Cheng v Krio Krush Basic Foods Pty Limited
[2021] NSWPIC 463
•16 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Cheng v Krio Krush Basic Foods Pty Limited [2021] NSWPIC 463 |
| APPLICANT: | Ling Ling Cheng |
| RESPONDENT: | Krio Krush Basic Foods Pty Limited |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 16 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim by Mandarin speaking woman for lump sum compensation for injuries caused by the nature and conditions of her work as a process worker over 16 years; no record of contemporaneous complaint; first recorded complaint six months after ceasing work, and for disputed lumbar spine injury some six weeks later; respondent medico-legal expert initially supported her, but section 78 notice denied liability for lumbar spine injury and notified applicant that further report being sought because of the lack of contemporaneous medical support; subsequent report not supportive for that reason; whether lack of contemporaneous complaint affected satisfaction of the applicant’s burden of proof; whether mention of a contemporaneous complaint to a practitioner from whom no evidence tendered affected standard of proof; whether section 78 notice should be stuck out; Held- respondent expert accepted applicant in first report as witness of truth; lack of contemporaneous complaint not decisive; applicant’s credit not impugned; nature of work consistent with onset of lumbar symptoms as with other accepted injuries; section 78 notice complied with statutory obligations; absence of report from identified medical practitioner a matter of concern, but not determinative; cultural customs and limited understanding a factor; award for the applicant; matter referred for assessment. |
| DETERMINATIONS MADE: | 1. The nature and conditions of the applicant’s employment injured her lumbar spine by aggravating her lumbar spondylosis. 2. I remit this matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases: (a) Date of injury: 5 May 2018 (deemed) (b) Matters for assessment: Cervical and lumbar areas of the spine Right upper extremity Left upper extremity (c) Evidence: (i) Application to Resolve a Dispute and attached documents; (ii) Application to Admit Late Documents dated 13 October 2021 and attached documents from the applicant; (iv) Application to Admit Late Documents and attached documents from the respondent. |
STATEMENT OF REASONS
BACKGROUND
Mrs Ling Ling Cheng, the applicant, brings an action against Krio Krush Basic Foods Pty Limited, the respondent, for lump sum compensation in respect of an injury that occurred on 6 May 2018.
A dispute notice was issued on 23 August 2021 and an Application to Resolve a Dispute (ARD) and Reply were duly issued.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) Did the applicant injure her lumbar spine.
PROCEDURE BEFORE THE COMMISSION
This matter was heard by video link on 19 October 2021. The applicant represented by Ms Lyn Goodman of counsel instructed by Ms Hayley Aldrich of Messrs Carroll & O’Dea. The respondent was represented by Mr Allen Parker instructed by Mr Christopher Michael. Ms Verona Li attended as a Mandarin interpreter and Ms Renee Slade attended from EML. 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) Application to Admit Late Documents dated 13 October 2021 and attached documents from the applicant;
(c) Reply and attached documents, and
(d) Application to Admit Late Documents and attached documents from the respondent.
Oral evidence
No application was made in relation to oral evidence.
FINDINGS AND REASONS
The s 78 notice dated 23 August 2021 identified that the insurer accepted the claims for injury to the cervical spine, right upper extremity (carpal tunnel syndrome) and left upper extremity (wrist). The claim in relation to the lumbar spine was disputed. The dispute notice referred at one stage to the lumbar spine as being a consequential condition resulting from the accepted injuries, but it was clear from the way the case was pleaded that the allegation was that the lumbar spine had also been injured in the course of Mrs Cheng’s employment, and the case proceeded on that basis.
The dispute notices
Three dispute notices were issued dated 9 November 2020, 10 December 2020 and 23 August 2021 respectively.[1] The first two notices were concerned with the applicant’s claim for weekly payments which was resolved by way of Consent Orders on 15 April 2021.
[1] ARD pages 4 and 39; Reply page 1 respectively.
The notice dated 23 August 2021 denied liability for injury to the lumbar spine. It referred to a report from the respondent’s medico-legal expert, Dr Frank Machart dated 20 June 2021, noting that his assessment regarding the accepted injuries did not result in more than 10% whole person impairment (WPI), and that accordingly Mrs Cheng was not entitled to lump sum compensation.
10.In relation to the claim for the lumbar spine, the notice said[2]:
[2] Reply pages 4-5.
