Bergicourt v Commonwealth Bank of Australia

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bergicourt v Commonwealth Bank of Australia [2024] NSWPIC 318
APPLICANT:	Brigitte Nathalie Bergicourt
RESPONDENT:	Commonwealth Bank of Australia
MEMBER:	John Turner
DATE OF DECISION:	18 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted injury to the lumbar spine; dispute as to whether orthotics reasonably necessary treatment due to accepted back injury; Held – that the provision of orthotics is reasonably necessary treatment within the meaning of section 60 as a result of the accepted injury to the applicant’s lumbar spine; the respondent is to pay for the costs of and ancillary to the provision of orthotics as recommended by Ms Jessica Grimson, podiatrist.
DETERMINATIONS MADE:	The Commission determines: 1. That the provision of orthotics is reasonably necessary treatment within the meaning of s 60 of the Workers Compensation Act 1987 as a result of the accepted injury to the applicant’s lumbar spine. The Commission orders: 2. The respondent is to pay for the costs of and ancillary to the provision of orthotics as recommended by Ms Jessica Grimson, podiatrist.

STATEMENT OF REASONS

BACKGROUND

Brigitte Bergicourt, the applicant, commenced employment with the Commonwealth Bank of Australia, the respondent, in approximately 1988.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which she alleges that she sustained injury to her lumbar spine on 27 July 2005 when she was involved in a motor vehicle accident whilst in the course of her employment with an aggravation or recurrence occurring at work on 1 July 2011.
The applicant claimed the costs of and associated with hernia surgery, podiatry treatment and physiotherapy for her right knee. At the time of the conciliation conference / arbitration hearing on 19 April 2024 the parties resolved the majority of the claim. The only issue which remained in dispute is whether pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) the provision of orthotics is reasonably necessary treatment as a result of the accepted injury to the lumbar spine.
There is no dispute that the applicant sustained injury to her lumbar spine.
It is the applicant’s evidence that on 27 January 2005 she was involved in a motor vehicle accident whilst driving to the Commonwealth Bank branch in Narellan. At the time of the accident the applicant experienced significant pain in her neck and lower back.[1]
[1] Application to Resolve a Dispute (ARD) p 1.
It is the applicant’s evidence that she had previously sustained a minor back injury in a motor vehicle accident in or about 1994. Whilst her recovery was slow following that accident, she returned to her full work duties and managed her lower back pain with medication only.[2] It is the applicant’s evidence that she achieved a full recovery from that earlier injury.[3]
[2] ARD p 1.
[3] ARD p 4.
It is the applicant’s evidence that throughout 2005 and into 2006 her lower back pain did not improve at all and was aggravated by prolonged sitting.[4]
[4] ARD p 1.
It is the applicant’s evidence that she maintained control of her symptoms however on 30 June 2011 whilst working as a teller she experienced pain in her lower back which shot down into her left leg. On 1 July 2011 the applicant was driving to work when she experienced severe back pain which radiated into her left leg. She attended work with the respondent and opened the front doors and performed her duties as a concierge. In the course of her duties, she was assisting a customer and as she turned to get a staff member to assist, her lower back froze, she experienced intense pain, and her left leg went numb. The applicant was driven from work to her general practitioner (GP), Dr George Tosson.[5]
[5] ARD p. 2.
The applicant underwent a left L5/S1 microdiscectomy on 24 July 2011 at the hands of Dr Renata Abraszko, neurosurgeon.
It is the applicant’s evidence that her condition did not improve with rehabilitation following the surgery and Dr Abraszko recommended cortisone injections into her lower back. The first injection provided pain relief for approximately two months before the pain returned in early 2012.[6]
[6] ARD p. 2.
It is the applicant’s evidence that in August 2011 she was involved in a motor vehicle accident when the vehicle in which she was a passenger was struck from behind.[7] Dr Abraszko examined the applicant after the accident and no additional injuries were diagnosed.[8]
[7] ARD p. 4.
[8] ARD p. 62.
It is the applicant’s evidence that by mid-2012 her symptoms had begun to worsen. The applicant was referred to Dr David Manohar, pain specialist, for pain management which included multiple injections to her lower back, medication as well as radiofrequency neurotomy.[9]
[9] ARD p. 3.
It is the applicant’s evidence that by the end of January 2013 the pain had returned and was extending into her left hip and down her left leg into her left calf and ankle.[10]
[10] ARD p. 3.
It is the applicant’s evidence that she was referred to Dr Renata Bazina, pain specialist, who recommended a multi-disciplinary pain management program. It is the applicant’s evidence that the program did not work.[11]
[11] ARD p. 3.
It is the applicant’s evidence that in February 2016 she trialled a spinal cord stimulator. The trial was unsuccessful with the applicant continuing to experience severe pain.[12]
[12] ARD p. 4.
On 24 June 2019 the applicant underwent a L5/S1 anterior microdiscectomy and fusion procedure at the hands of Dr Abraszko.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the provision of orthotics is reasonably necessary treatment within the meaning of s 60 of the 1987 Act as a result of the accepted injury to the applicant’s lumbar spine

