Clarke v Local Farm Fresh Pty Ltd t/as Big River Milk
[2023] NSWPIC 379
•31 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | ||
Citation: | Clarke v Local Farm Fresh Pty Ltd t/as Big River Milk [2023] NSWPIC 379 | |
| APPLICANT: | Rebecca Connelly Clarke | |
| Local Farm Fresh Pty Ltd t/as Big River Milk | |
| Member: | John Wynyard | |
| DATE OF DECISION: | 31 July 2023 | |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for continuing weekly compensation and declaration that proposed surgery was reasonably necessary; whether contemporaneous clinical notes inconsistent with applicant’s statements; whether medicolegal expert opinion complies with Makita v Sprowles; whether voluntary work indicated a capacity for suitable employment: Held – reliance on clinical notes to prove a negative unsuccessful in challenging whether onus met; Qannadian v Bartter Enterprises Pty Limited considered and applied; respondent in difficult position as no expert evidence tendered on its behalf and inference taken that it would not have assisted the respondent’s case; applicant’s expert evidence acceptable; voluntary job not a real job; Wollongong Nursing Home v Dewar considered and applied; applicant’s certification of no current work capacity accepted; Nzobakenga v Costaexchange Pty Ltd and Chea v Woolworths Group Limited applied; awards made pursuant to section 37 and 38; proposed surgery reasonably necessary. | |
| determinations made: | The Commission determines: 1. The respondent will pay to the applicant the sum of $574.08 per week from 22 June 2021 to 7 February 2022 pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act). 2. The respondent will pay to the applicant the sum of $574.08 per week from 8 February 2022 to date and continuing pursuant to s 38(2) of the 1987 Act. 3. The respondent will pay for the costs of and associated with the surgery recommended by Dr Seex in his application of 30 October 2020. 4. The respondent will pay the applicant’s s 60 expenses on production of accounts, receipts and/or HIC Notice of Charge. | |
STATEMENT OF REASONS
BACKGROUND
Rebecca Connelly Clake, the applicant, brings an action against Local Farm Fresh Pty Ltd t/as Big River Milk, the respondent, for weekly compensation and the payment of s 60 expenses with regard to injuries claimed to the cervical and lumbar areas of the spine. The Application to Resolve a Dispute (ARD) also claimed injuries to the left and right arms, and the left leg, but these claims were discontinued at the outset of the applicant’s written submissions.
Dispute notices were issued and the ARD and Reply were duly lodged.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) injury to the cervical spine;
(b) injury in the form of the aggravation to Ms Clarke’s degenerative lumbar spine;
(c) entitlement to weekly compensation, and
(d) whether proposed surgery was reasonably necessary.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was heard in person on 4 April 2023. Ms Lyn Goodman appeared instructed by Ms Bibi Laggas of Milicevic Solicitors and the respondent was presented by Mr Simon McMahon instructed by Mr Karl Maakasa and Mr Simon Jassen. Mr Alexander Grindrob for the insurer.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents;
(b) Application to Admit Late Documents (ALD) dated 1 February 2023;
(c) ALD dated 29 March 2023, and
(d) Reply and attached documents.
Oral evidence
No application was made in relation to oral evidence.
FINDINGS AND REASONS
Amendments
On 10 February 2023 I amended the claims as follows:
“4. I amend the claim for weekly benefits compensation in the ARD form to claim ongoing payments.
5. I amend the injury details in the ARD form as follows:
(a) Delete the date ‘1/01/2015’.
(b) Type of injury to read ‘personal injury on 12 August 2019 and/or aggravation of a disease with a deemed date of injury of 12 August 2019’.”
The claims accordingly are for personal injury to the cervical and lumbar spine sustained on 12 August 2019 and/or the aggravation of Ms Clarke’s underlying disc disease in both spinal areas with the same deemed date, 12 August 2019.
Dispute notices
Three dispute notices were issued.
On 22 December 2020 liability was declined for medical and related treatment pertaining to the accepted cervical spine injury.
On 28 April 2021 the declinature was confirmed, and liability was also denied for injury to the lumbar spine.
On 30 August 2022 a s 287A Notice issued confirming the previous denials, and also denying liability for a proposed lumbar surgical procedure.
Ms Clarke statements
Ms Clarke made statements dated 19 September 2019,15 December 2022[1] and 22 March 2023.[2] A further document was lodged which contained photographs of the work site, it would seem.[3]
[1] ARD pages 17 and 1 respectively.
[2] ALD dated 29 March 2023, page 1.
[3] ARD pages 10-17.
Ms Clarke was born in New Zealand and left school after year 10. She worked as a roustabout in the shearing gang and when she was about 26 commenced work with Fonterra, a dairy company. She commenced as a cleaner and worked there for about 30 years during which time she progressed to the position of manager. She moved to Australia in late 2014 when she was about 56. She commenced work with the respondent in early 2015 as a supervisor. She worked Monday Wednesday and Friday of each week, and she listed her duties at [7] of her 15 December 2022 statement:
“• Supervising workers
· Place milk bottles onto the filling line
· Remove milk bottles from the filling line
· Filling milk crates with milk bottles
· Loading 20 kg milk crates onto a trolley and moving the fully laden trolley
· with flat tyres to the dispatch area.
· Loading the milk crates onto trucks
· Cleaning of production machinery
· Assembling plant machinery
· Repetitive Capping of bottles
· Flushing of plant equipment
· Capping milk bottles
· Checking bottle caps are secured tightly”.
Ms Clarke said that the work required prolonged standing as when a run commenced she could not stop work. She explained the different runs that were required for the different types of milk. She said that the plant equipment needed to be flushed after each run. She also said it was necessary to screw on some milk caps manually.