“Further, we dispute liability in relation to your allegation of injury to the low back on the basis that you ceased duties on 6 May 2018 and that lower back complaints commenced in April 2019. On the basis of the contemporaneous material, we do not accept that you suffered injury to your lumbar spine during the course of employment with the insured.
We have requested a supplementary report from Dr Machart in relation to the lumbar spine. Dr Machart’s rooms have advised that due to Covid-19 a Supplementary Report cannot be provided for at least 9 weeks. We are therefore making this decision on the basis of the information presently available but we will be prepared to review our position upon receipt of Dr Machart’s Supplementary Report.”
Mrs Cheng’s statement
11.Mrs Cheng made a statement dated 1 February 2021. She said that she was a native Mandarin speaker and did not speak much English at all and thus had to use a Mandarin interpreter. She is a married woman who lives with her husband David and their 30 year old son Kevin. David, Mrs Cheng said had a higher grasp of English than her and in fact he read the statement to her in Mandarin before it was signed.
12.Mrs Cheng migrated from China in 1996 with her husband. She had been a secretary in China but in Australia she firstly obtained employment as a packer in a paint brush factory for five years. She then moved to process working.
13.She began her employment with the respondent in 2002 and worked there until she ceased employment in 2018. She worked on the production line in a team of between one and three people. She was in charge of a particular aspect of the process which involved repetitive and intensive manual work. The job involved lifting large bags of chicken salt, beef booster and other commodities onto benches. These bags originally weighed 25 kgs each but after about five years the weight was reduced to 20 kgs which nonetheless, Mrs Cheng said, was still extremely heavy.
The bag had to be lifted onto the trolley or the bench and the chicken salt and beef booster etc had to be packed into various containers, bottles and jars. These then had to be packed into boxes. Once the boxes were full they had to be packed onto pallets. Once packed with salt they weighed between 500 gm and 3 kg. Mrs Cheng was required to weigh them by putting them on scales and then seal the containers and place them in the box. Each box weighed between 5 to 80 kg and she had to lift that box and put it on the pallet. Mrs Cheng did that by herself without any support. This work was repetitive and done at a fast pace on the process line.
15.Mrs Cheng remembered first experiencing physical pain in about 2014 when she had been working as a process worker for about 12 years. She said that at the end of the day she would start noticing sharp pain in her neck and in her lower back. She said she also noticed it as she was working. The pain then started in her arms as well and she noted numbness in her arms and hands which would keep her awake at night.
16.Mrs Cheng was right handed and that was the hand that first became symptomatic. She then began to rely on her left hand. She began to become anxious about her work. She said[3]:
“I was extremely concerned that I could be fired at any point or any time and so I worked through my pain.”
17.Mrs Cheng said that her pain became worse and began impacting on her work, as she began being hurried by other staff.
18.She saw her general practitioner in May 2018 and she has not returned to work since, having completed 16 years as a process worker.
19.Mrs Cheng said she had never experienced any pain in her neck, lower back, arms, hands or fingers prior to starting work with the respondent.
Mrs Cheng bought an action for weekly payments in 607/21 which was discontinued on 15 April 2021 with a notation that the respondent would pay weekly benefits from 20 February 2021 to 10 April 2021.
[3] ARD page 101, paragraph 22.
21.In her statement (which was mainly concerned with her claim for weekly payments) she criticised her general practitioner Dr Jiang Li. She said that she strongly disagreed with his assessments of her work capacity and that she felt ignored and excluded at case meetings including Dr Li. She did not allege that there were any language difficulties with Dr Li.
Medical evidence
22.Mrs Cheng was treated by Dr Peter Khong, Neurosurgeon and Spine Surgeon. She also retained Dr Terry Kwong, Consultant Physician and Rheumatologist as her medico-legal expert.
23.Mrs Cheng also relied on the opinion of Kylie Warry, Rehabilitation Counsellor.
Dr Khong
24.Dr Khong first reported on 11 March 2019. He took a history of the onset of neck pain whilst Mrs Cheng was working on the process line, the neck pain worsening in 2014. Bilateral hand numbness then became symptomatic with bilateral hand numbness and all fingers, worse on the right[4].
[4] ARD page 114.
25.Dr Khong took a history that Mrs Cheng ceased work on 23 August 2018.
26.Dr Khong examined Mrs Cheng for neurological signs in the upper limbs and lower limbs. He noted an MRI of the cervical spine dated 6 October 2018 which showed pathology at C5/6 and C6/7 in the form of degenerative disc disease, which included a right sided C5/6 herniation indenting the spinal cord. He did not mention the lumbar spine.
