back injury. He gave more evidence about this accident in his subsequent statement dated
28 September 2022 in which he gave evidence that he hurt his neck, shoulders and upper back in the 2007 accident but did not need ongoing treatment for these injuries. He did not hurt his lumbar spine and did not receive treatment for his lumbar spine as a result of the 2007 accident.
He also gave evidence with respect to the rally car driving as follows:
“I have also been involved in other accidents in rally car driving which were not major accidents. I cannot recall ever suffering any injury to my lower back or suffering any pain or sensation which are related to my lower back or lower limbs after any of those accidents.”
He also gave evidence in his statement dated 28 September 2022 that in February 2015 he was involved in a Segway accident where he fell from a Segway and landed on his buttock. He sought treatment from outpatients at Campbelltown Hospital. He gave evidence:
“I had no other treatment other than the attendance at Campbelltown Hospital. I was not aware of any pain affecting my lower back or pain going into my legs other than genal soreness over a couple of days after that incident. I did not have any ongoing treatment other than the aforementioned attendance at Campbelltown hospital.”
I note that this Segway incident occurred in February 2015, resulted in no ongoing treatment and pre-dated his employment with the Council in October 205 by some eight months. Prior to his employment he was required by the Council to undergo a medically supervised “physical”. After passing the “physical” he was hired as full time employee. He was then able to undertake in that employment physical work which was of a heavy and repetitive nature. Mr Arnold gave evidence as follows:
“Prior to commencing with Campbelltown City Council I needed to go through a physical which was supervised by a Doctor and having completed that physical I was taken on as a full time employee.
I commended work with Council in October 2015 and continued working for Council from that time and in a variety of physical/labour intensive roles for the next six years yup until going off work on 9 June 2022 to undergo the surgery proposed by Dr Sheridan.”
In his statement dated 27 July 2022 Mr Arnold gave evidence about his work with the Council as follows:
“4. My employment with Campbelltown Council since October 2015 requires me to do tasks, including mulching, I do a very large amount of mulching. We shovel mulch form the back of trucks in very large quantities and then distribute the mulch. This involves constant shovelling actions and twisting and turning constantly to one side or the other in the shovelling action. Additionally, we do weeding, hedging and planting. I also do litter pick up. Additionally I do spraying work with a back pack, often for many hours at a time. Additionally although less often, I do mowing work on a ride on mower., The work is constant and involves repetitive actions, whether it be carrying tools of the trade and repetitive wielding of the tools such as shovels or picks or other tools , together with what is often repetitive and forceful lifting and so doing a significant amount of this work whilst in a bent over or slightly bent over position. Additionally I am regularly in a bent position whilst weeding and also reaching to engage in activities such as trimming . Additionally I have been driving a sit on lawn mower. Unfortunately the seat was faulty and I felt I was constantly being jolted and jarred whilst driving this particular machine.”
In his statement dated 12 March 2023, Mr Arnold gave further evidence about his duties with the Council, including the heavy and repetitive nature of the work.
He gave evidence that for the first two years he was placed in the park and gardens crew. The work involved mowing and weeding. He did this for the first two years of his employment. He gave evidence:
“I was able to do this work for a period of about 2 years without any particular problem and was able to do the work effectively without any incident noticing anything particular about my low back or right leg.”
He gave evidence about a significant change in his role when after two years he was moved across to the horticultural area. He describes the physical nature of the work and refers to paragraph 4 of his first statement dated which is set out above. He notes his height of six foot two inches tall and that the weeding was at ground level which involved constant bending and lifting including of tools while bent over.
I note that the evidence Mr Arnold had given about the nature of his work with the Council and the physical demands of the role, including in particular the change in the nature of the role when he moved into the horticultural section after two years, whereafter the physical demands upon his lumbar spine increased, have not in any way been traversed by Council. There is no statement or other evidence which controverts the evidence Mr Arnold has given about the heavy and repetitive nature of his duties.
Mr Arnold describes the work as rewarding but physically draining. He was able to manage for the first couple of years without any particular issue but after two/three years began to notice increasing symptoms. He gave evidence:
“...after two/three years I began to notice on coming to the end of a long day that I would have increasing aches and pains through my back. My wife and I were in the habit of going for walks after work and I got to the point where I would have to stop halfway through a walk and spend some time stretching before I could start walking again.”
