Bennett v Kellogg's (Aust) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bennett v Kellogg’s (Aust) Pty Ltd [2022] NSWPIC 2
APPLICANT:	Sandra Bennett
RESPONDENT:	Kellogg’s (Aust) Pty Ltd
MEMBER:	Paul Sweeney
DATE OF DECISION:	10 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of a peripheral nerve stimulator prescribed in respect of an accepted injury; employer disputes claim on the basis that it did not result from pleaded injury and that it was not reasonably necessary; neither the worker’s statement nor the histories of the medical practitioners who support her claim refer to a long history of pre-injury back pain recorded in the clinical notes of treating doctor; Held -finding that there is no “fair climate” for the medical opinion evidence in the worker’s case; award for respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

INTRODUCTION

Sandra Bennett (the applicant) has been employed with Kellogg’s (Aust) Ltd (the respondent) as a machine operator since December 2017. She has a long history of low back pain. On 12 February 2020, she lifted a 40kg roll of plastic in the course of her employment and experienced intense pain in her low back.
The applicant worked intermittently after the injury but since June 2021 she has been certified as unfit for work. The pain in her back has been recalcitrant to several different modes of treatment prescribed by her doctors. The most recent treatment prescribed by Dr Ho, the applicant’s pain specialist, is a trial of a Peripheral Nerve Stimulator.
The respondent’s workers compensation insurer accepted liability in respect of the applicant’s injury and she has been paid weekly compensation and indemnified in respect of her medical treatment.
Upon receipt of a report from Dr David Gorman, a pain specialist, dated 25 May 2021, the insurer issued a s 78 Notice by which it asserted that the applicant’s incapacity and need for medical treatment no longer resulted from the work injury. The insurer stated that it would not pay the applicant weekly compensation after 22 November 2021. It also disputed the applicant’s entitlement to an indemnity in respect of the cost of the Peripheral Nerve Stimulator Dr Gorman concluded it was “unwarranted in the circumstances”.

PROCEDURE BEFORE THE COMMISSION

By these proceedings the applicant claims the cost of the Peripheral Nerve Stimulator trial proposed by Dr Ho pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
This matter had a telephone conference on 27 October 2021 when both parties were represented by solicitors. As the matter was unable to be resolved, I listed the matter for a conciliation conference and arbitration hearing on 30 November 2021. When the matter came on for conciliation and arbitration, it emerged that there was some confusion about the time at which the matter was listed. This may have been partly my fault. However, any fault of mine was compounded by the failure of the respective solicitors to read the notices issued by the Commission, which contained the correct information as to the time and date of the telephone conference.
At the conciliation conference, I was informed by the respondent’s solicitor that the matter was incapable of resolution and that counsel were presently otherwise occupied and would not be available during the course of the morning. As it was not feasible to give the matter another hearing date before February 2022, I directed that the respondent provide written submissions by 12 December 2021 and that the applicant lodge written submissions by 23 December 2021. Those submissions have now been received.
As there is some confusion about the nature of the claim for medical expenses, it is appropriate to set out the claim made in the application. It is as follows:
“Treatment in the form of a Peripheral Nerve Stimulator trial, as proposed by Dr Tim Ho in the attached reports dated 15 March 2021 and 20 September 2021. In addition, we request approval of ancillary costs and related expenses in the form of day hospital admission and pain management (outpatient rehabilitation) as proposed by Dr Ho”.
It is evident from the above, that although the respondent denied that the applicant was entitled to weekly compensation prior to the telephone conference, there is no claim for weekly compensation. I have carefully perused my notes of the telephone conference and counsels’ submissions and they confirm the conclusion that the claim is limited to the cost of a Peripheral Nerve Stimulator trial.

EVIDENCE

The documents before the Commission are:
(a) the Application to Resolve a Dispute and the documents attached, and
(b) the Reply and the documents attached.