27.On 13 May 2019 Dr Khong reported to Dr Li again. He repeated the history and said[5]:
“Mrs Cheng has multiple other complaints. She gets dizzy when she turns her head. She also has lower back pain.”
[5] ARD page 117.
28.A bone scan taken on 1 April 2019 showed disc vertebral increased uptake at L5/S1 and facet joint increased uptake at L3/4 and L5/S1 facet joints. In view of that result Dr Khong went on to organise an MRI scan.
29.Although his next report lodged was dated 1 April 2021, Ms Kylie Warry reproduced a section of another report of Dr Khong dated10 November 2020, which had not been lodged. Ms Warry said relevantly[6]:
“Mrs Cheng also complains of ongoing low back pain. Her MRI demonstrates severe degenerative disc disease at L5/ S1 which demonstrates increased uptake on the bone scan. Again her work likely caused an acceleration and exacerbation of these degenerate degenerative changes.”.
[6] ARD page 77.
Dr Kwong
30.Dr Terry Kwong first reported on 14 January 2021[7]. He took a consistent history that after beginning work in 2002 on the process line, she developed numbness in her hand and pain in the right side of her neck in 2014. Dr Kwong also noted:
“…. She also had gradual onset of back pain. She did not report [the] pain to her employer. She continued to work as she was worried that she would lose her job….”
[7] ARD page 66.
31.Dr Kwong also took a history that she had seen Dr Santos in Narwee who had prescribed Panadol and asked her to stop work, which she did for one day and then returned as she was worried she would lose her job.
32.Dr Kwong also took a history that another general practitioner (GP) had been seen in 2018 – Dr George Tang. No evidence was lodged from those practitioners, and a perusal of Mrs Cheng’s statement does not reveal any mention of either Dr Santos or Dr Tang.
33.Dr Kwong diagnosed “the aggravation of lumbar spondylosis”[8] and said[9]:
“She has underlying degenerative spinal disease which was aggravated by her duties as a packer with repetitive lifting. In addition, she also had disc herniation at C5/6 level with right C6 nerve root compression documented on MRI of her cervical spine. She also had disc herniation at L5/S1 level with disc material contacting both S1 nerve roots.
Her right carpal tunnel syndrome and left de Quervain’s tenosynovitis are related to the repetitive use of her hands and wrists as a packer.
I was able to talk to her in Mandarin and she presented in a straight forward manner. I found no evidence of abnormal illness behaviour. She had objective evidence (MRI) of cervical disc protrusion with right C6 nerve root impingement and lumbar disc protrusion with bilateral S 1 nerve root irritation. She also had objective evidence (on ultrasound) of left de Quervain’s tenosynovitis. Nerve conduction study also provided electrophysiological evidence of right carpal tunnel syndrome.”
[8] ARD page 70.
[9] ARD page 71.
34.Dr Kwong made a further report on 1 April 2021 in which he repeated the diagnosis. In answer to a question about causation, he said:[10]
“In my opinion, Mrs Cheng’s current condition is due to the nature and conditions of her employment with Krio Krush Basic Food.
..In my opinion, Mrs Cheng’s employment is the main contributing factor to her current physical injuries.”[10] ARD page 368.
35.In a further report of 5 October 2021, Dr Kwong noted that he had seen the reports of the respondent’s medico-legal expert, Dr Frank Machart, Orthopaedic Surgeon, dated 20 June 2021 and 22 September 2021. He noted that both Dr Machart and Dr Khong took a similar history that the onset of back pain dated back to 2016. He noted that Dr Li had written to “the physiotherapist” on 7 January 2019 that Mrs Cheng had been sent for an opinion on her “neck/back pain from work related injury”[11].
[11] Applicant’s ALD page 1.
36.Dr Kwong advised that he disagreed with Dr Machart’s conclusion. He said[12]:
“In my opinion, she has degenerative lumbar spine disease, which was aggravated by her duties that required repetitive bending, lifting and twisting of her lumbar spine. As a result, she developed a central disc protrusion at L5/S1 level with disc materials touching her S1 nerve roots. I was able to speak with her in Mandarin and took a detailed history.”
[12] Applicant’s ALD page 2.