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 19 April 2024. Mr Bruce McManamey, counsel, instructed by Mr Philip Ferraro, solicitor, appeared for the applicant, who was present. Mr Andrew Davis, counsel, appeared for the respondent, instructed by Mr Dominick Secombe. The proceedings were conducted on MS TEAMS. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents,
(b)    Reply and attached documents,
(c)    Applicant’s Application to Admit Late Documents (AALD) signed 31 January 2024 and 15 April 2024 and attached documents, and
(d)    Respondent’s AALD signed 11 April 2024 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence.

SUBMISSIONS

The parties provided the following written submissions:
(a)    applicant on 29 April 2024;
(b)    respondent on 9 May 2024, and
(c)    applicant in reply on 16 May 2024.

FINDINGS AND REASONS

Consideration and findings

The sole remaining issue to be determined is whether the provision of orthotics is reasonably necessary treatment as a result of the accepted injury to the lumbar spine.
As a preliminary issue the applicant submits that the respondent has never properly disputed the need for the orthotics as a result of the accepted back injury. The respondent submits that the notice given by the respondent pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 14 November 2022 disputes liability for the orthotics on the basis that the need for the orthotics related to an unrelated fall which occurred in 2021 as well as a degenerative condition.
The s 78 notice of 14 November 2022 indicates that the respondent was under the belief that the podiatry treatment was being requested to treat left foot plantar fasciitis.
The s 78 notice noted that the applicant had attended on Park Central Podiatry on 3 May 2022 at which time it was noted that the applicant’s footwear was worn on the plantar aspect. The s 78 notice also observed that Dr Renata Abraszko had observed that the applicant may have plantar fasciitis.
The respondent also referred to a report of Dr Kurrie dated 2 June 2022. Dr Kurrie had referred the applicant to Park Central Podiatry. Dr Kurrie reported that he had referred the applicant to the podiatrist for an opinion as to appropriate footwear. The doctor does not state what the physical concern was that had caused the referral. Rather Dr Kurrie referred to assisting mobility.
The applicant in the ARD even pleaded consequential injury to the left foot due to her legs giving way.
In my view it is understandable that the respondent believed that the podiatry treatment was being claimed in respect to left foot plantar fasciitis. What’s more the applicant does not appear to have at any point prior to the conciliation conference / arbitration hearing attempted to disabuse the respondent of that belief. The respondent did however clearly decline liability for podiatry treatment and in doing so referred to ss 59 and 60 of the 1987 Act. I am of the view that liability has clearly been declined and if I am wrong there has been no submission that the applicant is prejudiced by the respondent disputing liability on a different factual basis, and I am of the opinion in the circumstances that it is in the interests of justice for the respondent to have the opportunity to do so.
The applicant submits that the respondent has not adduced any evidence to suggest that provision of the orthotics was not reasonably necessary treatment for the back injury.
The applicant bears the onus of proof and therefore has to prove its case on the balance of probabilities. There is no onus on the respondent to prove that the claimed orthotics are not reasonably necessary.
In the applicant’s submission what is being sought is merely a replacement and updating of previously provided orthotics which have worn out and are no longer entirely appropriate.
It is the applicant’s evidence that she experienced significant weight gain following the spinal fusion surgery and tries to walk for exercise,[13] that her balance is “quite bad” and that she has been limping for a long time. That Dr Renata Abraszko, her treating neurosurgeon, had advised her to walk as much as possible however she finds this difficult due to the pain and restriction.[14]
[13] ARD p 6.
[14] ARD p 7.
On 30 October 2019 Dr Abraszko reported to Dr Tosson that she had recommended to the applicant that she walk 10,000 steps a day.[15]
[15] Applicant’s AALD 31 January 2024 p 88.
On 29 April 2020 Dr Abraszko reported to Dr Tosson that the applicant was not doing physiotherapy/hydrotherapy due to coronavirus but had been walking about 3km per day.[16]
