Bates v Filter Cair Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bates v Filter Cair Pty Limited [2023] NSWPIC 95
APPLICANT:	Errol Bates
RESPONDENT:	Filter Cair Pty Ltd
Member:	Jane Peacock
DATE OF DECISION:	9 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; allegation of cervical spine injury at work for which the applicant sought a determination in respect of proposed cervical spine surgery; allegation of injury consisting in the heavy and repetitive nature and conditions of work causing an aggravation, acceleration, exacerbation or deterioration of an underlying disease to which employment alleged to have been the main contributing factor; undisputed that the bilateral upper extremities injured; no contemporaneous reporting of neck injury and absence of contemporaneous complaints of neck pain in medical records; Held – all of the evidence weighed in the balance and found that the applicant had suffered an injury to the cervical spine by way of an aggravation, acceleration, exacerbation or deterioration of an underlying disease to which employment was the main contributing factor; further held that the respondent was the last relevant employer liable to pay compensation; further held that the proposed surgery was not reasonably necessary in the absence of any conservative treatment and accordingly there was an award for the respondent in respect of the proposed surgery under section 60.
determinations made:	1. Award for the respondent under s 60 of the Workers Compensation Act 1987 in respect of the surgery proposed by Dr Spitaller in the form of a C5/6 discectomy and fusion.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), Mr Errol Bates (Mr Bates) seeks a determination in respect of surgery proposed to his cervical spine as a result of injury alleged to his cervical spine deemed to have occurred on 9 January 2019 in the course of or arising out of his work as a labourer at a power station.
The respondent is Filter Cair Pty Ltd (Filter Cair). Filter Cair was insured for the purposes of workers compensation.
Filter Cair denied liability for the claim.

ISSUES IN DISPUTE

There is no dispute that Mr Bates suffered an injury to his upper extremities deemed to have occurred at work on 9 January 2019. He came to surgery on both his upper extremities as a result of the work injury which have been paid for by the insurer. It is accepted that the cause of injury to his upper extremities was the heavy and repetitive nature and conditions of his work as a labourer at the power station.
Mr Bates alleges he also injured his cervical spine as a result of the heavy and repetitive nature and conditions of his work as a labourer at the power station. As it is accepted
Mr Bates had a pre-existing diseases in the cervical spine, the allegation of injury is one of aggravation of disease, that is the heavy nature and conditions of his employment with Filter Cair aggravated his underlying disease in the cervical spine and his employment was the main contributing factor to the aggravation of the disease. He seeks to have the surgery on his cervical spine as proposed by his treating neurosurgeon Dr Spittaller in the form of a C5/6 discectomy and fusion.
Filter Cair disputes the allegation of injury to the cervical spine.
Furthermore, Filter Cair says that Mr Bates was engaged in subsequent employment as a removalist which was also heavy and therefore that Filter Cair is not the last employer who employed Mr Bates in employment which was the substantial contributing factor to the aggravation of the disease in the cervical spine.
In the event that liability for injury is determined in Mr Bates favour, Filter Cair also disputes that the proposed surgery is reasonably necessary as a result of the injury alleged deemed to have occurred on 9 January 2019.
I note that it appears to be common ground that in the event of any finding of injury, accepted deemed date of injury is 9 January 2019 and no determination has been sought by the parties as to the date of injury.

PROCEDURE BEFORE THE PERSONAL 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.
The matter was first listed for conciliation/arbitration on 9 November 2022 and it was adjourned with the approval of the Head of the Division to 8 December 2022.
The matter proceeded to arbitration on 8 December 2022.
Mr Bates was cross-examined with leave and by consent on 8 December 2022. Directions were made about the filing of written submissions as follows:
“A conciliation/arbitration was held on 8 December 2022 in which the Commission directed a timetable for written submissions to be filed and served by the parties as follows:
1. The applicant’s by 4pm 22 December 2022.
2. The respondent’s by 4pm 16 January 2023.
The applicant’s in reply by 4pm 24 January 2023.”
Counsel for Filter Cair sought an extension of time to file written submissions which was consented to and granted and the following timetable was directed:
“On the application by the respondent and with the consent of the applicant, the following directions are now made extending time for compliance as follows:
1. Extend time for the respondent’s submissions from 16 January 2023 to 4pm 23 January 2023.
2. Extend time for compliance for the applicant’s submissions in reply from 24 January 2023 to 31 January 2023.”
Despite having had the opportunity to do so, counsel for Mr Bates did not file any submissions in reply.

EVIDENCE

Documentary evidence

The following documents were admitted into evidence before the Personal Injury Commission (the Commission) by consent and considered in making this determination:
For Mr Bates:
(a)    Application and attached documents.
For Filter Cair:
(a)    Reply and attached documents, and
(b)    late documents filed with an Application to Admit Late Documents dated
28 September 2022.

Oral evidence

Mr Bates did not seek leave to adduce oral evidence.
Counsel for Filter Cair sought and was granted leave to cross-examine Mr Bates.