Ms Kylie Warry
37.Ms Warry, Rehabilitation Counsellor, reported to the applicant’s solicitors of 27 January 2021.[13] Mrs Cheng had been referred for a vocational assessment at the request of her solicitors. Ms Warry’s report was comprehensive, and primarily concerned with Mrs Cheng’s ability to earn. Ms Warry made some interesting comments about cultural beliefs within Mrs Cheng’s community.
[13] ARD page 73.
38.The history recorded by Ms Warry (through Mr Cheng, and a mandarin interpreter) was:
“Mrs Cheng advised that through the course of her employment she noticed an increase in pain in her neck and low back. She added that the role was quite heavy (especially in the first 5 years she was lifting 25kg bags of product (chicken salt) repeatedly throughout her shift). Then after this the duties changed to 20kg bags of produce (chicken salt) being lifted repeatedly throughout the shift. She worked full time on a process line and actions were required to be fast and repetitive.
Mrs Cheng said she had symptoms for well over 12 months (it may have been as early as 2014) but she stated that pushed herself to continue working as she feared losing her job. She stated that she did not take time off work, and her symptoms continued to get worse until she could not manage any more. She saw her GP in May 2018 and has not returned to work since.”
39.Ms Warry noted that Mrs Cheng had struggled to understand the rehabilitation process and Workers Compensation due to her limited English skills. Interpreters were not always available, and she attended Dr Li alone, as her husband worked. Ms Warry said:[14]
“She denied a social support network and said she speaks to family, but they do not speak about her health. She advised this is a normal cultural custom.”
[14] ARD page 75.
Clinical notes
40.The clinical notes from the Hurstville Medical Practice were lodged[15]. They demonstrate that Dr Li at that practice was first consulted on 13 October 2018. The entry recorded:[16]
[15] ARD page 138.
[16] Reply page 149.
“History:
Pt has chronic neck pain and arms numness and wrists and pain from her physical work and had C-spine
MRI and wrist USS and showed C-spine OA and N compressing and wrist USS and showed soft tissues
injury and she felt last 6/12 has been worse
Examination:
Musculo-Skeletal:
Bilateral, neck: toe: tender.A work related injury.”
(As written).
41.The first mention of Mrs Cheng’s low back was on 31 December 2018. It read, relevantly:[17]
“Examination:
lower back nad neck has tender”
[17] ARD page 150.
Dr Machart
42.On 20 June 2021 Dr Frank Machart, Orthopaedic Surgeon reported to the respondent’s solicitors. He took a consistent history of the type of work Mrs Cheng was doing and noted the complaints of the development of symptoms in 2014, being a gradual onset of pain in the cervical spine and the lower lumbar spine, the radial aspect of the left wrist and numbness and swelling of both hands. He also took a consistent history that Mrs Cheng continued work without medical restrictions until the time she ceased in 2018[18]. He noted the MRI of the lumbar spine of 31 May “2016” which showed severe spondylosis at L5/S1 and mild spondylosis above.[19]
[18] ARD page 384.
[19] ARD page 385 in fact the MRI was taken in 2018.
43.Dr Machart considered the opinions of Dr Khong and Dr Kwong and diagnosed[20]
“Constitutional lumbar spondylosis, aggravated by work.”
[20] ARD page 386.
44.When asked to specifically comment on the allegation of injury to the lumbar spine, Dr Machart noted[21]:
“Symptoms in the lumbar spine were reported to have started in 2016, and gradually increased until 2018……”
[21] ARD page 388.
45.Dr Machart assessed the lumbar spine at 7% WPI from which he deducted 1/10th giving a rounded figure of 6% WPI.[22]
[22] Ibid.
46.In a subsequent report of 20 September 2021 Dr Machart was asked to review that opinion on the following basis[23]:
[23] Respondent’s ALD page 2.
“Would doctor kindly identify any evidence of low back complaints prior to April 2019 and provide a supplementary report. Alternatively, please assume that the worker ceased duties on 6 May 2018 and that lower back complaints commenced in April 2019, and on the basis of these assumptions, please provide your supplementary report in relation to causation in respect of the worker’s allegations of back injury sustained on and prior to 6 May 2018 (deemed date of injury).
Initial complaint of lower back pain was made in April 2018 [sic – 2019], that is after she stopped working 12 months earlier. I could then not relate the lumbar spondylosis symptoms to her work. This is a constitutional condition. If there was causation or aggravation from work, then I expected such symptoms to be evident during her work hours. She reported that this was the case. In absence of contemporaneous evidence this narrative lacked medical support. I could not conclude that the symptoms of the lumbar pathology relate to the DOI 06/05/2018 (deemed date of injury).”