Ms Clarke recounted the history of a back condition that she had been coping with since her time with Fonterra in New Zealand. She said:
“3. During my time at Fonterra I suffered an injury to my lumbar spine. I underwent lumbar spine surgery in about 1999 and further surgery in about 2004. I injured my right knee at work and underwent a knee replacement…”
In the latter part of 2015 Ms Clarke began to experience what she described as “additional pain in my back” after completing a lot of repetitive heavy lifting. She treated that pain by resting and taking pain relief medication. However her worsening condition caused her to seek medical assistance in about September 2015 when she was prescribed Mobic by a general practitioner (GP), Dr van Den Ende.
Ms Clarke continued work, saying “I do not believe complaining will benefit me and I tend to get on with things.” She said that she learned to deal with her pain and how best to manage particularly her back pain. Her priority was to maintain her ability to work, and she only sought medical advice if she experienced symptoms which were out of the ordinary.
In November 2015 Dr van Den Ende referred Ms Clarke to Dr Timothy Siu, neurosurgeon, whom she saw on 15 December 2015.[4] After undergoing conservative treatment she came to surgery on 14 November 2016 by way of an L4/5 laminectomy and rhyzolysis with Dr Siu.
[4] ARD page 78.
During 2015 and 2016 Ms Clarke continued working her usual shifts and performing her usual duties, using pain relief medication. She persevered because, being a New Zealander, she was not entitled to any government benefits, and she needed her job.
Following the surgery of 14 November 2016, Ms Clarke returned to work but noted that her back pain increased in April 2017 as she performed her work duties. She kept working in the hope that she had simply suffered an exacerbation, but the pain did not subside. She was told by Dr van Den Ende in December 2017 that she needed a further operation as “once my back shifts another 1 mm and I am in a wheelchair.”[5]
[5] ARD pages 3-4.
Ms Clarke underwent a further spinal injection which improved her pain levels but only for a short time. After a holiday between March and April 2018 Ms Clarke returned to work performing her usual duties and using her prior experience of dealing with her back condition, did her best to protect it. She said however that the work was heavy and repetitive, and it was impossible to perform without straining her back. She continued with pain medication and home exercises. In March 2019 she was also prescribed medical marijuana when she was not at work.
On 12 August 2019 Ms Clarke injured herself whilst preparing the machines for the day’s work. Her first statement dated 19 September 2019 was taken by the insurer’s investigator.
Ms Clarke described her injury in that statement:[6]
[6] ARD from page 22.
“49 I finished work on Friday the 9th August 2019 at about midday. had the week end off and I returned to work at midnight on Sunday the 11th August 2019 and worked through the night.
50 I was Just working on my own. The work I was doing was putting the bottles down the line to be labelled. I also had to put the plant back together as the conveyer belt had not been put back in place. I had to wait until another worker came on at 3.30am.
51 So I worked on the filling station. I did this between 1.30am and 2.30am.
52 When I got up to put the last piece of the plant up on the filling station, the air valve was about to fall out of my hand.
53 The filling station is beside the conveyer belt. The conveyer belt is 1.2metres high. At the time the conveyer belt was not on the runners which support the conveyer belt.
54 The filling station is a vat which has a diameter of about 600milllimetres. It is about 500millimetres tall.
55 The top of the filler station is about 1100 millimetres above the conveyer belt.
56 A sealing ring has to be placed around the top of this filling station. There is then a steel piece that goes on top of the filling station.
57 On the right hand side when facing the filling station there is a valve. This valve is round and has a diameter of about 150millimetgres.
58 There is a metal plat [sic. plate] which extends between the conveyer and the filling station. There is a gap of about 150 millimetres between the conveyer and the metal plate.
59 I was standing with my right foot across the metal plate and the edge of the conveyer. My left foot was on the metal plate.
60 All workers at the plant have always attended to this duty by standing on the equipment in the manner I have described.
61 While I was standing up there with the valve in my right hand, the back of my right foot slipped down into where the conveyer normally is.
62 I let go of everything and held onto the valve. I slipped backwards and swung around to my left to try and regain my balance.
63 During this time I had the valve held securely in my right hand. The valve is very valuable and if it is broken the whole plant stops work.
64 When I came around I used my left hand to grab hold of a rail that is located in the vicinity at a height above the conveyer which is about the same level as my neck from the top of the conveyer.
65 As I swung around the area of my body just below my neck struck the rail.
66 This rail has a diameter of about thirty millimetres. When I hit my back on it, it hurt me severely. I felt the thud and then pain.
67 I got my foot out and I got down. I was feeling sore in my back and neck area.
68 I was wearing my work clothes which are gum boots, shirt and track pants. I was wearing a high vis vest and a hair net.
69 I continued to work. I was the only person there at this stage.
70 Gary came to work at 3.30am. As soon as I saw him I told him that I had an incident and had injured my back and neck.
….
77 I have also attended physio treatment. I still have pain in my back and neck.”
In her statement of 15 December 2022, Ms Clarke said that she fell on to the concrete floor. She felt immediate pain in her neck, both arms and back. She panicked, as she had not experienced neck pain as severe and she was alone. She took her time in getting up and trying to recover from the shock of the fall. By the time a fellow worker arrived the neck pain was still not easing and although she tried to continue with her duties, her employer advised her to go to Grafton Hospital. She said:[7]
“… I work with significant back pain every day so I was more concerned about the new pain in my neck and arms and not being able to work which was my greatest concern...”
[7] ARD page 5 at [38].