[16] Applicant’s AALD 31 January 2024 p 97.
On 29 July 2020 Dr Abraszko reported to Dr Tosson that two weeks prior the applicant had fallen whilst walking injuring her right lower leg. She also started to have some back pain.[17]
[17] Applicant’s AALD 31 January 2024 p 101.
It is the applicant’s evidence that she was walking, her left leg was very weak, and she lost balance and fell onto the footpath landing on her right knee. She was in “immense” pain and returned home. The applicant could not recall the exact date of the incident. The applicant believes that the fall occurred due her left leg weakness.[18]
[18] ARD p 7.
It is the applicant’s evidence that the fall occurred when her left leg failed to move forward in a coordinated fashion with her right leg. The incident occurred whilst walking not running. Since the fall the applicant had experienced persistent right knee pain. It is the applicant’s evidence that she did not suffer from right knee pain prior to the fall.[19]
[19] Applicant’s AALD 15 April 2024 p 22.
Dr Abraszko reported to Dr Tosson on 26 August 2020 that the applicant had difficulties with walking and therefore she had a fall. In the opinion of Dr Abraszko, the fall was due to the applicant’s back injury and therefore they were asking the insurer to approve a visit to a podiatrist so that the applicant could be fitted with appropriate shoes.[20]
[20] Applicant’s AALD 31 January 2024 p 102.
On 26 August 2020 Dr Abraszko referred the applicant to a podiatrist for a shoe fitting as the applicant had undergone an L5/S1 spinal fusion and was suffering from pain in both her feet.[21]
[21] Reply p 42.
On 1 September 2020 the applicant attended on Ms Jessica Grimson, podiatrist, of Park Central Podiatry for assessment and recommendations on footwear. The applicant reported to Ms Grimson that it had been recommended that she increase her exercise to help her recovery which at the time involved a daily 30 minute walk. Ms Grimson noted that the applicant had suffered a fall the previous week on a relatively flat surface which had resulted in an injury to her right knee. Ms Grimson suggested that the applicant would benefit from custom orthosis to provide support and improve the applicant’s gait.[22]
[22] Applicant’s AALD 15 April 2024 p 21.
On 16 September 2020 the applicant attended on Ms Grimson for orthotics fitting.[23]
[23] Applicant’s AALD 15 April 2024 pp 20-21.
By email dated 16 September 2020 the podiatrist provided recommendations in respect to shoes.[24]
[24] Reply p 43.
On 13 October 2020 the applicant attended on Ms Grimson for an orthoses review. The applicant reported no problems and was advised to continue wearing the devices as much as possible.[25]
[25] Applicant’s AALD 15 April 2024 p 20.
On 3 May 2022 Ms Grimson reported[26] that the applicant had attended for an assessment of her orthoses and footwear. The applicant reported wearing her current orthosis and previously recommended footwear the majority of the time. The applicant reported that she had recently noted wear in the plantar aspect of her shoes which she was concerned about.
[26] ARD p 51.
The podiatrist observed uneven wear patterns on the sole of the shoes and the applicant’s orthoses were also observed to be worn and in the opinion of Ms Grimson were not providing the support and correction which they did when they were new.
Ms Grimson recommended that the applicant be recast for new orthoses as the current ones were no longer providing the required support. Mr Grimson also recommended new footwear.
The respondent submits that the applicants’ submissions rely on the premise that the respondent had previously accepted liability and paid for orthoses in 2020 and that the applicant is merely seeking to replace these orthoses which the podiatrist, Ms Grimson, had found were worn and not providing the same support.
In the respondent’s submission the applicant’s argument is misguided on two bases.
Firstly, that the applicant has provided no evidence to support that the respondent paid for the orthosis in 2020. In the respondent’s submission, the applicant in support of its argument, merely pointed to the notice given by the respondent pursuant to s 78 of the 1998 Act dated 14 November 2022 in which the respondent stated:
"We approved this podiatry appointment and the purchase of approved footwear as this was following your spinal fusion surgery and subsequent pain in your feet."
It is the respondent’s submission, without evidence, that the respondent has been unable to locate any evidence that they paid the costs of the earlier orthotics.