Dr Machart confirmed the earlier history he had taken, but thought that the reduction in the weights Mrs Cheng was required to carry was from 25 kg to 4 kg.
Submissions
Mr Parker
48.Mr Parker submitted that although Mrs Cheng had attended her GP on many occasions following her ceasing work on 6 May 2018, she did not make any complaint regarding her lower back until 31 December 2018[24]. Even then, Mr Parker submitted that the entry, “lower back nad neck has tender,” was ambiguous, in view of the well-known interpretation that the initials “nad” were shorthand in medical practice for “no abnormality detected.” In referring to the date of the initiating injury as being 2016, Mr Parker submitted that the later complaints to medical professionals in 2020 did not constitute contemporaneous evidence that there had been low back symptoms.
[24] ARD page 150.
49.The evidence showed, Mr Parker said, that Mrs Cheng was a married woman whose adult son was living at home. No statement from either her husband or her son was before the Commission that corroborated Mrs Cheng’s complaints that she was suffering low back symptoms as well as her symptoms in her upper limbs. It would have been easy, Mr Parker submitted, to obtain such evidence and “fill this gap.”
50.Mr Parker understood that Dr Li spoke Mandarin, and therefore he submitted that there had not been any language difficulties between Mrs Cheng and himself.
51.Accordingly, there was no evidence as to any low back symptomatology prior to 31 December 2018, which was at a time when the applicant had not only ceased employment since May 2018, but many years after she completed doing the heavier work she complained of prior to 2016. Accordingly, the applicant had failed to discharge her onus of proof regarding the lumbar spine.
Ms Goodman
52.Ms Goodman made a number of forceful submissions that the s 78 notice of 23 August 2021 should be “struck out.”. Ms Goodman described the document as “absolutely extraordinary.” This was on the basis that the s 78 notice did not reveal the full extent of Dr Machart’s opinion of 20 June 2021 - particularly that he accepted liability for the lumbar spine.
53.Ms Goodman said that this was not the conduct of a model litigant and, as I understood her submission, the insurer’s denial of liability in the face of that unambiguous opinion was reprehensible. Ms Goodman referred to decisions of DP Roche that made it very clear that s 78 notices needed to be very clear and expressed in a way that would make it easy for an applicant to understand. Ms Goodman later kindly emailed those decisions to the Commission. They were Mateus v Zodune Pty Ltd,[25] Fairfield City Council v Arduca[26] and Salame v QF Cabin Crew Australia Pty Ltd[27].
[25] [2007] NSWWCCPD 227.
[26] [2015] NSWWCCPD 166.
[27] [2021] NSWPIC 4.
54.Dr Machart’s opinion did not give the insurer a reason to dispute the lumbar spine, Ms Goodman argued, and the issue of a s 78 notice based on his report was completely contrary to policy. Moreover, Ms Goodman said, there had been three dispute notices prior to the issue of that of 23 August 2021, none of which disputed liability in respect of the back. The insurer had made weekly payments for the full130 weeks on the basis of all injuries, she alleged. In answer to a question, Ms Goodman said that the notices did not mention injury to the lumbar spine, rather than specifically accepting liability for it.
55.Ms Goodman also conceded that the notice did refer to the lack of contemporaneous complaint as being the reason that the insurer did not accept liability, and that accordingly a supplementary report had been sought from Dr Machart. Ms Goodman acknowledged that the notice also stated that the Covid-19 emergency meant that the supplementary opinion not be obtained for nine weeks.
Ms Goodman then referred to Dr Machart’s second report of 22 September 2021. Ms Goodman noted an inconsistency in the history taken that the lifting was reduced from 25 kg to 4 kg, whereas the accounts of the applicant and other histories indicated that the reduction was from 25 kg to 20 kg.
57.Ms Goodman referred to Dr Machart’s diagnosis that Mrs Cheng suffered lumbar spondylosis which had been aggravated by work but that Mrs Cheng had worked unrestricted until May 2018. His comment that the first complaint of back pain was in April 2019, accepting that he was in error in nominating 2018, was not correct, as had been conceded by Mr Parker, the first complaint of back pain being recorded in December 2018.