Ms Clarke had a new GP, Dr Taylor, whom she consulted after she had been advised at the Hospital not to work for a week. Ms Clarke was anxious to return to work for financial reasons, and Dr Taylor certified her fit for two hours with a lifting restriction of 5kg. This certification was unsatisfactory to the respondent, whose agent told her that she could only return to work she was certified fit for usual duties. She returned to Dr Taylor and asked to be certified for usual duties, but Dr Taylor was unable to do so. At that stage Ms Clarke’s weekly compensation had ceased and she became upset and depressed. She was referred to a psychologist.
In January 2020 Ms Clarke underwent chiropractic treatment, which she found to be of some benefit for both her neck and her back. In February 2020 payment of all benefits ceased. Ms Clarke was referred to Associate Professor (Dr) Behzad Eftekhar, neurosurgeon in April 2020, and a further MRI was arranged.[8]
[8] ARD page 85,
On 18 May 2020 Ms Clarke was assessed by Dr Kirychenko for the insurer.
A CT guided injection into Ms Clarke’s back did not improve her pain and she was complaining about pins and needles in her right foot and toes. She spoke to Dr Taylor who advised her that surgery would be arranged with Dr Eftekhar. Although Ms Clarke was anxious to undergo the surgery, she was told that it would not take place until September 2020, and Dr Eftekhar referred her to Dr Seex, neurosurgeon, for a further opinion. Dr Seex saw Ms Clarke around October 2020, and recommended the surgery, but in the meantime in December 2020 she was advised that the insurer would not meet the cost.
Ms Clarke described the restrictions and disabilities currently experiences with both her neck in her back, but notwithstanding those difficulties, found herself volunteering at the Australian Community Care Network Grafton. She explained that this is a not-for-profit organisation which provided food and groceries for those experiencing financial hardship. She said she volunteered for about two hours a time when she felt up to it. She was able to sit and stand as needed and she usually assisted as a cashier. She said she did her best to manage her activities and she tried not to give in to the persisting pain. She said:[9]
“My ‘good days’ are the days when I am not bedridden and am able to walk and move around my home. My ‘bad days’ after when I am bedridden and need assistance with personal care such as going to the toilet. My partner David assist me at home on those days. I experience ‘Bad days’ more frequently and for that reason I feel I have no other choice but to have the back surgery.”
[9] ARD pages 8-9.
In her statement of 22 March 2023, Ms Clarke said that she commenced the voluntary work as “I knew I had to help myself and what I need to do to make myself better.” She did so as with the approval of Dr Taylor. She said that doing voluntary work got her out of the house with a purpose and “made me feel like myself again.”
Mr Clarke worked as a cashier when she attended the Centre. She would attend depending on how her back and neck were feeling. Sometimes she would go in once a week or not at all, other times she would attend more regularly. Ms Clarke said that there was a fire at the Centre on 28 December 2022, and it had not reopened.
Ms Clarke said that she continued to experience constant pain in her back and neck, and to take pain relief medication. She continued to experience radiating pain into her right leg, and occasionally she would trip, having lost feeling in her toes.
She had undergone bilateral carpal tunnel release surgery on 16 December 2022. She said:
“When I applied for work with Big River Milk I informed them that I had a back injury for which I underwent surgery. I was told that they needed my expertise and they would be able to accommodate my duties to suit my back condition.”
Contemporaneous material
The Mahoe Medical Clinic notes recorded Ms Clarke’s consultations between 5 January 2010 and 21 October 2014, when was living in Te Awamutu, New Zealand.[10]
[10] ARD page 150 and following.
The records of the Grafton GP Super Clinic and South Grafton Medical Centre were lodged.[11]
[11] ARD pages 93 and 127 respectively.
The South Grafton Medical Centre notes of 6 December 2017 recorded that Ms Clarke was complaining that her back was “still a problem.” Dr van den Ende’s entry read:[12]
“? at job but no manual work
Lifting bricks at home
Plans to build”
[12] ARD page 136.
In his first consultation with Ms Clarke on 25 February 2019, Dr Chris Taylor of the Grafton Super Clinic noted that there had been an L5/S1 fusion and plating 20 years earlier, and that Ms Clarke had undergone further surgery in Coffs Harbour, which did not go well. Ms Clarke had been told that she would need further surgery, but not until it got worse.[13]
[13] ARD page 94.
The entries by Dr Taylor thereafter prior to the subject injury were concerned with continuing complaints by Ms Clarke about her back condition. On 4 March 2019 Dr Taylor noted that Ms Clarke worked “lifting heavy boxes managers Big River Milk.”[14]
[14] ARD page 94.
On 11 March 2019, Dr Taylor noted that over the last few days Ms Clarke had been suffering low back pain “++ at night.” The entry said:
“- fine during day, intense pain radiating from lumbar region into both legs that really waking from sleep, normal following morning, further episode last night.”
On 19 March 2019 Ms Somayyeh Firouzi at the Centre recorded:
“works as supervisor at milk factory, 16 hours a day 3/7, standing on feet.”
Ms Firouzi appeared to be concerned with dietary matters.
On 19 March 2019 also, an entry was made by Mr Brendan Moore, who was concerned with exercise physiology. He recorded:
“first back injury in 1999 at work fell down a flight of steps landed on her back side. Back was fused L5 S1. Since this time Pt has had a number of surgeries to fix her lower back pain. Pt now is suffering from lower back pain and sciatica, still working three days for 16 hours per day.”
Notes from Grafton Base Hospital dated 12 August 2019 were lodged.[15] They showed that Ms Clarke attended the Emergency Department complaining of “neck pain” after a “fall from standing height, landed awkwardly on the left side…. Felt immediate pain in neck and bilateral arms/hands.” Previous medical history (PMH) was noted as including “2x lower back operations ?what” and “Chronic neck pain.”
[15] ARD page 90.