SUBMISSIONS

The submissions of counsel are in writing and I do not propose to reiterate each of the arguments contained in the written submissions. I note that neither counsel objected to any of the material tendered in evidence or sought to adduce further evidence other than that set out above.
By his submissions Mr Doak addressed both issues raised by the reports of Dr Gorman and the respondent’s declinature of compensation. First, he argued that the opinion of Dr Ho as to precisely what nerve stimulator was appropriate in the circumstances was ambiguous. He had referred both to Peripheral Nerve Stimulator and a Spinal Cord Stimulator. Secondly, Mr Doak argued that the evidence did not establish that the need for a Peripheral Nerve Stimulator resulted from the subject injury given the applicant’s pre-injury history of back pain. Thirdly, he submitted that the procedure was not “reasonably necessary in the circumstances”.
By her submissions, Ms Grotte submitted that there was no confusion as to the medical treatment for which compensation was sought. It was a “trial of Peripheral Nerve Stimulator with four leads”. On the issue of causal nexus, she submitted that a review of the notes of the applicant’s treating general practitioners demonstrate that the “post-injury picture is in stark contrast with the pre-injury clinical picture”. In particular, post injury the applicant had difficulty continuing to work whereas pre-injury this was not the case. Thirdly, Ms Grotte reviewed the medical evidence and submitted that the unanimous views of the treating doctors should outweigh the opinion of Dr Gorman.
It will be necessary to return to the submissions of counsel in attempting to resolve the issues in dispute. In the meantime, it is necessary to summarise the salient aspects of the applicant’s evidence and the evidence of Dr Ho and Dr Assem, an occupational physician qualified by the applicant’s solicitors, and Dr Gorman.

The applicant

By her signed statement dated 29 September 2021, the applicant says that prior to the injury in 2020 she did not suffer from any medical conditions which significantly affected her ability to “complete daily duties”. She records that she had a minor low back injury at work in 2014 but “made a full recovery and no longer experienced any pain symptoms”. In keeping with the modern practice for lay witnesses to give medical opinion evidence, she states:
“I confirm this injury had no bearing on the subject injury.”
The applicant continues that she does not recall experiencing any pain or restrictions in her lower back prior to commencing employment with the respondent and that she was able to engage in all of the activities of daily living “without compromise and seldom took time off work”.
The applicant says that her role as a machine operator involved some physical effort loading materials on to the line and pushing and pulling weights up to 15kg from one area to another. On 12 February 2020, while lifting a 40kg roll of plastic she experienced “a sharp stabbing sensation” across her lower back. She says that she had not experienced such an intense and agonising pain previously.
On 13 February 2020, the applicant saw her general practitioner, Dr Haque who referred her for a CT scan and prescribed pain medication. After the scan the applicant underwent a cortisone injection into her L5/S1 final segment, then, following a second injection on 15 May 2020, she had quite a deal of relief. She was able to return to work over the next several weeks.
On 10 June 2020, the applicant experienced further severe pain in her back when she stood up from her seat at work. She took tramadol tablets and drove herself home. The following day she attended a doctor at Rosemeadow. She was certified unfit for work and referred to Dr Renata Bazina, the neurosurgeon. She had an MRI scan on 15 June 2020.
On 17 June 2020, the applicant attended Campbelltown Hospital because of persistent pain. On 18 June 2020, having formed the view that the applicant’s low back pain was not amenable to surgery, Dr Bazina prescribed Orudis.
Between July and December 2020, the applicant underwent both physiotherapy and hydrotherapy apparently without relief of pain. At Dr Abraszko’s recommendation she underwent further cortisone injections. Ultimately, she was referred to Dr Tim Ho for pain management.
Dr Ho initially recommended radiofrequency neurotomy. However, that procedure only alleviated the applicant’s symptoms for a “short period of time”. During this period the applicant again returned to work on light duties.
In June 2021, the applicant again consulted with Dr Ho who “explained the next reasonable step would be to undergo an implantation of a peripheral nerve stimulator”. The applicant was told that this would reduce her opioid consumption. She says:
“Currently, I am in excruciating pain. My spine constantly feels like it is grinding together which causes extreme distress and tenderness. My right leg constantly throbs and it feels as though it has a heartbeat. I am no longer able to sit or stand for longer than 5 minutes without being in agony. I must now use Norspan patches which make me feel unwell as nothing manages my pain”.
Much of the balance of the applicant’s statement is taken up with a review of the medical evidence. I would infer from the recent medical evidence available that the applicant’s work capacity has been downgraded, and that she is not working.