58.Ms Goodman referred to the clinical notes of 31 December 2018. She submitted that the word “nad” could not be interpreted as Mr Parker had suggested, as it would not make sense. She referred to an entry in the clinical notes of 13 October 2013 that first reported the neck and arm symptoms, saying it was only six weeks later that she also complained of back pain. Although Mrs Cheng had said her first attendance on GP had been in May 2018 in her statement, in fact it was October 2018.
59.Ms Goodman suggested that Dr Jiang Li did not speak Mandarin in view of the criticism made by Mrs Cheng of Dr Li’s assessment of her work capacity and the fact that she felt ignored in the case meetings she had regarding her capacity. Ms Goodman said that Ms Warry confirmed that impression. The cultural customs in her community would mean that she would not discuss her health with her family, and that she was accordingly isolated.
60.These were very important reasons which explained why there was no support from her family, Ms Goodman said. It also explained some of the difficulties Mrs Cheng was having with her rehabilitation provider and her general practitioner.
61.Ms Goodman then addressed the medical evidence. She constructed an argument which relied on the payment of weekly payments, for which Mrs Cheng had received her full entitlement. The basis of the argument was that because when the insurer issued its work capacity decision in its dispute notice of 9 November 2020, the insurer referred therein to a certificate dated 16 September 2020, which in turn included a reference to the lower back, the insurer was aware of that injury[28]. Moreover, the work capacity assessment itself noted the recommendation by Dr Khong for the subject surgery.[29] Ms Goodman conceded that the dispute notice referred to an injury to the cervical spine only.
[28] ARD page 5.
[29] ARD page 23.
62.The Consent Orders on 15 April 2021, constituted a recognition that the lumbar spine had also been injured. This meant, as I understood Ms Goodman, that I could draw an inference that the injury to the low back had been accepted, notwithstanding that the dispute notices had indicated only an injury to the cervical spine.
63.Ms Goodman stated that her main submission however was that the s 78 notice of 23 August 2021 should be “struck out”. Ms Goodman did not agree that the insurer had thereby indulged in some chicanery, she simply submitted that the s 78 notice was incorrect, and the insurer could not “in all conscience” rely on Dr Machart’s first report when the report supported the applicant’s claim.
64.With regard to the substantive claim, Ms Goodman referred to the applicant’s statement and submitted that Mrs Cheng did in fact see a GP as early as May 2018, whilst she was still at work. That was when she left work, Mrs Cheng had said.
65.I was referred to the treatment history after Dr LI had been consulted in October 2018. The reports of Dr Khong and Dr Kwong were referred to. Dr Warry’s report was again discussed in the context of her explanation as to Mrs Cheng’s cultural difficulties.
66.Ms Goodman submitted that there had been no attack on Mrs Cheng’s credit, and she noted that Mrs Cheng had been employed with the respondent since 2002. There was no dispute as to the nature and conditions of her employment, whose description by Mrs Cheng had not been challenged.
Mr Parker in reply
67.Mr Parker submitted that the s 78 notice of 23 August 2021 did acknowledge that Dr Machart had been asked for a supplementary report, but that due to COVID 19 it could not be obtained for at least nine weeks. Mr Parker submitted that the reason therein given for the denial was accurate, as there was no contemporaneous evidence of low back complaints.
68.Mr Parker responded to Ms Goodman’s allusion to the relevance of weekly payments by referring to more contemporaneous certificates of 13 May 2019 that did not mention the low back.
69.Mr Parker referred to the evidence that the applicant had seen two GPs in May 2019, noting that no evidence had been obtained from either. There was accordingly a gap in the contemporaneous evidence, which affected the applicant’s onus of proof.
DISCUSSION
70.The issue for determination is whether Mrs Cheng has satisfied her onus of proving that the nature and conditions of her employment caused an injury to her lumbar spine. The basis of the denial by the respondent was that there was no corroborative support within the contemporaneous evidence.
71.It was suggested that there was some inconsistency in the applicant’s statement, as Mrs Cheng stated that she had seen “my General Practitioner” in May 2018, and had not since returned to work. It was assumed by counsel that the GP concerned had been Dr Li, and that since Mrs Cheng did not see him until October 2018, that Mrs Cheng had been mistaken. Mrs Cheng did not name the GP she saw in May 2018, and it was common ground that she ceased work in May of 2018. Accordingly, it is unlikely that she was referring to Dr Li when she made that statement, as she linked the visit to her cessation of work. The history taken by Dr Kwong was that Mrs Cheng had seen two other GPs at a time that was more contemporaneous with when she ceased work. One of the GPs was identified as a Dr Santos in Narwee, whom Dr Kwong recorded was consulted whilst the applicant was still working for the respondent. Dr Kwong noted that Dr Santos asked Mrs Cheng to stop work, which she did for one day, but returned to work as she was worried that she would lose her job.