The certificate issued at the hospital described the work -related injury as “whiplash of neck from fall.”[16]
[16] ARD page 191.
In answer to a templated question as to how the injury was related to work, in handwriting the following appeared:
“Fall at workplace while carrying object. Fell awkwardly and had immediate pain following this.”
The same handwriting completed the next templated question as to “any pre-existing factors which may be relevant to this …injury” said:
“chronic back pain and some cervical degeneration with nerve root stenosis. Made acutely worse from falling.”
Dr Taylor on 15 August 2019 took a history of the fall on “12.9.19”. The entry said:[17]
“Big River Milk Factory
-12.9.19 [sic] twisting injury carrying object, awkward trip, neck pain and tingling both upper arms stop swelling around the C5 – 6 region.
-Seen In ED – CT scan no report yet – suggests CT-spine degenration with nerve root stenosis on a capacity form.
-Today no better, power okay, sensory loss right spine around C5 – six, tingling sensation lateral shoulder/upper arm (C5 – 6 region)…”
[17] ARD page 101.
On 8 October 2019 Mr Moran noted:[18]
“Pt arived for her session and reported that she fall 7 weeks ago and injured her cervical spine (under workcover). Pt been doing the home ex program until injury to her neck. Now is doing Physio Ex. Up until the injury the Pt back was feeling much beter. Pain levels had decreased quite a bit preety much next to nothing.”
As Written.
[18] ARD page 103.
On 15 October 2019 Dr Taylor recorded:
“was made redundant, WorkCover will continue to pay until new job can be found. Report from physio review – appears to indicate past all capacity assessments (certainly nothing in comments to denote otherwise) and this is in keeping with [Ms Clarke’s] view – no pain or sensory changes. Is fit to return to full duties.”
On 14 November 2019 Dr Taylor recorded that Ms Clarke was in a stressed condition as a result of the insurer ceasing payments. He said:
“…. Her work cover note has been amended to reflect that she can pursue work for eight hours a day, five days a week stop the insurer will be able to continue financial support which is of great relief to [Ms Clarke].”
On 6 April 2020 Dr Taylor recorded relevantly:[19]
“…2 Lower Back
-in bed 3 days, now little more mobile. Analgesia ineffective….
3. C-spine
-no changes. No issues”
[19] ARD page 114.
On 20 April 2020 Dr Taylor made the same entry regarding the cervical spine.
Dr Taylor’s entry for 11 May 2020 stated that Ms Clarke had an initial meeting with Dr Eftekhar. Dr Taylor noted:
“still unable to sit down during consult – any setting induces pain right lateral leg. still avoiding any lifting. hobbling in consult. no real change previous. seems easier standing however.”
(As written).
Also on 11 May 2020 Dr Taylor wrote to the insurer.[20] He said:
“Rebecca’s capacity to work reflects her ability to engage in employment. At this point in time she is unable to perform more than the restrictions noted. This is secondary to her lower back problem…”
[20] ARD page 68.
Dr Taylor noted that Ms Clarke’s “initial musculoskeletal injury” had resolved as had been noted by the physiotherapy teams discharge letter of 30 October 2019. Dr Taylor referred to Ms Clarke’s acute deterioration in her mental health due to her financial concerns, but said the mental health problems did not currently restrict her ability to work. He said:[21]
“Her lower back problem flared subsequently. She has known a degenerative lumbar spine with discogenic disease. She had been employed in a manual role in a Milk plant.
… It became an issue affecting her ability to work on the 23 January 2020 and was reflected in her WorkCover capacity to work documentation at this point. Unfortunately it has been recalcitrant and she has been referred to a Neurosurgeon for further input.
As has been discussed with your team on several occasions I report her prima facie medical condition and she is currently not fit for preinjury duties based on her lower back condition.”
[21] ARD page 68.
On 25 May 2020, Dr Taylor noted:[22]
“discussed case – IM consultant trying to establish if the neck injury and the back injury pain flair are related. Chronologically there is a gap between events, but two factors should be considered
1-the work will undoubtedly have made her more susceptible to flares of her chronic back condition
2-the neck injury may well have resulted in postural changes increasing the forces through her lumbar spine”
(As written).
[22] ARD pages 117-118.
Dr Timothy Siu
Dr Siu supplied five reports to Dr van den Ende during the time he had management of Ms Clarke’s treatment. On 15 December 2015 he reported that Ms Clarke presented with a three month history of low back and right buttock pain radiating into the lateral aspect of the right side, calf and the dorsum of the foot. He said:[23]
“…. She describes that three months ago she woke up with sudden onset of severe low back and right leg pain and since then she has been suffering from this pain with no improvement…”
[23] ARD page 78.
Dr Siu noted that Ms Clarke had previously undergone a lumbar spine fusion in New Zealand in 1999 and a laminectomy “reportedly at L4/5 in 2013.”
Dr Siu noted that Ms Clarke was working as the manager of a dairy company “that involves long hours standing…”
In his second report of 9 February 2016, Dr Siu stated that an MRI scan of the lumbar spine “demonstrates some lateral recess stenosis at L4/5 bilaterally. The L5/S1 region is obscured by metal artefact as expected. A lumbar x-ray from the same date demonstrates an L3/4 and L4/5 spondylolysisthesis. The L3/4 subluxation appears more pronounced with extension.”
Dr Siu noted that a right L5 perineural injection performed on 21 December 2015 did not provide any symptomatic relief.
Dr Siu operated on Ms Clarke on 14 November 2016, performing a L4/5 laminectomy and rhyzolysis. He reported on 5 January 2017 that the right sciatic pain had improved following surgery and Ms Clark was able to stand for a prolonged period of time without any pain. He noted that lying down and sitting however remain painful.[24]
[24] ARD page 82.
