Aylott v Lite N' Easy
[2024] NSWPIC 601
•28 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Aylott v Lite N' Easy [2024] NSWPIC 601 |
| APPLICANT: | Kerry Aylott |
| RESPONDENT: | Lite N' Easy |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 28 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; whether the applicant suffered consequential condition to the lower limb as a result of an accepted lumbar spine injury; whether right hip replacement surgery was reasonably necessary; Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, and Diab v NRMA Ltd discussed and applied; Held – the applicant has suffered a consequential condition to the right lower limb (hip) resulting from her accepted lumbar spine injury; surgery was reasonably necessary as a result of injuries; respondent to pay for surgical and ancillary costs pursuant to section 60. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a workplace injury to her lumbar spine on 10 July 2018. 2. The applicant sustained a right hip condition consequential to the injury on 10 July 2018. 3. The right hip replacement surgery performed on 11 October 2023 was reasonably necessary treatment as a result of the above injury. 4. The respondent to pay the applicant’s reasonable medical, surgical, hospital and related treatment expenses associated with the right hip replacement pursuant to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Kerry Aylot (the applicant) injured her back in the course of her employment with the respondent (Lite N’ Easy) on 10 July 2018. The insurer accepted liability under the provisions found in the Workers Compensation Act (1987) (the 1987) Act including the costs of an L4/L5 and L5/S1 decompression and fusion, a revision decompression, nerve blocks and ablation procedures, the placement of a spinal cord stimulator for pain management amongst other interventions.
Then on 11 October 2023, whilst at home and moving between her lounge room and kitchen, the applicant claims her leg buckled due to persisting weakness and pins and needles from the back injury causing her to fall onto her right hip, necessitating transfer by ambulance to Campbelltown Hospital where she underwent a right total hip replacement.
The insurer was notified of the above events. Following review, it denied liability on the basis there was insufficient medical evidence to support that any right leg weakness (which was said to be responsible for the fall and subsequent hip fracture) arose from her back condition. Specifically it stated:
“…we are not liable for any knee injury/weakness nor has there been any knee weakening reported to have been caused by your lumbar spine, and investigative scans and reports on file to date have indicated no evidence of pathology in the lower limb prior to your fall on 11/10/2023…
When assessing the medical information on file, you have not discharged the onus of proof to substantiate your claimed right hip injury, and that you sustained knee weakness causing your fall which required emergency hospital attendance, and hip replacement surgery. There has been no evidence or clinical reasoning provided as to how the right hip injury relates to your original lumbar spine injury of 10 July 2018.”[1]
[1] Section 78 Notice dated 30 November 2023 – Folios 39 to 44 of the Application to Resolve a Dispute.
Internal review was unsuccessful resulting in an application to the Personal Injury Commission (the Commission). The matter underwent the usual case management pathway, proceeding to Arbitration where the parties requested I determine whether the applicant suffered a consequential condition to the right lower limb (arising from her accepted back injury) and further whether the treatment expenses claimed were reasonably necessary with reference to the 1987 Act.
The applicant was represented by Mr Necovksi of counsel instructed by Ms Brown. The respondent was represented by Mr Morgan of counsel instructed by Ms Wrigley. An insurer representative was present.
In the course of decision making, I considered the submissions of counsel, the documents annexed to the Application to the Resolve A Dispute (ARD), the Reply and Applications to Admit Late Documents (AALD) filed by both the applicant and respondent on 2 and 3 October 2024 respectively. No oral evidence was called.
Applicant’s evidence
In her first statement dated 20 August 2021,[2] (two years prior to the alleged consequential condition to the right lower limb) the applicant describes in detail the duties of her role as a cleaner and how she sustained injury on 10 July 2018 when she experienced pain in her lower back and both lower limbs, the left being worse at the time. The statement confirms she underwent two level posterior lumbar interbody fusion surgery at the L4/5 and L5/S1 on 1 August 2019, revision L4 to S1 decompression, fusion and rhizolyis surgery on 6 March 2020, the insertion of a spinal stimulator, pain management and psychological interventions.
[2] Folios 10 to 33 of the ARD.
Relevantly, the statement reinforces the existence of pain in the back, buttocks and both thighs interfering in standing and bending tolerances. As early as May 2019 pain in both lower limbs was documented, worse on walking with “shooting pain extending down both of my legs”.[3] Following the revision surgery, pain continued with numbness, burning and itching sensation from the lower back extending into the right knee and foot impacting on sleep. The applicant states “I continued to struggle with sciatica in my right leg”.[4]
[3] Folio 33 of the ARD.