72.Dr Kwong said that she saw the other GP, Dr Tang, in 2018. A search of the evidence showed that on 7 September 2018 an ultrasound of the left wrist was performed by a radiologist, Dr S McCormack, on referral from a Dr George Tang.[30] Dr Tang is not otherwise mentioned, and his attention appears to have been confined to the left wrist.
[30] Reply page 16.
73.Thus there is a measure of support for Mrs Cheng’s statement that she did seek medical help whilst still doing her duties with the respondent. Whether she saw Dr Tang at a time earlier than September 2018 is a moot point. It may be that Mrs Cheng did not consult a GP very often, and did not have a regular GP before she began to consult Dr Li. Dr Li’s notes on 13 October 2018 indicated that Mrs Cheng consulted him after six months of worsening symptoms in her neck and upper limbs, although she appears to have consulted Dr Tang around that time as well.
74.Mr Parker submitted that the failure by the applicant to lodge any evidence as to the apparent earlier attendances on Dr Santos and Dr Tang would affect whether I had been persuaded that she had satisfied her onus, and I agree that is it is a matter that calls for consideration in my eventual determination.
75.However, whilst such evidence would corroborate her assertion, and evidence that she had complained about low back condition would have assisted her case even more, in considering all the evidence I do not think that without it, her case must fail.
76.I was assisted in my deliberations by Ms Warry. I accept her evidence as to the cultural beliefs in Mrs Cheng’s community, and that Mrs Cheng explained to her that it was not a normal cultural custom to discuss the state of her health with her family. I accordingly draw no adverse inference from the absence of statements from Mrs Cheng’s family.
77.I also accept Mrs Cheng’s evidence that she suffered an onset of symptoms in her lumbar spine along with problems of chronic neck pain whilst she was still at work. There is no reason to disbelieve her statement and I agree with Ms Goodman that the only attack on Mrs Cheng’s credit was that there was no corroborative support. This is hardly surprising if, as the evidence tends to show, she rarely attended a GP.
78.I accept that the applicant was extremely concerned that she could lose her job if she sought medical help, and the evidence of Dr Kwong as to her seeing Dr Santos on the one occasion tends to support her evidence.
Similarly, I accept Ms Goodman’s submission that there has been no challenge to the applicant’s evidence as to the heavy and repetitive duties Mrs Cheng performed as a process worker. Her statement was detailed, and demonstrated that she was required to lift weights of up to 25 kg for her first five years, and I accept that the reduction in weight to 20 kg nonetheless did not significantly alter the nature of her work, which continued to be repetitive and heavy. That she has held down the same job since 2002 is also a matter that I take into consideration.
80.I reject Ms Goodman’s submissions that the s 78 notice should be struck out. I do not accept that the insurer is bound by the terms of a report it served on the applicant when it expressly reserved its position in relation to a particular admission within that report, where it relied on other named reasons to explain why it did not accept that admission. The denial of liability regarding the cervical spine was also based on an acceptance of injury, but the denial was based on a sub-threshold assessment of WPI.
81.I do not accept that the continued denial of liability in the face of Dr Machart’s then supportive opinion, which the insurer would have known it had served on the applicant, was misleading. By the time the notice was issued, the insurer had realised that there was no contemporaneous support for the assumptions made in Dr Machart’s first report, and it was entitled to seek further clarification. It explained as much in the notice.
82.It is true that an applicant might well wonder why the insurer would actually deny liability before it obtained the further opinion, but that too was explained by reference to Covid-19 and the amount of delay that would entail. Ms Goodman suggested that the s 78 notice was served out of time in any event, but did not pursue that submission, saying that she could be corrected. I infer that the insurer preferred to give the applicant the benefit of Dr Machart’s original opinion without prejudicing its own position.
Dr Machart’s first report would indicate that he accepted, as do I, that Mrs Cheng was a truthful person. The history taken on 20 June 2021 was consistent with that relied on by Dr Khong and Dr Kwong. It was also consistent with the applicant’s statement. Dr Machart may have been influenced by the error he made in ascribing 31 May “2016” to the date of Ms Cheng’s MRI scan when it was taken in 2018, although he did not mention it in his second report.