On 7 February 2017 Dr Siu issued his final report.[25] He noted that Ms Clarke complained of residual pain although her overall condition had improved following surgery. The residual pain was mainly precipitated by prolonged sitting or by turning movement in bed. Dr Siu thought that the residual pain was “likely related to her L4/5 spondylolysisthesis,” Dr Siu noted that the follow-up MRI/CT scan showed some “subtle L4/5 anterolisthesis when comparing to her pre-operative study…” Dr Siu recorded that Ms Clarke was keen on exploring further definitive treatment to manage her residual pain, and he referred her to John Hunter Hospital for consideration for a lumbar fusion.
[25] ARD page 83.
Dr Seex
Associate Professor (Dr) Kevin Seex, neurosurgeon wrote to Dr Eftekhar on 30 October 2020. Dr Seex took an accurate and detailed history. He addressed the radiological picture, saying:[26]
“I didn't have access to her previous imaging but the previous reports clearly show she has got spondylolisthesis and a dynamically unstable spondylolisthesis at 4/5 with a 12mm what's reported as a Grade 1 dynamically unstable spondylolisthesis. I have reviewed her MRI which shows uncovering of the disc at this level and the spondylolisthesis, 3/4 has also got significant degeneration. 2/3 doesn't look too bad, there is a mild disc bulge
l have discussed with Rebecca I think there are obviously concerns about further surgery here. If further surgery is required it certainly should be fusion surgery given that she has got a dynamically unstable 4/5 and significant back pain and given the degeneration at 3/4 this should be included. Whether you include 2/3 or not I think is difficult. My inclination here is just to instrument L3 to 51 but she would require a pre operative EOS to make sure that her sagittal balance is appropriately addressed. Her 5/1 fusion looks as though it was a posterior only and definitely sagittal balance needs to be reconsidered in any further surgery to minimise the chances of further problems. She is adamant she would like to go ahead with this and l think this is reasonable...I have been through the pros and cons of surgery with her, she seems quite well informed about this so we will seek approval for this and take things from there...”
[26] ARD page 87.
On 30 October 2020 Dr Seex also wrote to the insurer seeking approval for the surgery.
Dr Bodel
Dr James Bodel, orthopaedic surgeon, advised as medico-legal expert for the applicant on 31 March 2022.[27] He took a consistent history, albeit being subject to a typo. He said:
“She had a long history of troubles with her lower back. This begins with an injury to her back when working in New Zealand for Fonterra Co-op Group Pty Ltd. In January 1999, she had a decompressive laminectomy and fusion at the LS/Sl level. She had further surgery on the back at the L3/4 leve l in April 2014, again before working at Big River Milk, and she has had knee replacement surgery in 2006 and 2010 in the right knee. All of this occurred prior to her employment at Big River Milk.
After starting work at Big River Milk, she had a further flare-up of her lower back pain and had injections of cortisone under ultrasound guidance on 23 December 2015.
In 2016, she had an L4/5 laminectomy and rhizolysis done by Dr Timothy Siu.”
[27] ARD page 61.
Dr Bodel put the year ‘’2014 before the year 2006 in what otherwise appeared to be a chronology of events. In fact Ms Clarke had further surgery on her back in 2004, and it would appear that a typographical error was made in the date 2014, which should have read ‘2004.’.
Dr Bodel said:
“The diagnosed condition is a soft tissue musculoligamentous injury to the neck and the aggravation, acceleration, exacerbation and deterioration of underlying disease process, being the lumbar spinal disc disease, and that has been caused by this accident.”
SUBMISSIONS
Applicant
As indicated, the parties filed written submissions. Ms Goodman submitted that weekly payments were sought, as was a declaration that the surgery proposed by Dr Seex was reasonably necessary.
Ms Goodman referred to the history given by Ms Clarke in her statements regarding the long history of problems and treatment for her back. Ms Goodman referred to the incident on 12 August 2019 and submitted that the description given by Ms Clarke was supported by Dr Taylor as being an awkward fall. Miss Goodman observed that the statement dated 19 September 2019 had been taken by the insurer and the mechanism of injury would have been clear in Ms Clarke’s mind at that time.
Whilst the respondent disputed that Ms Clarke had injured her lumbar spine in that event, it was submitted that there was no doubt that Ms Clarke had a pre-existing injury to her back, and that Ms Clarke stated she had injured it, as well as her neck, in the fall. Ms Goodman referred to the certificate issued by the Grafton Base Hospital which also confirmed injury to the back., as did the entry of 8 October 2019 in the Grafton Super Clinic notes.
Ms Goodman submitted that the nature of the lumbar injury was an aggravation of Ms Clarke’s pre-existing condition. She referred to Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 amongst other authorities.
Dr Bodel supplied expert evidence to support Ms Clarke’s claim, it was submitted. Ms Goodman noted that the respondent had not tendered any medical evidence.
Ms Goodman made submissions regarding weekly compensation, which are incorporated in my reasons. She submitted that a continuing award could be made pursuant to s 38 of the Workers Compensation Act 1987 (1987 Act). She referred to Nzobakenga v Costaexchange Pty Ltd [2023] NSWPIC 11, and Chea v Woolworths Group Limited ]2022] NSWPIC 26 in that regard.
Ms Goodman submitted that the Commission would have no difficulty in declaring that the proposed surgery by Dr Seex was reasonably necessary.
Respondent
Mr McMahon submitted that the contemporaneous documentary evidence did not support Ms Clarke’s claim that she injured her lumbar spine in the event of 12 August 2019. He also submitted that the accepted injury to the cervical spine on that date had since resolved.