FINDINGS AND REASONS

Mr Bates seeks a determination in respect of surgery proposed by Dr Spitaller as a result of injury alleged to his cervical spine deemed to have occurred on 19 February 2019.
There is no dispute that Mr Bates suffered injury to his bilateral upper extremities deemed to have occurred on 19 February 2019.
The injury to Mr Bates’ bilateral upper extremities resulted in surgeries, being a right cubital tunnel release in August 2019 and a left cubital tunnel release in November 2019, performed by Dr Thorvaldson and which were paid for by the insurer.
The dispute arises because Mr Bates alleges that he also hurt his cervical spine as a result of the heavy and repetitive nature and conditions of his work as a labourer for Filter Cair which has aggravated an underlying disease in his cervical spine and to which work with Filter Cair has been the main contributing factor to the aggravation. This allegation of cervical spine injury is disputed by Filter Cair.
The dispute arises in part because the injury to the neck was not reported at the time
Mr Bates left work (February 2019) and there is no clinical record of any contemporaneous reporting of complaints about the neck until a report of neck pain in March 2020 (over 12 months after he left Filter Cair) followed by a report made to Dr Thorvaldson, his treating hand surgeon, on 6 May 2020, some 15 months after Mr Bates left Filter Cair. Mr Bates said he “may” have mentioned his neck pain to his doctors prior to this but he was more preoccupied with the persisting and progressive problems in his hands and arms to which he came to surgery in August 2019 (right cubital tunnel release) and November 2019 (left cubital tunnel release). The surgeries did not relieve all of Mr Bates’ symptoms and his hand surgeon Dr Thorvaldson requested an MRI of the cervical spine which was undertaken on
13 May 2020 and revealed pathology in the cervical spine (a disc budge at C5/6) and
Mr Bates was referred by his general practitioner (GP) to Dr Spitaller, neurosurgeon, who has recommended surgery in the form of a C5/6 discectomy and fusion.
Filter Cair also disputes that it was the last employer who employed Mr Bates in employment which was the substantial contributing factor to the aggravation of the disease in the cervical spine because Filter Cair alleges that Mr Bates worked as a removalist which involved heavy lifting after he left his employment with Filter Cair. Mr Bates disputes that he worked as a removalist lifting heavy furniture but admits he worked as a type of “broker” or “middleman” for removalist jobs and that he did not perform any lifting or moving of furniture because he was incapable of doing so by reason of his work injury with Filter Cair and other health issues. Mr Bates was cross-examined in respect of his evidence about this issue.
Mr Bates seeks an order in respect of surgery to the cervical spine proposed by
Dr Spitaller in the form of a C5/6 discectomy and fusion.
Filter Cair disputes that the proposed surgery is reasonably necessary as a result of any cervical injury found deemed to have occurred in their employ on 9 January 2019.
The dispute must be determined on the evidence and in accordance with the law.
I must decide on the balance of probabilities whether Mr Bates suffered injury to his cervical spine deemed to have occurred on 9 January 2019. It is accepted that Mr Bates had pre-existing disease in his cervical spine. Therefore, I must determine on the balance of probabilities whether Mr Bates suffered an aggravation of an underlying disease in his cervical spine to which his employment with Filter Cair was the main contributing factor to the aggravation of the underlying disease.
I must also decide in the balance of probabilities whether Filter Cair was the last employer who employed Mr Bates in employment which was the substantial contributing factor to the aggravation of the disease in the cervical spine.
In the event I decide that these liability questions are determined in Mr Bates favour,
I would then have to determine, on the balance of probabilities, whether the proposed surgery sought by Mr Bates is reasonably necessary as a result of the injury.
The applicable law is to be found in ss 4, 9, 9A, 16 and 60 of the Workers Compensation Act 1987 (the 1987 Act).
Section 4 of the 1987 provides the definition of 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.”
Sections 9 and 9A of the 1987 Act provide as follows:
“9 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.
9A 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.”
Section 16 (1) of the 1987 Act provides as follows:
“16 Aggravation etc of diseases—employer liable, date of injury etc
(cf former ss 7 (4A), (5), 16 (1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
Section 60 (1) of the 1987 Act provides as follows:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that -
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
It is well settled that independent corroboration from contemporaneous medical records is not necessary for the matter to be determined in the worker’s favour. However, each case will turn on its own facts. In each case, all of the evidence must be weighed carefully in the balance. In this case all of the evidence must be weighed in the balance and a determination made on the balance of probabilities as to whether Mr Bates suffered injury to his cervical spine deemed to have occurred on 9 January 2019 in the course of or arising out of his employment with Filter Cair, such injury consisting in the aggravation of a disease in the cervical spine, to which employment with Filter Cair was the main contributing factor to the aggravation of the disease.
Turning now to a careful examination of the evidence.
Mr Bates gave evidence in two statements dated 18 February 2022 and 1 August 2022 respectively. He was cross-examined. The cross-examination was focused on Mr Bates’ evidence about the nature of his duties in subsequent employment which Filter Cair alleged was as a removalist involving heavy lifting and Mr Bates says was as a type of “middleman” in the removalist industry which did not involve him in any physical work.
Mr Bates gave evidence in his statement dated 18 February 2022.
He gave evidence that prior to the subject injury he “did not suffer from any physical injuries that had an ongoing impact on my capacity to work”.
He says he “previously experienced some neck pain for which I had acupuncture, however, this did not prevent me from performing my full work duties in a full time capacity”.
He says:
“acknowledging the above, at the time of my subject injury, I considered myself to be healthy, fit and highly capable at handling the physical demands of my employment, I was able to wholly engage with activities of daily living without compromise and seldom took time off work.”
Mr Bates gave evidence that he commenced work with Filter Cair in February 2018 as a labourer working 38 hours a week at the power station at Bayswater. In his statement dated 1 August 2022, Mr Bates gave evidence that he obtained this employment with the assistance of an employment agency associated with Centrelink.
He gave evidence that the work was heavy and repetitive and involved repetitive overhead activities as follows:
“within my work as a labourer, I was required to do repetitive overhead activities. Specifically I was required to change the filter bags used within the power station, these canvas bags were two stories tall and were suspended in a vertical position. I would have to change the canvas bags by suing a sledgehammer above my head to release the steel pins to bring down the filter bags. The sledgehammer would be extremely heavy and featured steel hitting steel, This I would experience strong vibrations throughout my arms and neck. Late in August 2019 sledgehammers were banned due to employee injuries, however I had already been using them for around a year. Therefore I was constantly doing overhead activities at work, which would place substantial stress and pressure on my neck and arms.
Additionally I would have to place ongoing pressure on my neck and arms when undoing the bolts and buts to release the filter bags. To do this I would use a rattle gun which was a small power tool that I would also have to hold above my head. Furthermore as the hand tool would vibrate I would have to make sure that I was placing strong force on the tool to ensure that I did nit make any mistakes. Once the bags were released, I would them have to use a large metal rod to heave the bags up. This was extremely physically straining as the canvas bags would be filled with heavy solidified ash.”
There is no evidence from Filter Cair that controverts the evidence of Mr Bates about the heavy nature of the work which required repetitive overhead lifting of vibrating tools such as sledgehammers and rattle guns. There is no evidence that controverts his evidence that the use of sledgehammers was subsequently prohibited due to injuries.
Mr Bates gave evidence about what occurred on 19 February 2019 as follows:
“On 19 February 2019 I experienced significant numbness in both my hands. I was also experiencing pain in my neck, however the pain in my hands was more severe and it was at the forefront on my mind. The symptoms were so severe that I could hardly grip my work tools let alone do the work I was required to complete. As a result I informed one of my managers Sue Powell of my injury. However she just told me to get back to work. By lunchtime my pain was so severe that I was forced to go home early as I needed to gain medical treatment. I have not been able to return to work since
19 February 2019.”