84.Dr Machart’s change of opinion was influenced by the question he was asked, which I have included above. His assumption was that Mrs Cheng’s initial complaint to her GP was in April 2018, which was again an error, as his instructions were that the first complaint was in April 2019. In any event his instructions were erroneous, as the first complaint was made to Dr Li on 31 December 2018.
85.It was common ground that Mrs Cheng suffers pathology in her lumbar spine. She has degenerative disc disease, and all medical opinions initially accepted that Mrs Cheng’s duties had aggravated that condition. Dr Machart stated that he would have expected the symptoms Mrs Cheng was experiencing from her lumbar spondylosis to have been evident during her work hours, and he acknowledged that Mrs Cheng had indeed told him that they were. I do not agree with Dr Machart that simply because “this narrative lacked medical support,” that Mrs Cheng should be disbelieved. Not everyone who suffers symptoms reports them, particularly if, as was the case with Mrs Cheng, she wanted to keep her job.
86.To turn briefly to other matters, Ms Goodman made submissions as to the relevance of the dispute notice of 9 November 2020, on the basis that the medical certificate referred to by the insurer of 16 September 2020 mentioned the applicant’s lumbar spine.
87.The transcript will show that there was some interchange between myself and Ms Goodman as to the purpose of these submissions. Ms Goodman eschewed any suggestion that the reference to the lumbar spine was an admission, but restricted the reason she referred to this matter to being an awareness by the insurer that there was, in addition to the claim for injury to the cervical spine, an allegation that the lumbar spine had also been injured, and the Consent Orders of 15 April 2021 were therefore relevant.
88.In that respect, as it turns out, she was correct. Although counsel did not refer to it in terms, there was a further dispute notice issued on 10 December 2020. Whilst that notice purported in its intituling to be concerned with the cervical spine,[31] the reasons given for the denial were all concerned with the lumbar spine.
[31] ARD page 40.
89.Other medical practitioners were mentioned to those that were the subject of submissions by counsel. Dr Ron Muratore (whose report of 13 August 2019 was before me) and Dr John Sheehy both were relied on by the insurer in declining liability for payment of weekly payments for the injury to the lumbar spine.
90.Thus, although Ms Goodman was correct that the respondent was on notice that the claim for injury to the lumbar spine was also at some time the subject of a claim for weekly payments, it does not avail her, as when the insurer was aware of the claim, it issued its denial of liability on 10 December 2020.
91.In any event these submissions, dealing as they were with events of 2020, did not engage with the central issue relied on by the respondent – that there was no contemporaneous support for her claim that she injured her lumbar spine whilst at work.
92.As to the issue of any communication difficulty, I do not think I can draw any inference that Dr Jiang Li and the applicant had a language problem. There is no evidence beyond the assumption relied on by Ms Goodman, and in my view that does not raise an inference that Dr Li did not speak Mandarin. It more probably raised an inference that Mrs Cheng thought that Dr Li was not supporting her. I assume there had been an independent interpreter at those meetings on very few occasions because there was no difficulty with the language communication between Dr Li and Mrs Cheng. Certainly neither Dr Li nor the applicant mentioned such an issue.
93.Counsel have suggested different interpretations of the word ‘nad’ in Dr Li’s entry of 31 December 2018, but I do not think much turns on the answer. Whether or not there was no abnormality detected on examination does not change the fact that the lower back was examined, so it follows that there must have been a complaint about it. I keep in mind the need for caution when dealing too literally with the content of clinical notes.[32]
[32] See e.g. Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50.
94.For these reasons I am persuaded that the applicant injured her lumbar spine whilst employed by the respondent.
SUMMARY
95.The nature and conditions of the applicant’s employment injured her lumbar spine by aggravating her lumbar spondylosis.
96.I remit this matter to the President for referral to a Medical Assessor for an assessment of WPI on the following bases:
(a) Date of injury: 5 May 2018 (deemed).
(b) Matters for assessment: (i) Cervical and lumbar areas of the spine;
(ii) Right upper extremity,
(iii) Left upper extremity.
(c)Evidence: (i) ARD and attached documents;
(ii) Application to Admit Late Documents dated 13 October 2021 and attached documents from the applicant;
(iii) Reply and attached documents, and(iv) Application to Admit Late Documents and attached documents from the respondent.
0
3
0