[4] Paragraph 193 of folio 33 of the ARD.
In her statement dated 30 May 2024[5] (eight months after the right hip injury), the applicant confirms she reported her back and leg pain to her treating doctors on multiple occasions, specifically that she lacked confidence when walking as her legs felt like they were “buckling and the right kneecap going backwards” which ultimately resulted in the recommendation and insertion of a spinal implant.
[5] Folios 1 to 9 of the ARD.
In addition, the applicant now uses a mobility walker for ambulation as “I am petrified I will fall again… I rarely leave my house due to my mobility issues”. The mental health impacts of the injury, alteration to activities of daily living and general frustration with the ‘process’ and loss of independence are documented.
Medical evidence prior to 11 October 2023 (right hip injury)
Dr Peter Khong, neurosurgeon in his report dated 1 February 2019, documented a seven month history of low back and bilateral posterior thigh pain with pain radiating down from the buttocks and posterior thighs, stopping at the knees.[6] On 14 April 2019[7] he recorded severe constant daily back pain which often reached 10/10 with an inability to stand straight or sit for long periods. An L4/5 posterior lumbar interbody fusion was recommended.
[6] Folio 647 of the ARD.
[7] Folio 188 of the ARD.
On 4 September 2019, in a report to Sun Super,[8] Dr Lim nominated symptoms as ongoing “lower back pain, right leg numbness, itching, burning (knee to foot)…”
[8] Folio 635 of the ARD.
Dr Singh in his report dated 19 November 2019[9] confirmed the goal of surgery was to improve back and leg pain. At review on 20 September 2019, examination demonstrated decreased sensation in the right L3/4 distributions, quadriceps power weakness on the right side and “she described buckling of the knee especially when going up and down stairs”.[10] On 5 December 2019,[11] revision surgery was recommended as whilst imaging showed the fixation was stable, she had ongoing right leg radicular symptoms with significant disability. Following assessment on 15 April 2020[12] he recorded ongoing symptoms of neuropathic numbness in the leg following the second revision surgical procedure and recommended medication for neuropathic symptoms.
[9] Folio 574 of the ARD.
[10] Folio 627 of the ARD.
[11] Folio 607 of the ARD.
[12] Folio 552 of the ARD.
Multiple Certificates of Capacity issued prior to the hip fracture confirm the diagnosis of lumbar spondylolisthesis and radiculopathy.[13]
[13] Folios 261 to 323 of the ARD.
Dr Brian Hsu, spine surgeon on 6 July 2020[14] reported the lumbar fusion was successful however noted neuropathic leg pain.
[14] Folio 187 of the ARD.
On 14 September 2020, Dr Deshpande, pain specialist[15] confirmed the work-related injury in July 2018 whilst lifting and carrying a heavy load, the lumbar spinal fusion in August 2019, the revision fusion and rhizolysis in March 2020 and persistent refractory right leg pain. Specifically he reports (unedited)
“Kerry has reported that her first surgery was in August 2019 where she underwent
L4-S1 posterior spinal compression and fusion surgery.This surgery was complicated with weakness and numbness to her right leg with persistent pain. She was thoroughly investigated and in due course underwent a lumbar spinal decompression fusion revision surgery with rhizolysis in March 2020….
Current issues
…Persistent leg pain. She reports that there is a numbness to the anterior aspect of her thigh which radiates to the front of the right ankle and foot.
She also reports some buckling of foot whilst walking at times which makes her aware and afraid walking as a risk of falling…
My provisional diagnosis is work related lumbar spinal injury with subsequent fusion procedure. She has persistent lumbar axial back pain along with right sacroiliac dysfunction right leg refractory neuropathic pain…”
[15] Folio 451 of the ARD.
Dr Mo, general practitioner, following assessment on 13 February 2020,[16] 21 May 2020,[17] 1 July 2021,[18] 29 July 2021,[19] 26 August 2021,[20] 23 September 2021[21] and 21 October 2021[22] recorded ongoing low back pain and right lower limb pain with associated numbness.
[16] Folio 973 of the ARD.
[17] Folio 966 of the ARD.
[18] Folio 937 of the ARD.
[19] Folio 934 of the ARD.
[20] Folio 932 of the ARD.
[21] Folio 930 of the ARD.
[22] Folio 928 of the ARD.
Dr Vestol, general practitioner, following assessment on 8 November 2022,[23] reported ongoing back pain with pain radiating down the right leg into the foot.
[23] Folio 911 of the ARD.