He gave evidence that he persisted like this for about a year and tried to be careful with the nature of the work he was doing but eventually had to speak to his general practitioner (GP). He gave evidence:
“I persisted with this for maybe a year and trying to be carful with the nature of the work I was doing but unfortunately the symptoms started to increase and I started to speak to my GP about problems with my back and the odd issue associated with my legs.
The nature of the pain was not such that it would stop me working but as described above it was becoming increasing apparent that I had ongoing issues such that I sought out treatment from my GP.”
Mr Arnold gave evidence that he continued with this situation “through 2020 and the pandemic in 2021”.
He had given evidence in his first statement that he was determined to try and “battle through” and keep working. Ultimately the symptoms became such that he could not continue to do so and he sought treatment. He gave evidence in his statement dated 12 March 2023 that when he reported his back problems he was contacted by a representative of the Council and was essentially told that if he couldn’t nominate a specific injury then it wasn’t covered by worker’s compensation.
Mr Arnold paid for the surgery privately, he had a very good result from the surgery and returned to work on full duties after 15 weeks.
The claim for weekly compensation is for the period 10 June 2022 to 12 September 2022.
Mr Arnold gave evidence:
“I have worked with council for five years in heavy physical work essentially without restriction until I started to develop increasing problems in my low back and in particular problems mainly in my right leg but also in my left leg. It was this escalation of symptoms in my back and leg that made me seek out medical treatment.”
The evidence given by Mr Arnold in his statements is consistent with the clinical records of his treating GP Dr Ng who had provided certificate and also a report.
The workcover certificate provided by Dr Ng dated 12 November 2021 is consistent with
Mr Arnold’s evidence.
Dr Ng records the diagnosis of the work related injury/disease as follows:
“L4/5 spondylolisthesis and right sided foraminal narrowing a L4 nerve root compression.”
In relation to first consultation for injury, Dr Ng notes “2/10.20 by me but he had seen other doctors in this practice intermittently for his back pain”.
In answer to how the injury is related to work, Dr Ng records:
“he does manual work, that can be heavy; he noticed pain back that was associated with his work at the council; he saw me on 2/10/20 and a CT scan was done and this showed the spondylolisthesis and bilateral spondylosis, he was the referred to Prof Sheridan , neurosurgeon who organised a steroid injection which did not work; as he has been gradually getting worse Prof Sheridan said he was a candidate for a L4-5 lumbar laminectomy and fusion.”
In relation to any preexisting condition, Dr Ng noted:
“He had occasional back pain over the years but this got worse since working for the Council.”
As to management he recorded:
“seen Prof Sheridan
Pain management with Panadol and stretches.
Currently coping with his job but may need surgery in the future- Prof Sherdan said he was a candidate for a L4-5 lumbar laminectomy and fusion.”
Dr Ng provided a report to Mr Arnold lawyers at their request on 5 July 2022. He recounts the history and diagnosis. After noting the earlier consultations for back pain, he reports as follows:
“On 12/11/21 he saw me and I took a longer history of his work, He worked for the Campbelltown City council as an operative in horticulture. His work included weeding, mulching, tree planting and weeding. The work could be heavy. He did not remember an incident that directly caused his back or leg pain. He has seen professor Sheridan and professor Sheridan had organised steroid injections and said that if they did not work surgery was indicated. On this occasion I wrote him a workers compensation certificate. On 4/12/21 he informed me that the Campbelltown Council had denied his workers compensation claim. At that point I filled in a form for a modification of his duties at the council.
On 18/2/22 he spoke with Dr Tran and he informed Dr Tran that he would be getting surgery on his private health insurance.
When he was last seen on 17 June 2022, he had a L4/5 laminectomy and fusion on 10 June 2022. He said that there was still pain in his back from the surgery but the pain down his leg was better.