In support of his submission that the lumbar spine had not been injured, Mr McMahon referred to the records of the Grafton Base Hospital (which have been reproduced above), noting that no report of pain in the lumbar spine had been reported.
It was submitted that the account given by Ms Clarke in her second statement of 15 December 2022 had not been corroborated by the contemporaneous medical material. Mr McMahon noted that the first record of complaint about the lumbar spine was on 5 November 2019.
With regard to the report of Dr Bodel, Mr McMahon submitted that there had been no engagement with the mechanism of injury in Dr Bodel’s opinion. He further submitted that Dr Bodel’s opinion was little more than a recitation of the language used in the statutory scheme.
Dr Bodel’s opinion offended the principles in Makita v Sprowles [2001] NSWCA 305 and accordingly should be given no weight, it was submitted.
With regard to the question of whether the nature of the injury was a disease process, namely the aggravation of Ms Clarke’s previous injuries, Mr McMahan submitted that the clinical notes did not support the claim.
The evidence showed that the injury to the cervical spine had resolved, Mr McMahon submitted. There was no evidence in the clinical notes mentioning Ms Clarkes’ neck after October 2019, and Dr Taylor said that her neck condition had by then resolved, Mr McMahon said. The applicant’s assertions about continuing symptoms in her cervical spine were therefore baseless, Mr McMahon said. He submitted that Dr Bodel’s opinion that Ms Clarke suffered from an aggravation of her pre-existing cervical condition was of little weight.
Mr McMahon referred to reports from Dr Kirychenko and Dr Perotti, but as they had not been tendered, I put those submissions to one side.
Mr McMahon submitted that Ms Clarke had not shown that she had no current work capacity. Her entitlements pursuant to s 37 had ceased on 7 February 2022, and her admission that she volunteered at the Grafton Australian Community Care Network for about two hours at a time between September 2021 and 28 December 2022 (when it burnt down) demonstrated a capacity to perform suitable duties. Mr McMahon submitted that this activity contradicted the certification issued by Dr Taylor, who had said that Ms Clarke had no current earning capacity at the same time as she was doing her voluntary work. Mr Martin suggested that Ms Clarke was able to work four hours per day over a five-day week and earn $500 per week.
With regard to s 38 of the 1987 Act, Mr McMahon submitted that Ms Clarke had not made a proper application pursuant to the section. There had been no formal application by Ms Clarke, and no evidence had been adduced relevant to such an application.
Mr McMahon made some submissions regarding whether the surgery proposed by Dr Seex was reasonably necessary. He submitted that there had been only one consultation with Dr Seex, and that Dr Seex had an incorrect history. Mr McMahon submitted that there was no explanation as to what symptom the proposed surgery was designed to address.
DISCUSSION
The evidence establishes that Ms Clarke has suffered from a symptomatic back condition since 1999 when she was employed by Fonterra in New Zealand. She underwent a decompressive laminectomy and fusion operation on her lumbar spine conducted by Dr Cowley it would seem at Waikato Hospital in January 1999. She came to further lumbar surgery whilst in New Zealand in about April 2004. She also came to her L4/5 laminectomy and rhizolysis on 14 November 2016 with Dr Siu.
Dr Siu confirmed on 9 February 2016 that an MRI scan of 22 December 2015 demonstrated significant pathology. Ms Clark had some lateral recess stenosis at L4/5 bilaterally. A lumbar X-ray also showed an L3/4 and L4/5 spondylolisthesis, with the subluxation at L3/4 more pronounced with extension.
Dr Seex on 30 October 2020 reported a dynamically unstable spondylolisthesis at L4/5 with a 12mm Grade 1 instability. Ms Clarke’s MRI showed the uncovering of the disc at L4/5, and significant degeneration at L3/4.
Ms Clarke has also had knee replacement surgery in 2006 and in 2010. She also underwent bilateral carpal tunnel release in December 2022.
It is a testament to Ms Clarke’s work ethic that she has never stopped working until she was unable to return following her injury on 12 August 2019, when Dr Taylor refused to certify her as fit for pre-injury duties. Ms Clarke said that she worked in pain for such a long time that she just wanted to get back to work so she did not lose her job. A certificate for pre-injury duties was the only basis on which the respondent would accept her back, and Dr Taylor refused to authorise such a clearance. I have no doubt that Ms Clarke would have returned to her pre-injury duties had Dr Taylor not been so determined.
The respondent has denied liability for injury to both the cervical and lumbar areas of the spine, whilst the other claims involving both arms and the right leg have been discontinued. As has been seen, the focus of the respondent’s defence has been the contemporaneous evidence.
Firstly, the respondent laid great emphasis on the notes from Grafton Base Hospital when Ms Clarke had driven herself there on the morning of 12 August 2019. It is clear from the General Notes that the complaint made by Ms Clarke to the Emergency Department staff was of “neck pain.” Indeed, Ms Clarke said herself something to that effect.
As indicated above, she said that she worked with significant back pain every day, from which I infer that she did not complain about her back pain on admission, as she was concerned about her neck, or as she put it, “I was more concerned about the new pain in my neck and arms and not being able to work which was my greatest concern.” Ms Clarke’s evidence confirmed that her priority had always been to be able to work. On 12 August 2019 she had been finding a way to keep working notwithstanding that her lumbar spine had been surgically treated on at least three occasions. There is accordingly nothing sinister about her apparent failure to mention her back condition at the Emergency Department at that time.