On 9 January 2023,[24] the applicant informed her psychologist Luci Baldwin, that she had restriction with standing and walking, walking was unstable due to loss of sensation and knee “buckling” and falling and limping. She was unable to bend and needed assistance with putting shoes on.
[24] Folio 909 of the ARD.
On 17 January 2023,[25] Dr Vestol, recorded ongoing back pain, hard to stand up straight due to pain.
[25] Folio 908 of the ARD.
On 6 June 2023,[26] Matt Meoli, physiotherapist, reported persistent low back pain and radicular symptoms in the right leg.
[26] Folio 898 of the ARD.
Dr Lal, general practitioner following consultation on 1 August 2023[27] reported “ongoing sharp pains in the anterior right leg and feels right knee buckling more often over the last two weeks. No recent falls and back pain continues”.
[27] Folio 893 of the ARD.
Dr Eric Lim, general practitioner in his reports dated 21 August 2021[28] and 17 March 2022[29] reported back pain and hip pain radiating into the knee with ‘suboptimal’ balance and inability to squat.
[28] Folio 369 of the ARD.
[29] Folio 331 of the ARD.
Dr Sushama Deshpande, interventional pain specialist reported on 3 May 2022[30] documenting right leg pain and cramps had improved following the trial of a neurostimulator implant about a week ago, recommending permanent implant. The trial was funded by the insurer.[31]
[30] Folio 125 of the ARD.
[31] Folio 128 of the ARD.
Mr Kenneth Abalo, occupational therapist and rehabilitation consultant reported on 3 August 2023.[32] Symptoms at that time were recorded as lower back pain, aching in nature worsened with prolonged postures, neuropathic pain symptoms from the right side of the lower back travelling to the right foot, numbness and altered sensation in the right thigh and numbness from the right knee down to the toes, altered sensation in the right lower leg often causing the right knee to buckle, thoracic spine symptoms and cramping of the right foot, particularly in the evening.
[32] Folios 96 to 111 of the ARD.
Medical evidence post 11 October 2023 (right hip injury)
Progress Notes, Campbelltown Hospital dated 11 October 2023 recorded “fall at home injury left hip unable to walk – felt leg giving way prior to fall. This happens to her occasionally after spinal surgery but has not caused a fall like this”.[33]
[33] Folio 155 of the AALD filed 3 October 2024.
At routine review on 18 November 2023, Dr Deshpande[34] recorded that her right leg buckled and resulted in a fracture of the neck of the right femur. On 9 March 2024, he recorded “right leg pain is worsening since the stimulator has been off – recommendation was to replace the IPG/Battery neuro stimulator implant and prescribe Panadeine Forte for pain flare”.[35]
[34] Folio 154 of the ARD.
[35] Folio 1,029 of the ARD.
Dr David Lieu, consultant orthopaedic surgeon (qualified by the applicant) in his report dated 22 February 2024[36] records a consistent clinical history. He concluded the persisting right lower limb radicular pain and myelopathy led to the fall and hip fracture. As regards treatment he considered the hip replacement was ‘gold standard for a neck of femur fracture as hemiarthroplasty or internal fixation were not indicated due to the fracture pattern and age.[37] He concluded prognosis was guarded and she will most likely continue with chronic pain and permanent weakness in her right lower limb.
[36] Folio 64 of the ARD.
[37] Folio 67 of the ARD.
Submissions
The following submissions were made on behalf of the applicant;
(a) there is a clear causal connection between the lumbar spine injury and the right leg giving way resulting in the consequential right hip injury/fracture;
(b) the applicant has discharged her onus of proof with regards to causation and treatment was reasonably necessary;
(c) the chain of causation is “crystal clear” as the vast body of evidence supports that the applicant suffered the right hip injury on account of weakness in the lower limb arising from her back injury and spinal procedures;
(d) there is no gap in the evidence, that is the applicant has complained of right lower limb symptoms since the original back injury, which have progressed and whilst originally confined to the thigh, have, despite multiple interventions travelled into the knee, resulting in complaints of buckling and pain spread into the ankle, and
(e) there are no other causes identified to account for her presentation.