There is no evidence from Ms Sue Powell or anyone else from Filter Cair to traverse what
Mr Bates says occurred on that day.
Dr Bates said he went to a GP that day who did walk in appointments. He said he was examined an “presented with hypersensitivity, weakness and numbness at my bilateral forearms. Furthermore after explaining to the general practitioner the duties of my employment, I was diagnosed with work related bilateral carpal tunnel syndrome. I understood this to be a medical condition involving the nerves in my forearm being pinched”.
I note that Mr Bates was subsequently operated on for bilateral cubital tunnel syndrome.
Mr Bates gave evidence that he went and saw his GP Dr Rogers on 5 April 2019. He explained the diagnosis he had received. He gave evidence that Dr Rogers similarly believed he had the same condition but wanted him to have nerve conduction studies to confirm the diagnosis. Mr Bates gave evidence:
“I believe I mentioned pain in my neck however I not sure if Dr Rogers made a note of it in the notes. Most of the attention was directed to my severe hand pain.”
I note that it is common ground that there is no record of a complaint of neck pain in any clinical notes until March 2020 when there is a record in the GP’s notes of a complaint for neck pain followed by a complaint on 6 May 2020 to Dr Thorvaldson. On 6 May 2020
Mr Bates’ complaint of neck pain is recorded by the treating hand surgeon Dr Thorvaldson who accordingly requests an MRI of the cervical spine. The MRI undertaken on 13 May 2020 revealed pathology in the neck (a disc bugle at C5/6).
On 18 April 2019 Mr Bates had the nerve conduction studies done. His understanding was that “the studies showed that I had nerve entrapment in my bilateral forearms which required surgical intervention”.
As a result of the findings in the nerve conductions studies, Mr Bates says he was referred to hand surgeon, Dr Thorvaldson.
Mr Bates gave evidence that he saw Dr Thorvaldson on 3 July 2019. He said he “explained to Dr Thorvaldson that I was suffering from burning numbness in both my hands”. Mr Bates was examined and told his right arm was worse than the left and that he would need cubital release surgery on both but the right would be done first.
On 18 August 2019 Mr Bates underwent right cubital tunnel release surgery performed by
Dr Thorvaldson. He gave evidence about persisting symptoms following surgery as follows:
“however, following the procedure I continued to experience ongoing numbness and pins and needles in my right forearm and hand. However as time went on, I experienced a slight improvement to the pain in my right forearm.”
Following surgery Mr Bates had physiotherapy with Ms Leonie Rogers and despite this he experienced a persistence of symptoms as follows:
“throughout our sessions, Leonie treated me with gentle exercises, stretches and massages. Leonie tried to increase the strength and range of movement in my right hand and arm. I found the treatment to be helpful, however I continued to experience ongoing pain and numbness to my bilateral elbows, forearms and arms.”
Mr Bates gave evidence that he saw Dr Thorvaldson again on 8 October 2019 where he explained the persistence of symptoms including altered sensation in his right hand fingers. He says Dr Thorvaldson thought he was having a slow recovery but would continue to improve. Dr Thorvaldson recommended surgery to the left cubital tunnel release surgery because of the symptoms in the left arm and hand.
On 12 November 2019 Dr Thorvaldson performed a left cubital tunnel release. Mr Bates said he still had symptoms following surgery including the same burning pain and numbness in his left hand. He continued to have physiotherapy with Ms Rogers.
On 6 May 2020 Mr Bates returned to see Dr Thorvaldson. He says:
“I explained to Dr T Thorvaldson that I continued to experience numbness and tingling in my fingers that would radiate up my arms and into my shoulder and neck. Furthermore the pain in my neck had also become increasingly worse and I struggled to turn my head without my neck going into spasm. Due to these symptoms,
Dr Thorvaldson then referred me to have an MRI taken to my neck.”
On 13 May 2020 Mr Bates had an MRI at the request of Dr Thorvaldson.
The MRI revealed the presence of a disc bulge at C5/6 level. Mr Bates said he was experiencing symptoms of “stiffness, tenderness and pain in my neck”.
As a result of the findings on the MRI, Mr Bates was subsequently referred by his GP to
Dr Spitaller in respect of his neck complaints.
On 1 June 2020 Dr Akram added neck and shoulders to the certificate of capacity. Mr Bates stated:
“On 1 June 2020 Dr Omar Nawaz Akram from Brook medical Centre added my neck and shoulders to my certificate of capacity as he believed they are work related injuries but had been overlooked. I believe my neck and shoulders were overlooked because up until that time my bilateral cubital injuries were the centre of all discussion and attention and were at the forefront of my mid due to the severe pain I was experiencing. Once I had my surgeries on the left and right side (on 19 September 2019 and 12 November 2019) and began to stabilise, my attention was then directed to my neck injury, I also believe that my neck injury is contributing the numbness in my hands however this was overlooked as it was assumed my bilateral cubital injuries were the cause of the numbness. Only once I completed my surgeries and continued to complain of numbness the doctors became suspicious and decided to investigate my neck.”
Mr Bates saw Dr Spitaller on 20 August 2020 and he gives evidence:
“I explained to Dr Spitaller that I was experiencing chronic pain in my neck which was completely deteriorating my quality of life and ability to function daily. Specifically I would struggle to get out of bed some mornings and simple daily tasks like making breakfast or doing the washing. In light of my recent MRI scan and due to the severity of my symptoms. Dr Spitaller recommended that I required surgery in the form of a C5/6 anterior discectomy and fusion, however my insurance company denied my right to the treatment.”
Mr Bates gave evidence that he continued to struggle with debilitating symptoms which have a deleterious effect on his activities of daily living as follows:
“throughout 2021, I have continued to suffer from ongoing pain and restrictions in my neck and bilateral arms. My neck remains incredibly stiff and can flare up in pain if I do any physical activities. I find that placing heat or ice packs on my neck can sometimes be helpful to alleviate these symptoms. Additionally I also experience numbness in my neck and suffers from increased headaches. My headaches are extremely fatiguing and I feel I am no longer the active or independent person I used to be.