I say apparent, because it would appear when a fuller history had been taken, that Ms Clarke did complain about symptoms in her back as well. The WorkCover certificate issued by Dr Adam Ellerby at Grafton Hospital Emergency Department on 12 August 2019, as indicated, related the injury to work (“fall at workplace”) and Ms Clarke’s chronic back pain (as well as some cervical spine degeneration) to the injury. This was described as a “pre-existing factor which may be relevant.” In view of the prior history concerning Ms Clarke’s lumbar spine I am satisfied that the extensive and significant history of her back condition was indeed a “pre-existing factor” and that the description of Ms Clarke’s back condition as being “chronic back pain” establishes that Ms Clarke probably complained of actual back pain when giving her details to Dr Ellerby.
The respondent relied heavily on the absence of comments in the clinical notes to prove a negative. The logic relied on was that it would be reasonable to expect the applicant to complain of, for instance, her back condition between 12 August 2019 and 5 November 2019, (the latter date Mr McMahon said was the first recorded complaint about back symptoms) where none had been recorded. It followed that if there were no complaint recorded, then none had been made. Similarly with the absence of any complaint within the clinical notes about the cervical spine condition after October 2019, it followed that none had been made. In both situations the respondent argued that Ms Clarke’s assertions to the contrary could not be accepted, or at least deprived her evidence of sufficient probity to satisfy her onus of proof.
In Mason v Demasi [28] (Mason) Basten JA at [2] urged caution when dealing with inconsistencies based upon clinical notes. Mason has been cited with approval in the Commission in Qannadian v Bartter Enterprises Pty Limited[29] where DP Michael Snell said:
“35. Mason is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:
‘It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).’
37. The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence.”
[28] [2009] NSW CA 227
[29] [2016] NSWWCCPD 50
Bearing in mind these factors I do approach the respondent’s submissions with some caution. I refrain from drawing the inference advanced by the respondent as to the conclusiveness of the Emergency Department records from the Grafton Base Hospital, as the WorkCover certificate issued by Dr Ellerby raises the opposite inference – that Ms Clarke did report back symptoms at the same time.
Equally, it is quite arguable that there was no complaint about Ms Clarke’s lumbar spine in Dr Taylor’s notes up until 5 September 2019 simply because Ms Clarke had a long familiarity with her back symptoms and had learnt over the years how to manage them. This is clearly the inference can be drawn from her statement that her priority was to maintain her ability to work and that she only sought medical advice if she experienced symptoms which were out of the ordinary. Given Ms Clarke’s extensive history of working with her back complaint, I accept that explanation as being both reasonable and probable. It is also apparent from the relationship Ms Clarke described with Dr Taylor that she was anxious to return to work and was disappointed that he would not turn a blind eye to her condition.
I have read with interest the respondent’s submissions to the effect that the aggravation of Ms Clarke’s back condition had not been caused by the fall on 12 August 2019. However, I have no reason to doubt Ms Clarke’s account of the effect the fall had on both her cervical spine and her lumbar spine. I accept her evidence at [40] of her second statement that at the time she was told that she needed to be fit for pre-injury duties, her neck and back, relevantly, were still very painful. The respondent’s submissions, based as they are on the absence of complaint at various times within the clinical notes, I find to be speculative and no basis for questioning the veracity of Ms Clarke’s statements.
The respondent submitted that the report of Dr James Bodel was of little weight. He firstly criticised Dr Bodel’s description of the injury itself. The history recorded by Dr Bodel was:[30]
“This lady suffered an injury at work on 12 August 2019.
She was assembling a conveyor next to a filling machine. She states that her ‘foot slipped causing her to fall on the conveyor whilst holding a valve {150mm) in her right hand.’ In attempting to disentangle herself from the conveyor, she was required to twist around and then drop down onto the concrete floor, landing on her left-hand side and managed to get up very slowly. The matter was reported.
She was taken to Grafton Base Hospital, complaining of the neck and shoulders, and at that stage she did not mention the lower part of the back, as she had a past history of back pain and it wasn't all that different…”
[30] ARD page 63.
There was no failure by Dr Bodel to engage with the mechanism of injury. It can be seen that the description is consistent with that first given to the insurer’s investigator when the matter was fresh in her mind, and it explained the lack of obvious complaint at the Emergency Department of Grafton Base Hospital.
Dr Bodel was also criticized for the succinct way in which he summarised Ms Clarke’s case. His diagnoses of a soft tissue musculoligamentous strain to the neck and the aggravation acceleration exacerbation and deterioration of the lumbar spinal disc disease have not been challenged by expert evidence, notwithstanding that Ms Clarke has been assessed by Dr Kirychenko and Dr Perotti, as indicated above. No explanation has been advanced as to why that evidence has not been tendered, and I am accordingly satisfied that neither expert advice would have assisted the respondent’s case.
Accordingly I am satisfied that Ms Clarke injured the cervical and lumbar areas of her spine on 12 August 2019. The soft tissue musculoligamentous injury to the neck remains current, and the disc disease in Ms Clarke’s lumbar spine remains aggravated.
WORK CAPACITY
Section 32A of the 1987 Act provides relevantly:
"‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
Ms Goodman submitted that the current WorkCover certificates have continued to certify Ms Clarke as having no current work capacity. She relied on certificates dated from 25 June 2021 (the claim for weekly payments commences on 22 June 2021) until 4 September 2022. Ms Goodman submitted that although the certificates referred only to the neck, the evidence as to incapacity as a result of the lumbar back condition combined to make an overwhelming inference that Ms Clark has no current work capacity.
In fact a perusal of most of those certificates demonstrate that although they are headed “whiplash neck from awkward fall – likely acute exacerbation of cervical spondylosis,” within the body of each certificate is a chronology covering from 30 October 2019 to 25 June 2021, which indicated considerable treatment for the back and lumbar radicular symptoms.