Dr Assem

Dr Mohammed Assem, a rehabilitation specialist saw the applicant at the request of her solicitors and provided a report dated 13 August 2021. He took a history that the applicant had a prior work injury and that her symptoms “subsequently resolved and she was able to work in a regular and reliable manner”. He records that a CT scan of the lumbar spine on 11 January 2006 showed “multi-level degenerative disc disease and facet joint disease and possible bilateral L5 and S1 nerve root irritation”.
Dr Assem took a consistent history of the applicant’s treatment, including her referral to Dr Ho and the doctor’s suggestion of “the insertion of a spinal cord stimulator”. He recorded that the applicant had remained off work since June 2020 and was continuing to experience “severe pain”. She was taking Celebrex and Palexia but was not receiving physiotherapy as this was aggravating her condition.
As his appointment was conducted audio-visually, Dr Assem only recorded a basic examination. He stated, however, that:
“Ms Bennett has chronic mechanical low back pain due to a combination of factors including degenerative lumbar disc disease, facet joint arthropathy, sacroiliac joint dysfunction and right trochanteric bursitis”.
He expressed the opinion that her employment injury was the main contributing factor to her condition and her subsequent incapacity. He opined that a Spinal Cord Stimulator was “recommended for selected patients when invasive procedures had failed to provide any long-term benefits”. The treatment had widespread acceptance and recognition in the medical community and over a lifetime it “can be cost saving and result in more health gains”.
In respect of capacity, Dr Assem thought that while she could perform suitable duties at reduced hours “it is unlikely to be sustained”. Oddly, he expressed the opinion that it was “unlikely that she will ever again engage in gainful employment on a sustainable basis in any occupation for which she is reasonably qualified by education, training or experience”.

Dr Ho

Dr Ho has provided a series of reports to Dr Haque, Dr Bazina and to the applicant’s solicitors. He records in his reports a history of a “lifting injury at work 12-02-2020”. He does not appear to record a history of the applicant’s pre-injury health including the state of her back prior to the work incident. He expressed the opinion that the applicant suffered a chronic pain condition. This included components of the following:
·        chronic nociplastic lower back pain secondary to central sensitisation;
·        component of lumbar facetogenic pain and SIJ dysfunction;
·        lack of active pain coping strategies;
·        long term opioid therapy on OMEDD ~ 120mg/day, and
·        workplace injury – previously worked as a machine operator.
Dr Ho recorded that the applicant had unsuccessfully been prescribed physiotherapy, injections, radiofrequency treatment and medications. He continued:
“I opine the diagnosis above is triggered by the workplace injury, maintained by central-sensitisation and perpetuated by adjustment disorder, and reduced self-efficacy. I opine that her employment is the main contributing factor to the current condition and pain-related disability.”
Dr Ho thought that the applicant did not have the capacity to return to her pre-injury duties. He then addressed a number of issues raised by Dr Gorman. He said that the Peripheral Nerve Stimulator was aimed at addressing pain from the spine/nerve. He stated that the stimulator was part of (rather than separate from) a program which would include pain self-management. He expressed the opinion that the applicant had been offered pain psychology but it had been “difficult to implement due to COVID with the waiting list”.

Dr Gorman

Dr Gorman first saw the applicant on 30 April 2021. He recorded a history of a back injury at work in February 2020 and of an exacerbation in June 2020 which resulted in the applicant going off work. He recorded a history of the applicant being treated by Dr Bazina and Dr Ho. At the time of his review the applicant was working six hours per day, four days per week with a 10kg lifting restriction and a break every hour.
In respect of past medical history, the doctor recorded that the applicant had “pulled a muscle in her back” in 2014. She was off work for one week. She started taking Tramadol 50mg and Celebrex.
Dr Gorman expressed the following opinion:
“Sandra Bennett has lumbar degenerative disease which has responded to steroid injections into the lumbar facet joints and sacroiliac joints and has also responded to the radiofrequency treatment”.
He recorded that she was gradually increasing her work hours but that she was deconditioned and had gained weight. He thought that she would be helped by psychological intervention. He stated that he did not believe that Peripheral Nerve Stimulation was useful as it did not address the “pain generator” and was adding “another passive invasive treatment when she should be focusing on self-management”.
Dr Gorman accepted that the applicant’s employment was a significant contributing factor to her injury. He thought, however, that her ongoing symptoms were “more related to the degenerative disease rather than work-related injury”. He thought that she could return to full hours over the next one to two months and back to “full unrestricted duties in two to three months”.
By a supplementary report dated 8 September 2021, Dr Gorman noted that there had been some confusion in the reports of Dr Ho and also in the report of Dr Mohammed Assem as to whether the recommendation was for a Spinal Cord Stimulator or a Peripheral Nerve Stimulator. He noted that the applicant did not have radiating pain in the legs. He accepted Dr Ho’s description of back pain and noted that it “does not include neuropathic pain”. Therefore, he remained of the opinion that there was no indication for spinal cord stimulation or peripheral nerve stimulation.
He specifically addressed the question of whether the aggravation of the applicant’s condition by the work injury had ceased and conceded that it was “always difficult in this situation to determine when and if an aggravation of severe degenerative changes has resolved”. He continued:
“The fact that she again deteriorated between my review and when seen by Dr Assem, without any definite injury, supports my belief that her ongoing symptoms are substantially from her degenerative disease and not from the work injury on 12 February 2020”.
Dr Gorman expressed the opinion that the applicant could return to full hours but was unlikely to be able to return to unrestricted duties. He continued:
“I believe she could return to work with a similar lift and bending restriction but up to 4 hours after a graduated return to work program. The need for ongoing restrictions would be because of her underlying degenerative disease”.