Furthermore I continue to experience weak grip strength, numbness and pins and needles in my hands. My general practitioner has only cleared me to lift items that weigh up to 2kgs but despite this I struggle to even take lids off pots or hold a mug coffee. Additionally, my hands also shake and I can no longer drive, these symptoms also make it hard for me to do basis activities such a brush my teeth and use a knife and fork. Finally I still have pain in my forearms which also makes it hard for me to do any lifting, pushing or pulling movements. This y workplace injuries continue to have a huge effect on my ability to function daily.”
Mr Bates went onto give evidence:
“my current treatment for my workplace injuries involves me consulting with my GP on a monthly basis. I no longer consult with physiotherapist Leonie Rogers or neurosurgeon Dr Peter Spitaller as my insurance company has denied my right to this treatment. Finally I am continuing to rely on string pain medication.”
Mr Bates says that as a result of his injury he continues to suffer the following restrictions and disabilities:
“a.     Constant pain in my neck
b.     Restricted range of movement in neck
c.     Aggravation to pain in neck when lifting
d.     Aggravation to pain in neck when pushing and pulling
e.     Aggravation to pain in neck when bending
f.      Aggravation to pain in neck when turning head from side to side
g.     Aggravation to pain in neck when sitting for long periods of time
h.     Aggravation to pain in neck when standing for long periods of time
i.       pain in neck that radiates into both arms
j.       Burning pain and numbness in both arms and hands
k.     Restricted range of moment in both arms and hands
l.       Weakness in both arms
m.     Loss of grip strength in hands
n.     reliance of medication …”
Mr Bates gave evidence that he has experienced various psychological sequalae as a result of his workplace injuries including stress and anxiety. He gave evidence that his injury had a negative impact on his quality of life because his neck pain impedes his ability to do the social and recreational activities that he used to enjoy. He is also restricted in his self and home and garden care because of his neck pain.
Mr Bates states that he wants the surgery to improve his quality of life:
“I believe I required the c5./6 anterior discectomy and fusion as recommended by
Dr Peter Spitaller and I wish to proceed with this surgery as soon a possible.”
Mr Bates gave further evidence in his statement dated 1 August 2022.
It is not in dispute that Mr Bates suffered from a pre-existing disease in his cervical spine.
Mr Bates’ case is that he suffered an aggravation of his underling cervical disease as a result of the heavy and repetitive nature and conditions of his work with Filter Cair to which his employment was the main contributing factor to the aggravation.
Mr Bates gave evidence that prior to his injury, he had experienced brief discomfort and stiffness in his neck but it was not to the extent that it interfered with his capacity for work and was not debilitating and resolved with rest. He gave evidence that this changed when he started work with Filter Cair:
“the pain in my neck only became a concern once I started work with the respondent, performing repetitive strenuous duties…”
He started work in February 2018 and he said he was “able to work in this job without difficulty for 12 months before I began to develop symptoms and problems in my upper limbs”.
The work was heavy and repetitive. Mr Bates gave evidence about the heavy and repetitive nature of his duties and the symptoms he experienced as a result:
“Throughout the course of my duties, I was required to do a lot of overhead lifting and was required to undertake duties such as heavy tools above shoulder height for extended periods. This included manipulating sledgehammers, rattle guns and heavy filter bags for long periods of time a day, over the period of 12 months. Initially I noticed that my arms began to ache towards the end of the day after having to hold rattle guns and other tools above shoulder height throughout the day. I would often return home from work with increased pain and stiffness in my arms and hands, making it difficult for me to complete asks such as showering myself.”
Mr Bates went onto give evidence that his symptoms progressed to the point of numbness and stiffness in his arms and hands resulting in an inability to lift the work tools as follows:
“On or about 19 February 2019, when the subject injury was deemed to have occurred, I began to feel symptoms of numbness and stiffness in both my arms and hands. I felt an altered sensation in both my hands and was unable to lift many objects such as my work tools due to this, I decided to consult with my general practitioner Dr John Rogers, who referred me to hand surgeon Dr Thomas Thorvaldson.”
Mr Bates first saw Dr Thorvaldson on 3 July 2019. Dr Thorvaldson recommended bilateral cubital tunnel release surgery. Mr Bates underwent this surgery on the right side on
8 August 2019 and on the left side on 12 November 2019.
Mr Bates gave evidence that symptoms persisted following surgery as follows:
“..I continued to face persisting pain and stiffness in both my arms which was making it difficult for me to grip and lift objects. I was unable to complete everyday activities such as brushing my hair or putting my socks on. I reported these ongoing difficulties to
Dr Thorvaldson. Dr Thorvaldson advised that I undertake a further scan to my neck to determine whether my neck was the source of the pain.”
Mr Bates goes onto give evidence as follows:
“On or about 13 May 2022, I had an MRI scan taken to my neck. The MRI revealed a disc bugle in my neck. I discussed this with Dr Rogers, who referred me to orthopaedic surgeon Dr Peter Spitaller.
From 20 August 20202 onwards, I consulted with Dr Spitteler about the pain I was experiencing in my arms. I informed Dr Spitaller that I was facing significant restrictions in my daily life due to the pain in my arms and hands, such as cleaning my house, cooking and dressing myself. Dr Spittaler advised that the pain I was experiencing was due to my neck, which had been injured through the course of my employment with the respondent. On 24 September 2022 Dr Spitaller advised that I required surgery in the form of C5/6 discectomy and fusion to manage the symptoms associated with this.”
Mr Bates gave evidence that he did not have the extent of pain and restrictions prior to his employment with Filter Cair:
“I understand that the workers compensation insurer has disputed liability for this surgery. I maintain that I require this surgery due to my employment with the respondent as I didn’t have any of these issues and significant restrictions prior to that employment.”
Mr Bates said he would “like to proceed with this surgery in an attempt to restore some of my prior quality of life”.
Mr Bates went onto give evidence under a heading entitled “subsequent employment” as follows:
“Over the last twenty years I have been unemployed due to my injury, however I have worked on the odd occasion for which I received some renumeration. Due to my contacts in the removalist industry, opportunities occasionally arose where I could work as a freelance removalist middleman between clients and independent removalist businesses, I would put clients in contact with businesses and in return I would receive a small payment. This was very infrequent, approximately 2 to 3 times a year and I would received approximately $450 to $100 for this work.
This did not require me to engage in any physical work.”
I note that Mr Bates was cross-examined about this evidence and he admitted that he had received more money than he had given evidence that he had received. I also note that
Mr Bates’ bank records were in evidence which showed monies received in excess of the sums about which Mr Bates had given evidence in his statement.
Mr Bates evidence that he was able to work from the time he commended employment with Filter Cair for 12 months in employment by its nature was heavy and repetitive and involved repetitive overhead lifting of vibrating power tools (sledgehammer and rattle guns) is not traversed in any way. Filter Cair tendered no evidence to the contrary.
It is accepted that Mr Bates’ bilateral upper extremities were injured as alleged and the bilateral cubital tunnel release surgeries (August 2019 for the right and November 2019 for the left) have been paid for by the insurer.
The clinical records support Mr Bates’ complaints of persisting pain and restrictions in his hands and arms following the surgeries. I note that treating physiotherapist Ms Leonie Rogers consistently records on 16 September 2019 (after the first surgery on the right side) that Mr Bates’ “pain is still not settling down”. Dr Thorvaldson also records continuing complaints of pain despite the surgery. Dr Thorvaldson recommends proceeding with the left sided release.
Mr Bates came to two surgeries at the hands of Dr Thorvaldson, first on the right side in August 2019 and then on the left side in November 2019. Mr Bates continued to complain of persisting symptoms in his arms and hands after those surgeries. The first recorded complaint in respect of the neck to Dr Thorvaldson was on 6 May 2020.
The first recorded complaint of neck pain after ceasing work with Filter Cair was recorded in the GP’s notes in March 2020 (over 12 months after he stopped working for Filter Cair) followed by a complaint that is recorded by Dr Thorvaldson, the treating hand surgeon, on
6 May 2020. I note that this is some 15 months after Mr Bates ceased working for Filter Cair as result of the accepted injury to his bilateral upper extremities. I also note that it is in the context of Mr Bates’ complaints about persisting symptoms despite the surgeries undertaken by Dr Thorvaldson.
Dr Thorvaldsen referred Mr Bates for an MRI on the neck. Dr Thorvaldson wrote a report back to the GP dated 6 May 2020 about his consultation with Mr Bates on that day.
Under “presenting complaint and history” Dr Thorvaldson wrote:
“I previously saw Error last year when he underwent a right cubital release in August and a left cubital release in November. The right side healed well but the left side improved but did not resolve, He has not had worsening pain but unfortunately now has tingling and numbness passed the shoulder and into the neck,. His left side is more noticeable than the right but the tingling is still isolated to the small finger and ring finger. He described the scars to be well healed nut this consultation was performed by via telehealth due to the Covid-19 shutdown.”
The doctor could not conduct a physical examination but noted:
“I was unable to examine Errol in person today, as this was conducted over the telephone, He described pain radiating to the shoulder and into his neck with the left side more notable than the right and he also describes some loss of motion of his neck but this was difficult to quantify, He states that both elbow scars have healed well but there was some mild tenderness around the left side.”
He noted a “provisional diagnosis” as follows:
“It is likely that Errol is suffering from a double crush phenomenon probably coming from his cervical spine”
He ordered an MRI of the cervical spine and noted Mr Bates may need a referral to a spinal surgeon.
The MRI scan of the cervical spine was undertaken on 13 May 2020 and it revealed pathology at the C5/6 level.
On 1 June 2020, the GP Dr Akram included the neck on the Workcover certificate of capacity.
Mr Bates is referred by his GP Dr Akram to neurosurgeon Dr Spitaller in view of the findings on the MRI.
Counsel for Filter Cair submitted that as Mr Bates did not return to Dr Thorvaldson, the double crush phenomenon was never confirmed or at least there is no further report from
Dr Thorvaldson in evidence. However Mr Bates, in view of the findings on the cervical spine MRI was appropriately referred by by his GP to Dr Spitaller, neurosurgeon was entirely appropriate in view of the findings on the MRI of the cervical spine.
Mr Bates saw Dr Spitaller on 20 August 2020 and Dr Spitaller wrote back to Dr Akram on that day which is in evidence. Dr Spitaller subsequently provided a report dated 29 October 2021 to Mr Bates’ lawyers which summarised his findings.
He notes that he saw Mr Bates on 20 August 2020 and then on 24 September 2020.
He notes that he took a history of Mr Bates being a power station worker in the past but had not worked for some two years. The heavy and physical nature of the power station work was noted. The findings on the MRI scan were noted. He reported both neck and arm pain, worse with activity. Dr Spitaller records:
“The patient told me that he had long standing neck and bilateral arm pain involving the biceps and shoulder. It is worse when he is more active. He attended with an MRI scan of the cervical spine which demonstrated degenerative change at C5/6 with loss of disc height and some mild foraminal stenosis at that level.
The patient did not outline any specific injury although he emphasised that his long term work as a power station worker was very heavy and physical.”

