Department of Ageing, Disability and Homecare v Mariniello
[2010] NSWWCCPD 17
•22 February 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Department of Ageing, Disability and Homecare v Mariniello [2010] NSWWCCPD 17 | ||||
| APPELLANT: | Department of Ageing, Disability and Homecare | ||||
| RESPONDENT: | Josephine Mariniello | ||||
| INSURER: | Allianz Australia Insurance Limited | ||||
| FILE NUMBER: | A1-6324/09 | ||||
| ARBITRATOR: | Mr R Bell | ||||
| DATE OF ARBITRATOR’S DECISION: | 12 November 2009 | ||||
| DATE OF APPEAL DECISION: | 22 February 2010 | ||||
| SUBJECT MATTER OF DECISION: | Whether hospital and medical expenses resulted from work injury; section 60 of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Smuts McKenzie Lawyers | |||
| Respondent: | Taylor & Scott Lawyers | ||||
| ORDERS MADE ON APPEAL: | Paragraph 1 of the Arbitrator’s determination of 12 November 2009 is revoked. For the reasons given in this decision, paragraphs 2, 3 and 4 of the Arbitrator’s determination are confirmed. | ||||
BACKGROUND
The respondent worker, Ms Mariniello, injured her back whilst moving a washing machine in the course of her employment with the appellant employer, The Department of Ageing, Disability and Homecare (‘the Department’), on 26 July 1991. As a result of that injury she underwent surgery at the L5/S1 level of her low back in November 1991 and, having had a good result from her surgery, returned to work in about June 1992.
The Department’s insurer, Allianz Australia Insurance Limited (‘Allianz’), initially accepted liability. A dispute subsequently arose as to the worker’s entitlement to weekly compensation and lump sum compensation in 1993 and she commenced proceedings in the former Compensation Court of NSW. On 30 August 1994, Maguire CCJ made an award in her favour in respect of weekly compensation and in respect of lump sum compensation for a 10 per cent loss of efficient use of the right leg at or above the knee and a 20 per cent permanent impairment of the back.
Ms Mariniello’s back and leg pain continued and gradually became more severe. From time to time she would attend on her general practitioner, Dr Crea. Her symptoms deteriorated markedly in 2007 and Dr Crea referred her to Dr Allan, neurosurgeon, who recommended further surgery, which he performed on 11 January 2008.
In a section 74 notice dated 18 October 2007, Allianz disputed liability on the ground that Ms Mariniello’s condition was not related to her 1991 injury. A later section 74 notice, dated 14 July 2009, disputed injury and asserted that the claim related to “new injuries” unrelated to the worker’s employment. It wrongly relied on sections 4, 9, 9A, 33, 36, 37, 40 59, and 60, rather than merely sections 59 and 60. It then stated:
“We deny that your medical expenses, as claimed, did not result from your work related injury in 1991 and in additional [sic] are not reasonably necessary and are thus not compensable under sections 59 and 60 of the Act.”
Clearly, the notice intended to dispute whether the medical expenses resulted from the 1991 injury, though it said the opposite. It also disputed whether the treatment was reasonably necessary.
Given the decision by Maguire CCJ, it was not open to the insurer to dispute that Ms Mariniello injured her back in the course of her employment on 26 July 1991 and the reference to section 4 was inappropriate. The reference to section 9A was fundamentally misguided as that section was not introduced until 1997 and the injury occurred in 1991. In any event, employment does not have to be a substantial contributing factor to the need for medical treatment. The references to sections 33, 36, 37 and 40 were also otiose because the worker made no claim for weekly compensation. This case graphically illustrates, yet again, the insurance industry’s complete inability to comply with section 74.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 11 August 2009, Ms Mariniello sought medical and hospital expenses in the sum of $16,202.45, being the cost of the 2008 surgery and other medical treatment. The Department disputed liability on the grounds set out in Allianz’s section 74 notice referred to above.
The Commission listed the matter for conciliation and arbitration on 26 October 2009 when the parties made lengthy submissions, but called no oral evidence. Due to an equipment malfunction, only page one of the transcript of the proceedings on 26 October 2009 is available, but neither party submitted that the appeal could not proceed due to the absence of the transcript.