The following submissions were made on behalf of the respondent:
(a) there is a total lack of contemporaneous reporting not only in relation to issues in the lower limb at the time of fall but more specifically any treatment directed to the treatment of the lower limb symptoms over the years;
(b) the workers most recent statement is largely self serving and cannot be relied upon;
(c) the onus is on the worker to satisfy to the reasonable standard the facts and circumstances concerning the development of the consequential condition to the right hip and she has failed to do so;
(d) there is a “glaring absence” of any reporting from treating medical practitioners, surgeons or pain specialists identifying the radiating pain or the cause of such pain and its connection to the lumbar spine;
(e) the mere fact that there is a complaint of pain in the right leg does not constitute evidence that there is a physiological disruption to the function of the right leg occasioned by the workplace injury;
(f) the applicant relies on Dr Lim who states without any real explanation that the leg symptoms are related to the back symptoms but offers no plausible reasoning, rather an ipse dixit;
(g) that in the absence of a medical explanation for the weakness in the right leg and its connection to the back injury, that it would be dangerous to accept the applicant’s theory on who she came to injure her hip, and
(h) the respondent admits that it does not have a medical case but does accept the hip replacement was done under emergency circumstances.
APPLICATION OF THE LAW, FINDINGS AND REASONS
In this case, there is no dispute the applicant sustained injury to her back in the course of her employment on 10 July 2018. Liability was accepted, with the insurer funding two spinal surgical procedures and the provision of a spinal stimulator for pain relief. The key issue for determination here is whether the applicant sustained a consequential condition to her right lower limb as a result of her accepted lumbar spine condition and if so whether the costs associated with the hip replacement and ancillary expenses are reasonably necessary.
The 1987 Act does not define a consequential condition. Authorities establish the following key principles (which by no means are exhaustive):
(a) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[38] (Kumar);
(b) each case must be determined on its own facts;
(c) it is unnecessary for a worker alleging such a condition to establish that it is an “injury” (including “injury” based on the “disease” provisions) within the meaning of s 4 of the 1987 Act[39] (Moon);
(d) in order to establish a condition, there is to be a “common sense evaluation” of the causal chain, determined on the basis of the evidence, including expert opinions[40] (Kooragang);
(e) a finding of a consequential condition does not require the identification of pathology[41] (Kumar);
(f) a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury;
(g) reliable and contemporaneous medical evidence plays a significant role in establishing causation;
(h) there must be an unbroken chain of causation from the injury to the development of the consequential condition, and
(i) the absence of treatment is not fatal to the applicant’s claim of the presence of a consequential condition[42] (Baker).
[38] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[39] Moon v Conmah Pty Limited[2009] NSWWCCPD 134 (Moon).
[40] Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452 (Kooragang).
[41] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[42] As DP Roche noted in Baker v Southern Metropolitan Cemeteries Trust[2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour[2011] NSWCA 199 at [86]).
Here the respondent’s primary argument is that the applicant’s statements are self-serving and further there is no real evidence to support that there was a physiological disruption to the function of the lower limb on account of the accepted back injury.
Turning first to the issue of the applicant’s statement, I do not find them to be self-serving when read collectively. The first statement was made two years prior to the fall resulting in the need for hip replacement and exhaustively recounts problems of pain, weakness and instability in the right lower limb. The medical evidence summarised in paragraphs 11 to 25 above demonstrates that in 2019, 2020, 2021, 2022 and up to fall in 2023 that the applicant had constant complaints of weakness, fear of instability, a complaint of buckling of the right knee which were attributed by Dr Khong, Dr Desphande, Dr Singh and Dr Hsu as being attributable to the lumbar spine pathology. This is consistent with her statements. I therefore find the applicant to be credible. That then leads to the next argument, that is, the lack of medical verification. I accept that the report of Dr Lim is thin on the ground with regards to history, however Dr Desphande, pain specialist commented as early as 2020 about the issue of “buckling” of the right limb (paragraph 16 above refers) and these complaints have been consistently documented by other specialists, general practitioners and rehabilitation providers from the time of the original injury up until the fall in October 2023. Further, the insurer was put on notice that revision surgery was required due to ongoing complaints of pain in the lower limbs and when that treatment failed to alleviate symptoms, a spinal stimulator was considered reasonably necessary (for which it accepted liability). I find that there is ample evidence to support a physiological disruption to the function of the lower limb arising out of the back injury and that there is no break in the chain of causation.
The applicant carries the onus of establishing on the balance of probabilities that the consequential lower limb condition resulted from the workplace injury to the back. The content of the standard of proof has been the subject of much judicial discussion and consideration but, for present purposes, it is sufficient to say I must be satisfied to a sense of actual persuasion or affirmative satisfaction that such claims have been made out (Nguyen).[43] It is not necessary that I be satisfied to a degree of medical or scientific certainty but, on the other hand, it will not be sufficient if I am merely satisfied that it is possible that the condition is related to employment.