As there were cardiac issues on the first consultation, whilst he flagged the possibility of a C5/6 anterior discectomy and fusion as potentially helping the arm and neck symptoms, Dr Spitaller did not recommend any specific treatment.
He saw him again on 24 September 2020 and given he was advised of resolution of cardiac issues, Dr Spitaller recommended the proposed surgery at the C5/6 level which he thought was likely to help his arm pain and may help his neck pain. He sought approval from the workers compensation insurer but this was declined.
Dr Spitaller considers that it is more likely Mr Bates’ cervical pathology is due to his long term heavy physical work.
Dr Spitaller is asked to comment on the declinature notice. He writes:
“It would seem the condition has been deemed not work related because it is degenerative and not related to the patient’s employment. I think it is very difficult to argue if as I understand in Mr Bates’ situation he has done heavy physical work for many years which would then likely increase his chances of developing cervical spondylosis.”
He opines that the heavy physical work is likely to have been the main contributing factor to the degenerative change and the need for surgery.
Dr Spitaller states that he has recommended the anterior C5/6 discectomy and fusion. He opines:
“I think there is evidence on his imaging that he has nerve root compression at this level and surgery I think is likely to improve his arm symptoms and may help his neck pain. Without such surgery I doubt the patient will deteriorate but he is likely to have continued arm pain.”
Dr Spitaller provided a further report dated 2 August 2022 at the request of Mr Bates’ lawyers.
He is asked about other treatment options and he answers:
“Other treatment such as physiotherapy or pain clinic treatment may help Mr Bates neck pain. At this stage he has had long standing arm pain (for arguments sake more than 3 months) and evidence of nerve root compression on MRI, then treatment such as physiotherapy or targeted steroid injections are very unlikely to lead to a long term improvement in the arm pain or brachialgia.”
Dr Spitaller’s attention is drawn to the fact that Mr Bates worked at the power station for 12 months as well as his statement detailing the heavy nature of the work and he is asked whether the heavy nature of the work was the main contributing factor to the aggravation of a long standing degenerative condition affecting Mr Bates’ neck. Dr Spitaller answered:
“The worker has a C5/6 disc bulge on MRI scanning. The disc itself is degenerate. The degeneration happens over a long period of time from heavy physical work although smoking and diabetes are contributors (I note Mr Bates is a smoker). Nevertheless a force needs to be applied to a degenerate disc for it to bulge or prolapse. From the statement you have provided it seems Mr Bates work at the power station was extremely heavy and I think it is more likely than not given the chronology of the symptoms that his work had lead to the frank disc bulge.”
He is then asked whether the aggravation has led to or made a material contribution to the need for the surgery the doctor is proposing to Mr Bates’ cervical spine and Dr Spitaller answered:
“Yes, I believe that the aggravation has led to the need for surgery both by leading to neck pain and also arm pain due to radicular or nerve root compression.”
Dr Bodel, orthopaedic specialist, is the independent medical expert (IME) qualified on behalf of Mr Bates. He has provided two reports dated 23 February 2021 and 28 June 2022 respectively.
He saw Mr Bates on 23 February 2021 and provided a report to his lawyers on the same day.
Dr Bodel has a history of work for 10 to 11 months at the powers station. He notes:
“I understand that the company he worked for is involved in the maintenance and replacement of the very large “filter bags” which are part of the power station process. There are 100 of these bags which are very long, tall and suspended in a vertical position. He spent all of his working day using rattle guns to undo thousands of nuts and bolts to release and replace these bags.”
He notes that he had a gradual onset of numbness and tingling to both arms and that
Mr Bates associates the onset to the use of rattle guns.
He records a history consistent with the other evidence that he had to stop work on
19 February 2019, that he was first diagnosed with bilateral carpal tunnel but when he saw his GP Dr Rogers nerve studies were then undertaken and bilateral cubital tunnel releases were ultimately performed by Dr Thorvaldson. The persistence of symptoms is noted and the referral to Dr Spitaller after the MRI of the neck was undertaken on 13 May 2020.
He notes Dr Spitaller has recommended C5/6 discectomy and fusion.
Dr Bodel reviewed the MRI report of which he noted:
“the report of the MRI scan of the cervical spine dated 13 May 2020 shows the minor bugle and the osteophyte formation at C5/6 but no recoded abnormality at C6/7.”
He conducted a psychical examination which has positive findings in respect of the neck as follows:
“he has tenderness in the trapezius muscle ta the base of the neck in the right side and guarding in that area. He has a reduced range of neck flexion, extension and rotation in all direction., This is most restricted on rotation to the left, he has asymmetry of neck movement.”
Dr Bodel opines:
“It is my view, that clinically the nature and conditions of work over a period of time leading up to the “date of injury” which is recorded as 19 February 2019 , has caused aggravation, acceleration, exacerbation, and deterioration to the cervical region at C5/6leavel and the neck and shoulder girdle pain may be associated with that.
The numbness and tingling into the ring and little fingers of each hand is unrelated to a cervical disc injury at C5/6. If it were related to the cervical spine, it would be involving the C6/7 level.
The treatment recommended by Dr Spittaler is reasonably necessary for the management of the cervical disc injury at C5/6 but is not going to alter persistent numbness and tingling in the ring and little finger of each hand.”
He is asked “please explain the mechanism by which our client’s work duties can cause his injuries, particularly regarding his cervical spine” and he answered:
“This gentleman’s work required repetitive use of rattle guns and working with his arms overheard. The nature and conditions of work over nearly a year has caused aggravation of the underlying degenerative change in the cervical spine at C5/6…”
In his subsequent report dated 28 June 2022 Dr Bodel notes that “the initial presentation was with arm pain, numbness and tingling and all the focus was on the ulna nerve as the source of that pathology. Extensive investigations were undertaken and it appears that there as been some contribution to the upper limb complaint in that area. The neck was then investigated as the source of the arm pain and the MRI of 13 May 2020 identified the C5/6 disc pathology as a possible source of radiculopathy”.
Dr Bodel opined:
“It is my view that there is evidence of degenerative disc disease in the cervical spine and ulnar neuritis in the elbows and that these are disease processes of gradual onset which predated any specific accident or injury that occurred at work The nature of work in general has caused aggravation, acceleration, exacerbation and deterioration in these disease process that led to pathology and injury.”
Dr Bodel considers that the proposed surgery is reasonably necessary treatment as a result of the injury and it is likely to be effective in reducing the neck pain and may help with the radicular pain. Counsel for Filter Cair makes the point that this is the opposite to the potential benefit expressed by Dr Spitaller.
Dr Bodel is asked whether the proposed surgery is reasonably necessary including whether there is more appropriate treatment that should first be explored. He opined:
“I do agree that Dr Spitaller has offered the anterior cervical decompression and fusion at the C5.6 level and that is reasonably necessary treatment for the management of the pathology in the neck, I would also confirm that it is appropriate for the management of that injury and all other alternatives have been exhausted with physiotherapy and medication.
It is likely to be effective in reducing the pain in the neck and may also reduce some of the radiculopathy. I am satisfied that the need for surgery is causally related to the work injury.”
I note that there is no evidence that supports Mr Bates having had physiotherapy on his neck or to treat the neck complaint.
Filter Cair relied on the opinion of an IME qualified on their behalf, Dr Bentivogio, neurosurgeon, who provided two reports dated 29 December 2020 and 1 September 2021 respectively.
In his first report Dr Bentivoglio records a history, a review of the radiological investigation, and recorded the results of his physical examination.
There were positive findings on physical examination of the neck consistent with Mr Bates’ ongoing complaints.
Dr Bentivoglio notes that the “diagnosis of a cervical disc injury at C5/6 level is quite consistent with a man who does heavy manual labour”.
So in other words, Dr Bentivoglio opinion provides support for Mr Bates’ case on injury to the neck.
Dr Bentivoglio does not however support the need for surgery because more conservative options should be tried before surgical intervention. He opined in that regard as follows:
“He certainly has had neck pain and stiffness of neck movement which could easily be related to the disc degeneration at C5/6 but I do not believe he has significant C6 nerve root entrapment and I am not convinced he has evidence of a cervical radiculopathy, If they are concerned about his neck he should have neck physiotherapy and even consideration of C6 peri radicular nerve blocks with cortisone before he undertakes operative intervention.”