I have 4 letters form Prof Sheridan In his first letter of 30/10./20 Prof Sheridan said Bradley had a long history of back pain having worked in the building industry and had multiple crashes as a rally driver. He thought the CT scan shows the L4/5 degenerative spondylosis sand that his right leg symptoms were due to the right sided foraminal narrowing and the L4 nerve compression. In his 9/12/20 letter to me Prof Sheridan said that the bone scan showed extensive arthritis through his lower back and his sacroiliac joints. The MRI scan shows the degenerative at L4 /5 and disc bulging at multiple levels and at L4/5 on the right, there was a L4 nerve root compression . H suggested CT guided transforaminal steroid injections in his 25/2/21 letter, he said that the injections worked reasonably well. In this las letter on 22/6/21 , he said that the injections only gave short term relief and that Bradley was a candidate for a L4/5 lumbar laminectomy and fusion.
Bradley’s diagnosis is: L4-5 spondylolisthesis and a right foraminal narrowing at L4/5 and a L4 nerve root compression. His work at the Council was a substantial contributing factor to his condition. Prior to working there he only had intermittent back symptoms. He has degenerative spondylolisthesis and the work at the council accelerated the degenerative spondylolisthesis and nerve compression. The heavy nature of his work would have also aggravated/exacerbated the problems and symptoms of back and leg pain.
Treatment was the injections and the L45 laminectomy and fusion which he had on 10 June 2022. Once he recovers from the surgery he will be able to work on light duties.”

Dr Ng has provided a useful summary of some of the treating reports of Professor Sheridan who performed the surgery on 10 June 2022. Professor Sheridan does not provide an opinion on causation and in particular, does not provide an opinion on causation that attributes liability to the Council. This is not determinative of the applicant’s case. Professor Sheridan is a treating neurosurgeon. He has not provided a report to the applicant’s lawyers for workers compensation, and I note performed the surgery funded privately. All of the evidence must be weighed in the balance and a determination made on the balance of probabilities whether the applicant suffered injury in the course of or arising out of his employment with the Council such injury consisting in the aggravation, acceleration, exacerbation or deterioration of an underlying disease in Mr Arnold’s lumbar spine and whether his work for the Council was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the underlying disease.
Dr Oates was the independent medical expert (IME) qualified by the applicant’s lawyers to provide an opinion.
Dr Oates in an occupational physician. Counsel for the Council submitted that his expertise is therefore lacking compared to that of Dr Rimmer, orthopaedic surgeon, and the IME qualified on behalf of the respondent and that the opinion of Dr Rimmer should thereby be preferred.
I do not consider there is any weight to this submission, both Dr Oates and Dr Rimmer are SIRA approved medical specialists and both have the necessary expertise to provide opinions on the matters with which this dispute is concerned and their respective opinions are to be weighed in the balance with all the other evidence. Neither expert is to be preferred solely on the basis of their speciality.
Dr Oates provided three reports dated 17 May 2022, 24 January 2023 and 13 February 2023 respectively.
He took a history, conducted a physical examination, had regard to the radiological evidence.
Dr Oates opined:
“The spondylolisthesis associated with pars defects at L4 with stress fracture on the right side represents a congenital condition and therefore in the nature of a disease.
Based on the history given and the available evidence, it is my opinion that the nature and conditions of his employment is the main contributing factor to aggravation, exacerbation, and acceleration of this disease with the appearance of stress fractures at L4 pars bony defects, which were asymptomatic prior to commencing employment with the Council.”
Dr Oates provided a further report of 24 January 2023 after he is asked by the applicant’s lawyers to review clinical notes and the applicant’s statement of 27 July 2022 and he maintains his opinion that work with the Council is the main contributing factor to the aggravation of the underlying condition.
Dr Rimmer is the IME qualified on behalf of the Council. He provided a number of reports dated 6 September 2022 (x2), 15 September 2022 and 23 March 2023 (x2) respectively.
He saw Mr Arnold on 31 August 2022 and provided a report dated 6 September 2022.
Dr Rimmer records a history that lacks any detail about the nature of the work Mr Arnold performed for the Council or the significant change in the physical demands of his role after he moved into the horticultural section. He records that he is manual worker and fails to record any history about the nature of the work performed by Mr Arnold with the council.
He conducted an examination and had regard to the radiological investigation.
He diagnosed a constitutional condition not caused or aggravated by work.