DISCUSSION AND FINDINGS

In his submissions Mr Doak referred to the decision of Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 in support of the proposition that the applicant must show that the injury materially contributed to the need for treatment. He also referred to Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 for the proposition that the Commission needed to be satisfied “that expert evidence provides a satisfactory basis upon which the Commission can make its findings”.
In her submissions, Ms Grotte referred to the decision of the Presidential Unit in Diab v NRMA Ltd [2014] NSWCCPD 72 (10 November 2014) (Diab), which modified the reasoning of Burke CCJ in a series of cases commencing with Rose v Health Commission (NSW) (1986) 2 NSWCCR 32. I intend to apply the instruction in the cases referred to by counsel.
Both pain specialists accepted that nociplastic pain was one of the applicant’s primary diagnoses. It is not a term with which I am familiar. An article headed “Nociplastic Pain: Towards an Understanding of Prevalent Pain Conditions” by Fitzcharles, Cohen, Clauw and Littlejohn, published in The Lancet on 29 May 2021, states that:
“Nociplastic pain is the semantic term suggested by the international community of pain researchers to describe a third category of pain that is mechanistically distinct from nociceptive pain, which is caused by ongoing inflammation and damage of tissues, and neuropathic pain, which is caused by nerve damage. The mechanisms that underlie this type of pain are not entirely understood, but it is thought that augmented CNS pain and sensory processing and altered pain modulation play prominent roles. The symptoms observed in nociplastic pain include multifocal pain that is more widespread or intense, or both, than would be expected given the amount of identifiable tissue or nerve damage, as well as other CNS-derived symptoms, such as fatigue, sleep, memory, and mood problems.”
As Mr Doak submitted that the records of the Rosemeadow Medical Centre include a history of back pain that is not entirely consistent with the applicant’s account, it is necessary to compendiously recount those records. Again, what follows is not a comprehensive survey of the clinical notes.
On 10 March 2015, the applicant complained of low back pain after lifting a box at work on the previous evening. Dr Biswas noted that there were no neurological symptoms but a very reduced range of movement. He diagnosed:
“Likely mechanical low back pain (musculo-ligamentous).”
On 12 March 2015, Dr Biswas recorded that the applicant still had “LBP but much better”. There were no neurological symptoms and the applicant wanted to return to work. On 1 March 2015, the applicant reported that there was “no more LBP” and she was happy to return to work on normal hours. The doctor recorded that the applicant’s range of movement of the lumbar area was “fine”.