Dr Bentvoglio considers that Mr Bates is essentially unfit for work. He opines:
“At this stage, Errol’s capacity for work is severely limited. He is not fit for suitable duties. He is not fit for restricted hours and he certainly cannot get back to the work that he was doing, he also has a breast lump on the left side, He also has cardiac issues and is on anticoagulants. The breast lump certainly has to be diagnosed and at this stage it has not and it may well be cancer of his breast.”
He considered Mr Bates unfit for work for 4 reasons:
“at this stage I do not think he is fit to get back to work for multiple reason1. Because of his neck pain and pain radiating into his right arm 2. Because of what I suspect is persistent ulnar neuropathies. 3 because he has a breast lump on the left side. 4. He has cardiac issues and is on anticoagulant therapy.”
Dr Bentivoglio provided a further report dated 1 September 2021 after a telehealth assessment on 24 August 2021.
He opined that the cervical degenerative disease is constitutional in nature but goes onto opine:
“I do believe he has had pre-existing degenerative disease which is mild, in his neck, at the C5/6 level which may have been exacerbated by the work injury. I certainly do not believe it needs operative intervention.
There is no evidence of spinal cord or foraminal compression.”
He goes onto say that he relates the “exacerbation of his C5/6 disc to the sort of work he has been doing”.
Again Dr Bentivoglio’s opinion lends support to Mr Bates’ case that the injury to the neck consists in the aggravation of his underlying cervical spine disease because of the heavy nature of his work.
Filter Cair also relies on the opinion of A/Prof Miniter, orthopaedic surgeon and an IME qualified on their behalf, who provided two reports. He saw Mr Bates on 26 July 2021 and provided a report dated 11 November 2021.
He notes in respect of the cervical spine:
“There was no mention at all of the cervical spine today. I note that it features fairly prominently in Dr Bodel’s history but this gentleman gave me no significant history of either neck pain or any C6 nerve root involvement. Thus even though he seems to have degenerative change at the C5/6 level, it is highly unlikely that this is work related and it is also highly unlikely that it is associated with his clinical presentation.”
He considers that Dr Bodel has overstated the case in relation to the cervical spine and he considers that it not related to any work injury.
He does not seem to take any account of the heavy and repetitive nature of the duties that Mr Bates was being asked to perform including the operation of vibrating power tools overhead.
Associate Professor Miniter provided a further report by way of file review dated
26 September 2022 at the request of Filter Cair’s lawyers.
He opined:
“Similarly when one makes reference to the AMA guides once again, it is quite clear that heavy work has no association with the development of cervical spine disease. Indeed unless there has been an acute rapid deterioration in function, associated with a particularly traumatic event, it is recognized in the medical literature that the cervical spine is uninvolved in matters such as this.”
Associate Professor Miniter appears to give no regard to the heavy nature of work aggravating an underlying cervical disease as opposed to being responsible for the development of cervical spine disease. Later he says there is no evidence of aggravation.
He makes the following point:
“there is no evidence of injury to the cervical spine.. He has simply local degenerative disease and this disease is not an injury. I have clarified the matter above and I note that this man had neck symptoms in May 2006 and also in November 2011. I note that the next reference to the neck discomfort was in March 2020 , more than 12 months after he ceased employment which occurred on 19 February 2019.”
He does not consider the proposed surgery would be of benefit. He writes:
“I note in particular that he has also been seen by Dr Spitaller who has commented that he may benefit from a C5/6 anterior decompression and fusion, From this point of view and noting that he has not had a diagnostic injection, and the fact that I also could not see convincing evidence of radiculopathy, I doubt that such surgery will be of benefit to this man.”
He considers that Mr Bates can get back to work.
I have to weigh all of the evidence carefully in the balance and come to a determination on the balance of probabilities whether it is more likely than not that Mr Bates suffered an injury to his cervical spine in the course of or arising out of his employment with Filter Cair, such injury consisting in the aggravation, acceleration, exacerbation or deterioration of an underlying disease in the cervical spine to which his work with Filter Cair was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the underlying disease.
I take into account that symptoms in the neck were not formally recorded as part of the clinical notes until March 2020 over 12 months after Mr Bates left the employ of Filter Cair. I note he was unable to continue his employment with Filter Cair because of the accepted injury to his bilateral upper extremities.
The absebnce of a record in the clinical notes is not automatically fatal to Mr Bates’ case. All of the evidence has to be weighed in the balance.
I note that the evidence shows that Mr Bates suffered, as a result of the accepted work injury to his bilateral upper extremities, persistent complaints of pain and restriction and altered sensation in his arms and hands that were of such severity that he came to operative intervention in August 2019 (on the right side) and November 2019 (on the left side). He did not have a resolution of all his symptoms and he continued to complain to his treating hand surgeon Dr Thorvaldson. He complained of neck pain which was worsening to
Dr Thorvaldson on 6 May 2020 who ordered an MRI which revealed pathology at the C5/6 level. It appears he did not return to the hand surgeon but was appropriately referred instead to Dr Spitaller, neurosurgeon. Dr Spitaller diagnosed the cervical pathology and recommended surgical intervention. Dr Spitaller considered that the heavy and repetitive nature and conditions of work with Filter Cair has been responsible for the aggravation of the underlying cervical spine disease. He says that whilst the degenerative disease was present, force was required to cause the disc to bulge and he considers that the heavy nature of the work caused the disc bulge at C5/6. Dr Bodel agrees that the heavy nature of the work including the extent of overhead lifting has been responsible for aggravation of the underlying disease, Dr Bentivoglio, an IME qualified on behalf of Filter Cair, considers that there has been an exacerbation of the underlying disease by reason of the heavy nature of the work. I consider that Dr Spitaller, Dr Bodel and Dr Bentivoglio have taken into adequate account the heavy and repetitive nature of the work performed in the employment with Filter Cair which included repetitive overheard lifting of vibrating power tools. A/Prof Miniter on the other hand considers that work has not aggravated the underlying disease and appears to take no account of the extremely heavy nature of the work which involved repetitive overhead lifting and operation of vibrating power tools.
When I weigh all of the evidence in the balance I prefer the opinions of Dr Spitaller, Dr Bodel and Dr Bentivoglio. When I weigh all of the evidence in the balance and taking into account the absence of recorded complaints about neck pain until over 12 months after he left work, I am satisfied with Mr Bates’ explanation that he was preoccupied with the severity of his hand and arm symptoms for which he came to staged surgical intervention later in 2019 (In August 2019 on the right side and In November 2019 on the left side) and that his neck complaint came into focus when he did not get a complete resolution of his arm and hand symptoms and the neck became the subject of investigation such that his hand surgeon requested an MRI of the neck which was undertaken on 13 May 2020 and revealed pathology at the C5/6 level which led to him being referred to Dr Spitaller, neurosurgeon, who has recommended the surgery at C5/6.
After weighing all of the evidence in the balance, I am satisfied on the balance of probabilities that M Bates suffered an injury to his cervical spine deemed to have occurred on
9 January 2019 in the course of arising out of his employment with Filter Cair, such injury consisting in the aggravation, acceleration, exacerbation or deterioration of an underlying disease in the cervical spine, to which his employment with Filter Cair was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration.
Turning then to the question whether Filter Cair was the relevant last employer, that is the employer who last employed Mr Bates in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
Filter Cair submitted I should find that Mr Bates was engaged in subsequent employment as a removalist which by its nature was heavy and therefore I would not find that compensation is payable by Filter Cair.
Counsel for Filter Cair points to the notes in the GP’s clinical records that Mr Bates “works as a removalist” (recorded by Dr Swamy on 28 July 2020) and that he was “unlikely to be able to return to work as a removalist any time soon (recorded on 19 August 2020). Nself for Filter ACir also pointed to his occupation being recorded as removalist on the certfcate of capacity. Counsel for Filter Cair also pointed to the clinical records of 15 March 2019 and 20 March 2019 referring to “Pukara Estate Pt” and “Pukara Estate” respectively and Mr Bates concession that these entries re;ated to removalist jobs although he did not concede that he was involved with heavy lifting.
I take this into account and weigh this evidence in the balance with the other evidence that is before me.