[43] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
Overall, I find that the applicant has established on the balance of probabilities, and with a degree of actual persuasion and affirmative satisfaction that she has suffered the consequential condition to the right lower limb (hip) as a result from her accepted back injury. I make this finding on the basis of consistent reporting of lower limb symptoms arising from the lumbar spinal pathology by both the applicant, her treating specialists and her general practitioners. I have carefully reviewed the large volume of medical evidence (in excess of 1,000 folios) and am satisfied and find there have been no gaps in the reporting of complaints. I am also satisfied that there is no other established cause for the lower limb symptoms apart from the lumbar spinal pathology, for which liability has been accepted.
For these reasons, I find that the applicant has suffered a consequential condition to the right lower limb (hip) as a result of her accepted lumbar spine injury on 10 July 2018.
I next need to consider whether the treatment claimed in the ARD is reasonably necessary. The applicant has claimed the cost of the hip replacement, ambulance transfer and the hire of a mobility walker and high chair as “reasonably necessary” medical expenses associated with the consequential condition. She also claims physiotherapy and specialist treatment.
Section 60 of the 1987 Act states that if, as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the workers employer is liable to pay for the cost of that treatment or service.
The authorities on the interpretation of this section are overwhelming although I have identified three key principles relating to the assessment of such claims summarised as follows (but again these are not exhaustive);
(a) firstly, the applicant must establish on the balance of probabilities the treatment claimed, more probably than not is “reasonably necessary” (Nguyen);[44]
[44] Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246 and Yucel v AAES Pty Ltd t/as Roadtrack [2015] NSWWCCPD 51.
(b) secondly, whether treatment is “reasonably necessary”[45] (Rose) is a question of fact depending upon the circumstances and evidence in each case and will often require the weighing up of competing considerations such as:
[45] Rose v Health Commission (NSW) [1986] 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233 [39]
(a)“is it better that the worker have the treatment or not?” (in the sense that there are reasonable prospects that the worker’s situation will be improved or ameliorated by the treatment (Diab),[46] and
[46] Roche DP in Diab v NRMA Ltd [2014] NSWWCCPD 72.
(b)the appropriateness of the particular treatment, its actual or potential effectiveness, the availability of alternative treatments and their potential effectiveness, the costs of the treatment (in particular relative to the cost of alternative treatments) and the acceptance by medical experts of the treatment as being appropriate and likely to be effective;
(c) thirdly, the need for treatment must be “the result of an injury”. The authorities establish assessment requires:
(i)a common sense evaluation of the causal chain the treatment is reasonably necessary “as a result of the injury” (Kooragang);[47]
(ii)the expression “results of”, is a question of fact, and it is unnecessary to establish the work injury was the only, or even a substantial, contributing factor to the need for medical treatment and it is sufficient to establish only that the injury “materially contributed” to that need (Murphy),[48] and
(iii)the worker establish:
“the injury was a material cause of the need for the proposed treatment . . . , even if other factors were also present that may have contributed to that need (the fundamental principle that employers must take their workers as they find them”
and that “a condition can have multiple causes”, these concepts making clear that the presence of a pre-existing condition, but for which treatment might otherwise not have been necessary, will not preclude a finding that the need for treatment results from the injury in question.) (Schokman.)[49]
[47] See Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452.
[48] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
[49] Per Roche DP in Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [54] (Schokman).
The respondent admits it does not have a medical case and acknowledges the hip replacement was undertaken in emergency circumstances. Dr Lieu considered the hip replacement procedure was the only real treatment option for the fracture as hemiarthroplasty or internal fixation were ruled out due to the fracture pattern identified on investigations and age. The discharge note of the Campbelltown Hospital confirms that the orthopaedic medical team determined that hip replacement was necessary on an emergency basis as a result of the right neck of femur fracture.[50]
[50] Folio 82 of the ARD.
I have already found that the applicant has suffered a consequential condition to the right lower limb arising out of her accepted lumbar spine injury. I further find, on the evidence before me that the injury did materially contribute to the need for total hip replacement and the medical evidence reveals that this was the only option available given the nature of the fracture and the applicant’s age. I further find that in the absence of any alternative treatment or evidence by the respondent to dispute the treatment on medical grounds, that it meets the definition of ‘reasonably necessary’ summarised above.
For the reasons above, I find the applicant has established on the balance of probabilities, (Nguyen) that the injury materially contributed to the need for the treatment with reference to the common sense test of causation (Kooragang) and the hip replacement surgery and the ancillary costs claimed are reasonably necessary (Rose) and (Diab) as a result of the injury.
SUMMARY
Accordingly I make the findings and orders set out on page 1 of the Certificate of Determination.
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