Ms Goodman noted that Dr Bodel had advised that Ms Clarke was not suitable for her pre-injury work but submitted that the severity of Ms Clarke’s disabilities in fact rendered her not able to find any employment. As to the voluntary work Ms Clarke had been performing, Ms Goodman noted that the Centre had burnt down on 28 December 2022 and not reopened. Ms Goodman referred to Wollongong Nursing Home v Dewar[31] in submitting that in all the circumstances it will be difficult to find a real job that Ms Clarke could do. Ms Goodman referred to Ms Clarke’s basic education, and her long history of working for the dairy company in New Zealand, after being part of a shearing gang as a roustabout.
[31] [2014] NSW WCC PD 55.
Ms Goodman referred to s 32A, above, and submitted that in light of the matters referred to in the previous paragraph, and the fact that Ms Clarke is almost 64 years of age that Ms Clarke has no current work capacity. Ms Goodman alluded to the fact that the respondent had not put any medical evidence on.
It followed, Ms Goodman argued that the provisions of S 38 of the 1987 Act applied relevantly:
“(1) A worker's entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if--
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
(3A) …
(4) …
(5) …
(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.
(7) …
(8) ...”
Ms Goodman argued accordingly that on the authority of Nzobakenga and Chea the Commission had jurisdiction to make an order pursuant to s 38.
The first question then is as to whether Ms Clarke has had no current work capacity as at the date of the s 38 commencement date, 7 February 2022.
As I have stated earlier in these reasons, Ms Clarke has an admirable work ethic. After each of her three significant bouts of spinal surgery, she returned to work. The nature of her work was very busy, if not arduous in part, as the list of duties at [8] above demonstrates. It is noteworthy that Ms Clarke has had unceasing symptoms in her back for a very long time. She “had learned how to manage pain,” she said, and “tended to get on with things.” She said that there was no benefit in complaining. She said she “worked with significant back pain every day”, and that to work was her greatest concern.
The radiological picture of Ms Clarke’s is of some significance. In the lumbar spine she has a spondylolisthesis which was dynamically unstable.
The respondent however has argued that Ms Clarke has demonstrated a capacity for suitable employment by her work between September 2021 and 28 December 2022, when the Centre burnt down. She had been working a few hours per day as a cashier and clearly enjoyed it. If anything, she might have been entitled under s 38(3), but she would need to apply to the insurer, and had not.
In Dewar DP Roche considered the application of s 32A to the definition of suitable employment, noting at [62] that it was a “practical exercise.” He also said from [60]:
“60. Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’”.
In Ms Clarke’s case, she has established that she can work in a charitable welfare centre. She was not paid, and her motive was to help herself and get out of the house. Whilst she said she did so apparently with the approval of Dr Taylor, his certificates nonetheless certified Ms Clarke as having no current work capacity.
The explanation for this inconsistency may lie in Ms Clarke’s increasingly desperate mental condition as a result of not being able to work, and Dr Taylor’s refusal to certify her for anything but ‘no current work capacity’. Dr Taylor’s responsible approach to his patient was evident for the period she was doing her voluntary work. Dr Taylor has been unrelenting in his view that Ms Clarke is not able to work, but it is entirely conceivable that, for Ms Clarke’s wellbeing, he might have encouraged her to do such activity.
Ms Clarke has a deteriorating spinal condition. She is 64-years-old, and has been subjected to three significant spinal procedures, and is about to undergo a fourth. She has done essentially the same job, working her way from being a casual employee to supervisor with Fonterra and then as a supervisor for the respondent. Apart from doing voluntary work when and for how long she chose, as she did with the Australian Community Care Network Centre in Grafton, it is improbable that there is any similar job she could perform and get paid. To that extent, her service with the Community Centre was not a real job.
Thus, having regard to her age, education skills and work experience there is not any work for which Ms Clarke is presently suited. Whilst Dr Bodel thought Ms Clarke was not fit for her pre-injury duties, he also observed that her prospects of returning to work were “very poor because of the severity of her ongoing disability.” I concur that Ms Clarke’s ongoing disability prevents her from returning to her pre-injury employment, but accept that her ongoing disability prevents her from obtaining any employment, no matter how abstract the provisions of s 32A(b) describe potential employment. I am therefore satisfied that Ms Clarke’s certification was correct, and that she has had no work capacity since weekly compensation ceased on 7 February 2022.
Accordingly the question arises as to whether the Commission has jurisdiction to make an order pursuant to s 38. Both Nzobakenga and Chea are decisions by my colleagues that confirm that the Commission does have such jurisdiction. In conformity with their view I am satisfied that a s 38 order may be made in Ms Clarkes favour.
Finally, whilst I perused the respondent’s argument that Ms Clarke has failed to prove that the proposed surgery is not reasonably necessary, I reject it. Both Dr Seex and Dr Bodel endorsed the proposal, and there is no expert evidence before me that disputes it. Dr Seex quite properly and unremarkably discussed the pros and cons of the recommended surgery, and noted that nonetheless, Ms Clarke wished to proceed to proceed. The respondent’s suggestion that Dr Seex, whilst seeking approval for the surgery, was opposed to it was not tenable.
I note that 80% of the pre-injury average weekly earnings is agreed at $574.08. The same figure is applicable for the s 38 period, which commences on 8 February 2022.
Accordingly I make the following orders:
(a) The respondent will pay to the applicant the sum of $574.08 per week from 22 June 2021 to 7 February 2022 pursuant to s 37 of the 1987 Act.
(b) The respondent will pay to the applicant the sum of $574.08 per week from 8 February 2022 to date and continuing pursuant to s 38(2) of the 1987 Act.
(c) The respondent will pay for the costs of and associated with the surgery recommended by Dr Seex in his application of 30 October 2020.
(d) The respondent will pay the applicant’s s 60 expenses on production of accounts, receipts and/or HIC Notice of Charge.
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