Mr Bates gave evidence that he worked as a type of “middleman” in which he made arrangements for removalist work to be undertaken and often took money from the client’s but performed no physical work. He says he was not physically capable of doing so.
Mr Bates was cross examined about his evidence. His bank records show he received more money than he originally gave evidence of having received. Counsel for Filter Cair says that this was because Mr Bates was performing removalist work and all that entailed including heavy lifting and moving furniture.
Counsel for Mr Bates concedes that it was a rather “odd” arrangement that Mr Bates was involved in but he shouldn’t be penalised for this.
It certainly appears that the arrangement operated independently of any of the taxation laws of this country.
However Mr Bates was consistent in his denials that he did not perform any physical work.
This denial is consistent with the evidence of those treating him and indeed the opinion of
Dr Bentivoligio, the IME qualified on behalf of the respondent, that Mr Bates was severely restricted in his capacity for work and was unable to perform physical work.
When I weigh all of the evidence in the balance, I am satisfied that Filter Cair was the last employer who last employed Mr Bates in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease in the cervical spine and therefore the employer by whom compensation is to be paid.
This then leaves the question of whether the proposed surgery in the form of C5/6 anterior
discectomy and fusion is reasonably necessary as a result of the injury so found.
Deputy President Roche in Diab v NRMA [2014] NSWWCCPD 72 (Diab) provided a useful summary of the authorities dealing with whether medical expenses are “reasonably necessary” as a result of injury as required under s 60 and set out the approach that is to be adopted.
Deputy President Roche in Diab said as follows:
“76.   The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A—C:
‘3.    Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.’
77.     The Commission has applied this test in several cases (see, for example, Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41 at [67]).
78.     In addition, the Commission has been guided by, and generally followed, the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo), where his Honour said, at 238D:
‘The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.’
79.     The Arbitrator quoted and applied these statements in the present matter. Subsequent appellate authority suggests that this approach may not be strictly correct.
80.     The Court of Appeal considered the meaning of ‘reasonably necessary’ in Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99 (Clampett). That case concerned whether proposed home modifications for a paraplegic were ‘reasonably necessary’ having regard to the nature of the worker’s incapacity. Grove J (Meagher and Santow JJA agreeing) noted that the trial judge had sought guidance from Rose and Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264 (Pelama), another decision by Burke CCJ where his Honour applied the principles discussed in Rose and Bartolo.
81.     Grove J referred to the dictionary definition of ‘necessary’ as being ‘indispensable, requisite, needful, that cannot be done without’ (Shorter Oxford English Dictionary, 3^rd ed) and ‘that cannot be dispensed with’ (Macquarie Dictionary).
82.     His Honour added, at [23]–[24]:
’23. The essential issue is what effect flows from conditioning such qualities as “reasonably”. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word “necessary” if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be “reasonably necessary” there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of “necessary” in this context.
24.The statute does not inhibit inquiry as to what may be thought reasonable in all, or in any particular, circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of “necessary”.’
83.     It is important to remember that Grove J’s reference in the above passages was in the context of a claim for home modifications under s 59(g). That subsection is restricted to claims for modification of the worker’s home or vehicle directed by a medical practitioner ‘having regard to the nature of the worker’s incapacity’ (emphasis added). Apart from s 59(f), which deals with care (other than nursing care), there is no such restriction in the other subsections in s 59.
84.     In Wall v Moran Hospitals Pty Ltd t/as Annandale Nursing Home, Burke CCJ, unreported, Compensation Court of NSW, 30 June 2003, Burke CCJ acknowledged (at [10]) that, contrary to Rose and Pelama, Clampett held that the word ‘reasonably’ was ‘effectively used as a diminutive and moderated the effects of the word ‘necessary’’.
85.     The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words (Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68 per Gordon J (Besanko J agreeing)). Thus, ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113] (Moorebank).
86.     Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87.     Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
a.the appropriateness of the particular treatment;
b.the availability of alternative treatment, and its potential effectiveness;
c.the cost of the treatment;
d.the actual or potential effectiveness of the treatment, and
e.the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89.     With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
90.     While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
As Deputy President Roche said in Diab each case will depend on its own facts.
It is well settled that all conservative measures need not be exhausted before surgery can be considered reasonably necessary. When I weigh all of the evidence in the balance it is clear that Mr Bates has had no conservative treatment in respect of his neck. Dr Spitaller concedes that physiotherapy may benefit his neck pain. He also does not consider that the condition will deteriorate without the surgery although the pain will continue. He concedes physiotherapy may benefit the neck pain but he says it will not help the arm pain. Dr Bodel supported the surgery but, as part of his support for operative intervention at this stage,
Dr Bodel specifically noted that conservative measures such as physiotherapy and medication had been exhausted. In fact there is no evidence before me that Mr Bates has had any conservative treatment of the neck although Mr Bates is taking medication for the pain. Dr Bentvolglio considered that before such serious operative intervention should be considered, physiotherapy and guided injections with cortisone should be undertaken. A/Prof Miniter considered that the surgery would not benefit Mr Bates and also noted that a diagnostic injection had not been undertaken. When I weigh all of the medical and other evidence in the balance, I am not satisfied that the weight of medical opinion supports that it is reasonably necessary for the cervical spinal surgery to be undertaken at this time and prior to the trial of any conservative measures.
In these circumstances I have not been satisfied on the balance of probabilities that the proposed surgery is reasonably necessary at this time and prior to the trial of at least some form of conservative treatment. When I weigh all of the evidence in the balance I am not satisfied on the balance of probabilities that the proposed surgery is reasonably necessary as a result of the injury so found. On this basis, there will be an award for the respondent in respect of the proposed surgery.

[2023] NSWPIC 95

9 March 2023