On 13 August 2015, the applicant reported pain in her low back after lifting her dog which weighed 30kg. The doctor prescribed anti-inflammatory medication and noted that she had restricted back movement.
On 8 January 2016, the applicant reported pain over the right hip and leg posteriorly. She reported that she had weeks with difficulty walking “now and then”. Dr Nguyen queried radicular pain in the right leg and ordered a lumbosacral CAT scan.
On 13 January 2016, the applicant complained of lower back pain “radiating to the right leg”. It would appear that the doctor referred the applicant to Dr Abraszko at that time, although she may not have presented to the doctor.
On 4 July 2016, Dr Haque recorded that the applicant had “back pain intermittent and chronic”. He queried a pinched nerve. He suggested a CT scan.
On 6 September 2016, the applicant saw Dr Ely and reported that she hurt her low back lifting a box at work last night. On 7 September 2016, the applicant presented to Dr Ely and told him that the pain was “not better”. She wanted stronger medication. She was prescribed Targin.
On 9 September 2016, the applicant presented with low back pain and difficulty with walking. Once again she was referred for a lumbosacral spine CT scan. On 9 September 2016, Dr Haque recorded the following:
“CT scan report explained.
Future management plan which may involve a spinal surgeon and a physiotherapist explained.
On narcotic medications.
Risk of pain hypersensitivity, tolerance of narcotics and dependence/addiction on narcotic pain medications: discussed.
Use of Panadol and Nurofen in the pain medication ladder: discussed.
Advised to take irregularly and infrequently.
Pain worsened with movement.
Unable to bend forward.”
The doctor issued a NSW WorkCover Certificate of Capacity.
On 14 September 2016, Dr Ely recorded that the applicant’s pain was improving and that she “wants to start working”.
On 4 October 2018, Dr Haque recorded that the applicant had “severe low back pain” which started today when the applicant twisted the wrong way getting up after packing the dishwasher. She was prescribed Endone. Her range of movements were grossly restricted although she had no neurological signs.
On 7 October 2018 ,the applicant complained to Dr Nguyen of severe low back pain. She was walking slowly “with distress”.
On 9 October 2018, Dr Haque recorded that the applicant still had back pain.
On 20 December 2018, Dr Nguyen recorded that the applicant had more pain in the lower back with radiation to the right leg. She was walking slowly and was severely distressed. He wrote a referral to Dr Darwish, the neurosurgeon, and prescribed Celebrex and Tramadol.
On 12 January 2019, Dr Fahmy recorded recurrent lower back pains. The applicant was requesting Tramal.
On 15 April 2019, the applicant was “asking for painkiller”. She stated that Targin was not as good as Tramadol. She said that she could not afford to see Dr Darwish. Dr Haque referred to her recent CT scan of the lumbar spine which was for longstanding back pain. She referred the applicant to physiotherapy and prescribed Tramadol.
On 13 June 2019, Dr Haque recorded that the applicant was:
“having physiotherapy of the back twice a week through workplace.
Tramadol PRN. Advised one last script for 3 months.”
On 30 June 2019, Dr Haque reviewed the applicant’s CT scan again and noted a history of longstanding back pain. She prescribed physiotherapy.
On 20 November 2019, the applicant reported that her low back pain “flared up this morning”. She complained of localised pain that “sometimes goes down L leg”. There were no neurological signs. The applicant was prescribed Tramadol.
On 16 February 2020, Dr Sultana recorded that the applicant experienced back pain. He noted the following:
“H/O low back pain
Aggravated lately
At work lifting heavy boxes last noight [sic]”
It is evident from the above summary, that the applicant’s account of her pre-injury back pain in her signed statement is, at best, superficial and, at worst, misleading. The applicant refers to a back injury in a previous employment from which she completely recovered. There is then an account of the incident on 12 February 2020 and its sequelae. The implication is clearly that there was no back problem in the intervening period. The truth is starkly different. The applicant saw medical practitioners on numerous occasions throughout the period between 2015 and the injury in 2020 for back pain. She saw Dr Haque some three months before the February incident and was prescribed tramadol.
It is true that a number of the applicant’s attendances at the Rosemeadow Medical Centre in the years before February 2020 relate to incidents at work and it seems likely that a previous employer accepted liability in respect of a back injury and paid the applicant compensation. However, none of the medical practitioners who have reviewed the applicant have a history of the applicant’s back pain that is consistent with the clinical record.
Dr Gorman, for example, records a history that is almost identical with the one contained in the applicant’s statement. The only account of back pain prior to the subject injury is of a “pulled muscle” in her back for which she was “off work for one week”. Dr Assem has a similar history. Dr Ho, as far as I can gather, has no history of back problems prior to the incident relied upon in these proceedings.
Ms Grotte argued that the applicant’s post injury state was dramatically different to that prior to the injury. There is some force in this argument. By and large, it appears that the applicant continued to work before the injury in the 2020. On the other hand, as Dr Gorman points out, she returned to work after that injury. In the absence of an accurate history of the development of the applicant’s back pain it is not possible to accurately address the causes of her present problems.
Dr Gorman, of course, rather tentatively suggests that aggravation caused by the February 2020 injury has ceased. As Mr Doak argued, the applicant’s pre-injury history of back pain lends some support to this opinion. The undoubted unreliability of the applicant’s evidence also favours an acceptance of this opinion. However, given the qualifications that Dr Gorman placed upon his opinion, I do not propose to accept it.
One of the important indicators of the need for a peripheral nerve stimulator is the very high dosage of opiate based medication being ingested by the applicant at the present time. Dr Ho obviously attributed that to the recorded injury. It is not at all clear, however, that this is the case. The applicant has been prescribed opiate based medications for back pain for a very long time. As I recorded above, the applicant was prescribed tramadol less than three months before the injury relied on in these proceedings. Patently, Dr Ho did not have this history.
That is merely illustrative of the difficulties in offering an opinion, whether in respect of the need for treatment, or any other issue, without a proper history. I have concluded that the applicant’s history of low back pain is so radically different to that recorded by the medical practitioners that it cannot be said that Dr Ho or Dr Assem have recorded a fair climate for their respective opinions in accordance with Wigmores use of the phrase adopted in Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505.
On the basis of the evidence currently before the Commission, I am not satisfied that the applicant has established that her need for a trial of a Peripheral Nerve Stimulator is reasonably necessary as a result of the pleaded injury. I make an award for the respondent.

[2022] NSWPIC 2

10 January 2022