He does not consider work to be a substantial or main contributor and states:
“No I do not consider that Mr Arnold employment was a substantial contributing factor. The reasons being is that he had a congenital abnormality of the lumbar spine and the probability that he would have would have been symptomatic regardless of his employment I would say is extremely high/inevitable.”
He is asked specifically about the Segway incident but makes no comment. He does consider the physical nature of rally car driving could have aggravated the condition.
In his supplementary report of 23 March 2023, Dr Rimmer reiterates that employment has not been the main or substantial contributing factor to the disease or aggravation of the disease. He again says rally car driving could have aggravated the disease. He is specifically asked about the Segway incident but doesn’t answer it. He is asked and answers:
“What impact do you consider flows from the Segway accident and/or rally car driving undertaken by the claimant over the years. Please obtain a through history in regard to both”
“On the balance of probabilities given the physical nature of rally car driving is more likely to be the cause of aggravating the congenital defect of his lumbar spine ir par defect at L4/5 with subsequent grade 1 spondylolisthesis.”
Counsel for Mr Arnold highlighted that if the physical nature of rally car driving could be considered a factor which aggravates the underlying condition, “it begs the question” why
Dr Rimmer would not take account of the heavy physical nature of Mr Arnold’s work with the Council and why that could not be seen as an aggravating factor also. Instead, Dr Rimmer appears to take no account or little account of the heavy physical nature of the duties that were being performed for Council particularly when Mr Arnold changes positions to the horticultural section. I note Mr Arnold has given detailed evidence about the heavy and repetitive nature of the tasks he was performing which is untraversed by any statement or other evidence from the Council and about which Dr Rimmer has taken no or little account.
As to the Segway incident Dr Rimmer has been asked repeatedly to address that question and is silent about it having any impact. This means there is no expert evidence that supports the Segway incident having caused injury by way of aggravation or otherwise to the lumbar spine. Mr Arnold account that he attended Campbelltown Hospital outpatients but needed no further treatment is not traversed by any other clinical evidence to the contrary. In any event, Mr Arnold was able to pass a” physical” and commence work for the Council some eight months later and engage thereafter in heavy and repetitive work for the Council over many years. Counsel for the Council’s submissions on the importance of the Segway incident to the liability question are not borne out by the evidence.
When I weigh all of the evidence in the balance I prefer for the reasons given the opinion of Dr Oates to that of Dr Rimmer.
When I weigh all of the evidence in the balance I prefer the evidence of Mr Arnold which is consistent with the evidence of the treating GP Dr Ng and the opinion of Dr Oates. I do not consider that Professor Sheridan’s, a busy treating surgeon who performed the surgery, history taken as recorded in his treating reports that Mr Arnold suffered back pain over the years of heavy work in the building industry is inconsistent with a history of heavy work for the Council impacting his back. In any event, I weigh Professor Sheridan’s treating reports in the balance with the other evidence and any failure to support the applicant on causation is not determinative of the applicant’s case. I prefer the opinion of Dr Oates supported by the opinion of Dr Ng (treating GP) and consistent with the evidence given by Mr Arnold about his onset of symptoms and the heavy nature of the work he performed for the Council which is untraversed by evidence from the Council.
When I weigh all of the evidence in the balance, I am satisfied on the balance of probabilities that Mr Arnold suffered an injury in the course of or arising out of his employment with the Council, such injury consisting in the aggravation, acceleration, exacerbation or deterioration of an underlying disease in the lumbar spine, with his employment with the Council being the main contributing factor to the aggravation, acceleration, exacerbation or deterioration.
It was agreed that in the event this was my finding that the deemed date of injury is
12 November 2021.
It was agreed that in the event this was my finding, awards of weekly compensation would flow as agreed as follows:
(a)    the respondent pay the applicant weekly compensation from 10 June 2022 to
9 September 2022 at the rate of $1,320.50 per week;
(b)    the respondent pay the applicant weekly compensation from 10 September 2022 to 12 September 2022 at the rate of $1,112 per week, and
(c)    the respondent to have credit for leave paid during the above periods.
It was agreed that in the event this was finding a general order for the payment of medical expenses would be made.
I will accordingly so order.

[2023] NSWPIC 394

8 August 2023