In a reserved decision delivered on 12 November 2009, the Arbitrator found in favour of Ms Mariniello and the Commission issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
1.That the Commission finds that the Applicant suffered injury to the lumbar spine at the levels L4/L5 and L3/L4 arising out of or in the course of her employment with the Respondent.
2.That the Respondent pay the Applicant’s section 60 of the Act expenses of $16,202.45 on production of accounts, receipts, or HIC Notice of Charge.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.
4.I certify this matter as complex for the purposes Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2003; there is to be 5% increase to the costs applicable to both parties.”
In an appeal filed on 10 December 2009, the Department seeks leave to appeal the Arbitrator’s determination
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE EVIDENCE
Ms Mariniello’s evidence is set out in her statement of 5 August 2009. She was born in 1937 and retired from work some years ago. She worked part-time for the Department (formerly known as Home Care Service of NSW). In July 1991 she injured her back whilst moving a washing machine in the course of her employment. She submitted a claim for compensation and the insurer accepted liability. At that time she had severe pain in her lower back extending into both legs, particularly the right leg. She stated that she has had pain in the same place in her lower back and legs ever since.
Dr McGee-Collett operated on her lower back in November 1991. She had a good result from that surgery, but continued to have ongoing pain in her back and legs. Proceedings in the former Compensation Court of NSW were determined in her favour by Maguire CCJ on 30 August 1994.
Ms Mariniello’s back and leg pain continued and gradually became more severe. From time to time she would see Dr Crea.
Symptoms “deteriorated markedly” during 2007 and Dr Crea referred her to Dr Allan who recommended further surgery, which was performed on 11 January 2008.
Ms Mariniello believes she has had a very good result from the surgery, but continues to have some ongoing pain in her lower back and both legs, the right significantly worse than the left.
Medical evidence
The Department tendered Dr Crea’s clinical notes. Dr Crea has treated Ms Mariniello since September 1980 and his notes commence on 1 September 1980 and conclude in mid 2008. It is not possible to prepare an exact chronology from the doctor’s notes, as some of the dates and entries are indecipherable. However, a fair summary of the relevant entries in the notes reveals the following:
29 March 1982 low back pain - mainly lumbar
1 February 1985 low back pain
15 March 1985 low back pain - muscular due to lifting a sack of potatoes
Late 1991back injury at work on 26 July 1991 whilst moving a washing machine - CT scan showed L5/S1 disc lesion
12 December 1991 doing reasonably well post-op
19 December 1991 still complaining of right leg pain
13 March 1992 certificate for light duties not involving heavy lifting
27 March 1992 certificate to state patient fit for light duties only
13 April 1992 certificate for two weeks for back injury
27 April 1992 long discussion in relation to back complaints
9 June 1992 fit for light duties
10 August 1992 long discussion in relation to back pain
14 August 1992 certificate for two weeks for low back pain
31 August 1992 certificate for two weeks for low back pain
24 September 1992 certificate for one day for back pain
Late 1992fall down service stairs onto buttocks – “now has severe back pain ? Compression fracture - severe back pain”
12 January 1993 complaint of continuing back pain, shoulder, hip
2 March 1993 complaint of minimal symptoms relating to back pain
29 March 1993 long discussion in relation to control of low back pain
Mid 1993 long discussion in relation to back pain
Mid 1993 certificate for three months - back pain-fit for “L.D.O.”
Late 1993 certificate for one month “LDO” low back pain
14 June 1994 certificate for one-month “low back pain-L.D.O.”
1995/1996hit on head by umbrella-pain along right side of head and neck
Early 1997x-rays showed degenerative lumbar and cervical spines
Mid 1997low back pain reoccurrence - patient requires lumbar corset
Mid 1997complaint of severe left thigh pain-“C/T scan ? L4 5 disc protrusion”
31 July 1997 severe back pain C/T scan shows disc protrusion
March 2007 severe back pain
22 June 2007 MRI-“L4.5 L1.2 defects refer to Dr McGee-Collett”
September 2007 back pain
January 2008 L3/4/5 laminectomy and discectomy
Dr Crea’s notes reveal that the worker attended on him on approximately 58 occasions between September 1997 and March 2007 for various complaints, but the notes in that period make no reference to back pain. They do refer to “generalised arthralgia” on 21 February 2005 and 8 April 2005.