I accept the respondent’s submission that there is insufficient evidence that the respondent paid for the earlier orthosis in 2020. The applicant does not state that the respondent paid for the orthosis and there is no direct documentary evidence to the effect that the respondent paid for the orthosis.
In respect to the above mentioned passage in the notice given pursuant to s 78 of the 1998 Act on 14 November 2022. The passage does not refer directly to the orthosis but rather to the purchase of approved footwear. Whilst the term footwear could possibly have been used to refer to the orthosis as well as the recommended shoes this is mere speculation and does not appear to be supported by the email chain that appears at Reply pages 43-44. Those emails are between the applicant, the respondent and Park Central Podiatry and relate to the podiatrist’s recommendation in respect to the shoes and the process for the purchase of those shoes. The email chain makes no reference to orthotics.
Secondly, the respondent submits that even if orthoses were previously provided by the respondent in 2020, it is flawed reasoning to suggest that the respondent should continue to be liable for replacement orthoses in perpetuity.
I accept the respondent’s submission that even if the respondent had previously paid for the costs of orthotics, that of itself does not mean that the respondent is liable for the costs of replacement orthotics in perpetuity.
Pursuant to s 60 of the 1987 Act for an employer to be liable for the costs of medical or related treatment, the treatment has to be reasonably necessary as a result of an injury. Just because orthotics may have been reasonably necessary at a point in time due to the injury it does not mean that they remain so. It is a matter for evidence as to whether the replacement orthotics are reasonably necessary as a result of the accepted back injury.
In the respondent’s submission it is now over four years since the spinal fusion surgery and in its submission none of the medical evidence referenced by the applicant in her submissions relates the need for orthoses to pain in her feet caused by the spinal fusion surgery.
In the respondent’s submission, the applicant in her submissions only refers two pieces of evidence which speak to how the orthoses are said to relate to her back injury. The first is a letter of Dr Kurrie of 2 June 2022 which in the respondent’s submission states that the evaluation of footwear with the podiatrist in which orthoses were recommended was needed to support the applicant being mobile on her return to work. The second is the applicant’s statement evidence that "I need orthotics and shoe inserts for my spinal support."
Dealing with the applicant’s statement evidence first. In the respondent’s submission this assertion from the applicant is purely anecdotal and is not supported by any of the medical evidence filed. In the respondent’s submission little weight can be attached to the applicant’s assertion in the absence of medical opinion as to the reasonable necessity of the proposed treatment.
I place little weight on the applicant’s statement. The applicant is not a doctor or podiatrist and has no expertise to be able to give an opinion as to her need for the orthotics. The applicant could give evidence as to her personal experiences with orthotics and whether in her opinion the use of the orthotics had been beneficial and the reasons for that opinion, but has not done so.
In respect to the correspondence of Dr Kurrie of 2 June 2022 the respondent submits that this correspondence is two years old and is not contemporaneous to the applicant’s current needs. Further, in the respondent’s submission the applicant is not returning to work and therefore the orthosis are not reasonably necessary. I do not accept the respondent’s submission.
As previously noted, it is the applicant’s evidence that she experienced significant weight gain following the spinal fusion surgery. In October 2019 Dr Abraszko recommended to the applicant that she walk 10,000 steps a day a recommendation which the applicant adopted and followed. In April 2020 the applicant is recorded as walking about 3km per day. In about mid July 2020 whilst out walking the applicant has suffered a fall injuring her right knee. Whilst Dr Nouh recorded a history in February 2021 that the knee injury occurred whilst the applicant was running without any mention of a fall this is not consistent with the contemporaneous records and the applicant denies the history recorded by Dr Nouh. I am of the view that the history recorded by Dr Nouh is incorrect.

In the opinion of Dr Abraszko the fall was due to the applicant’s accepted back injury and therefore asked the insurer to approve a visit to a podiatrist so that the applicant could be fitted with appropriate shoes.
On 26 August 2020 Dr Abraszko referred the applicant to a podiatrist for a shoe fitting as the applicant had undergone an L5/S1 spinal fusion and was suffering from pain in both her feet. The referral to the podiatrist is very short being only a couple of lines. Whilst the referral does refer to pain in both feet it also refers to the L5/S1 spinal fusion.
Whilst Ms Grimson in September 2020 noted that the applicant had been referred for assessment and recommendations in respect to appropriate footwear Ms Grimson also suggested that the applicant would benefit from custom orthosis to provide support and improve the applicant’s gait. In providing her recommendations Ms Grimson noted that the applicant had reported to her that it had been recommended that she increase her exercise to help her recovery which at the time involved a daily 30 minute walk. Ms Grimson also noted that the applicant had suffered a fall the previous week on a relatively flat surface which had resulted in an injury to the right knee.
There is no evidence that the referral by Dr Abraszko to the podiatrist was for the treatment of any injury sustained in the fall whilst walking or that the recommendations of Ms Grimson were made for the treatment of any such injury.
I am of the view that the evidence supports that in 2020 the applicant required orthotics for two overlapping reasons. Firstly, the accepted back injury had negatively affected the applicant’s ability to ambulate, and it was hoped that the orthotics would assist the applicant with walking. Secondly as part of the rehabilitation for her back injury and to control weight gain which had occurred following the spinal fusion surgery the applicant had been advised to walk.
On 2 June 2022 Dr Kurrie reported to Ms Georgia Tallentire,[27] seemingly in response to an inquiry as to why the doctor had referred the applicant to a podiatrist, observing that the applicant’s treating neurosurgeon, Dr Abraszko, had noted that the applicant had gained weight during her back problems. Dr Kurrie wished to have the applicant’s footwear evaluated by a podiatrist as the applicant would need to be mobile on her return to work and would presumably be on her feet a lot. However, significantly the doctor also observed that adequate footwear may increase the applicant’s exercise tolerance, which would help her to lose weight and be generally healthier and happier.
[27] ARD p 50.
On 3 May 2022 Ms Grimson reported that the applicant reported wearing her current orthosis and previously recommended footwear the majority of the time. The podiatrist observed uneven wear patterns on the soles of the applicant’s shoes. The applicant’s orthoses were also observed to be worn and not providing the support and correction which they did when they were new.
Ms Grimson recommended that the applicant be recast for new orthoses as the current ones were no longer providing the required support. Mr Grimson had also recommended new footwear.
Whilst Dr Kurrie may have only asked for an evaluation of the applicant’s footwear Ms Gimson has provided an opinion as to the need for orthotics. As a podiatrist such an opinion is within her area of expertise.
As observed by the respondent Dr Kurrie did wish to have the applicant’s footwear evaluated as the applicant would need to be mobile on her return to work. However, this was not Dr Kurrie’s only reason for the applicant being assessed. Dr Kurrie also observed that adequate footwear may increase the applicant’s exercise tolerance which would help her to lose weight. Dr Kurrie had observed that the applicant’s treating neurosurgeon had noted weight gain with the applicant’s back problems. As previously noted Dr Abraszko had recommended walking to the applicant.
In my view the reasons for Dr Kurrie’s referral to the podiatrist in 2022 are very similar to the reasoning of Dr Abraszko in 2020 to assist the applicant to ambulate as a result of issues arising as a result of the back injury and to assist with her rehabilitation and weight control.
The need for the replacement orthotics is also supported by Dr Abraszko, who provided the initial referral to podiatrist, who reported to Dr Tosson on 21 June 2023 observing that the applicant was still suffering from back pain and in the opinion of Dr Abraszko the applicant required special insoles (orthosis) as recommended by a podiatrist.[28] The said report of Dr Abraszko to Dr Tosson was made approximately a year after the report of Dr Kurrie and is relatively recent being produced only 6 months prior to the filing of these proceedings in the Commission.
[28] Applicant AALD 31 January 2024 p. 157.
In the respondent’s submission the letter of Ms Grimson dated 3 May 2022 does not indicate why the orthoses are a reasonably necessary medical expense in relation to the applicant’s back injury. In my view the opinion of Ms Grimson needs to be read in context with the rest of the evidence. The opinions Dr Kurrie and Dr Abraszko provide the reasoning as to why the orthotics are reasonably necessary as a result of the accepted back injury. It is Ms Grimson opinion that the new orthotics are required as the old ones are worn out and no longer providing the support and correction required.
In the respondent’s submission no assistance is provided by the opinion of Dr Bodel as the doctor failed to engage in any reasoning process in respect to the need for the orthoses and accordingly.
I accept the applicant’s submission. Dr James Bodel, orthopaedic surgeon, provided forensic reports to the applicant. Those reports do not provide any opinion as to whether the provision of orthotics is reasonably necessary treatment due to the accepted back injury. Dr Bodel simply notes the use of orthotics as part of the applicant’s treatment. Dr Anil Nair, orthopaedic surgeon and A/Prof Philip Truskett, general surgeon, who provided forensic reports to the respondent also provided no opinion as to whether orthotics are reasonably necessary treatment.
For the above reasons I am of the view and find that the provision of orthotics is reasonably necessary treatment within the meaning of s 60 of the 1987 Act as a result of the accepted injury to the applicant’s lumbar spine

SUMMARY

I find that:
(a) the provision of orthotics is reasonably necessary treatment within the meaning of s 60 of the 1987 Act as a result of the accepted injury to the applicant’s lumbar spine.

[2024] NSWPIC 318

18 June 2024