Ms Mariniello underwent an MRI scan on 19 June 2007. The radiologist concluded:
“At the site of previous surgery at L5/S1 there is no residual or recurrent disc herniation and no evidence of complication or nerve root compression.
At L4/5 there is marked central canal stenosis, mainly due to the facet joint arthrosis and enlargement, and associated mild disc bulge and endplate bony spurring.
At L3/4 there is a grade I degenerative spondylolisthesis. There is marked left facet joint degeneration and enlargement which is causing some thecal sac compression at the top of the lateral recess and crowding the intra-thecal portion of the proximal L4 nerve root, and there is also left foraminal stenosis and crowding of the exiting L3 nerve root. There is mild to moderate overall canal stenosis.
At L1/2 there is a mild degenerative retrolisthesis, no significant canal stenosis but mild bilateral foraminal narrowing.”
Dr McGee-Collett reviewed the worker on 23 July 2007. He reported to Dr Crea that he remembered the worker well. Whilst she said that her L5/S1 discectomy in 1991 gave her “significant relief” his impression was that she had a reasonably poor outcome from surgery and had significant ongoing pain at the numerous reviews after surgery. A major presenting problem was low back pain and some burning sensory disturbance in both legs. On examination the right ankle jerk was depressed, as before but there were no other abnormalities. He confirmed the MRI revealed moderate L4/5 stenosis. Unless Ms Mariniello became incapacitated by “neurogenic claudicant lower limb pain”, the doctor saw no role for further surgery.
Dr Crea referred the worker to Dr Allan for a second opinion. He examined her on 4 October 2007 and reported to Dr Crea on 5 October 2007. He took a history of the 1991 surgery, which he noted was “successful”, though it did not provide “a complete improvement”. Over the previous 18 months, she had worsening pain with difficulty walking because of pain in both legs, though predominantly in the right leg. That pain especially involved the thigh, which was higher than the level of her pain prior to her previous surgery. Dr Allan thought the worker’s symptoms were suggestive of neurogenic claudication, which would be amenable to treatment with a decompressive lumbar laminectomy.
Ms Mariniello underwent surgery at the hands of Dr Allan on 11 January 2008 and the doctor reported to her solicitors on 24 October 2008. He confirmed his diagnosis of neurogenic claudication. It appears that Dr Allan was not asked if the surgery he performed was reasonably necessary as a result of the 1991 injury, but was asked a different question. He stated:
“6. Whether the injury sustained in the course of employment with Home Care Service in 1991 and/or the subsequent back surgery remains a substantial contributing cause to Mrs Mariniello’s ongoing back and right leg pain and the need for surgery in January 2008: Mrs Mariniello is unquestionably suffering from degenerative disease of her lumbar spine. The original surgery was related directly to an accident at work in 1991. As a result of this surgery she has gone on to develop early degeneration of her lumbar spine at the levels above the surgery Dr McGee-Collett performed. This is quite common after lumbar spinal surgery and I feel therefore that her original back injury is a substantial and contributing cause for her ongoing back troubles, ongoing back and right leg pain and the need for surgery in 2008.”
Allianz relies on the evidence from Dr Lloyd Hughes, consultant orthopaedic surgeon, and Dr Isbister, orthopaedic surgeon.
Dr Hughes examined the worker on 11 April 1997. He took a history that the worker injured her back whilst moving a washing machine in July 1991 and that she underwent surgery in November of that year. Some months after her operation she returned to work for Home Care, doing office duties only, but was ultimately retrenched. She subsequently did some reception work for LJ Hooker for three weeks but could not manage because of pain in her back. She complained of a constant ache in her low back, worse when she did any house work such as vacuuming. The pain radiated into both buttocks and she had pins and needles in her feet at times. X-rays dated 4 September 1991 and 7 December 1992 showed moderate narrowing of the L5/S1 disc space and slight degenerative lipping at the L2/3 level. A CT scan dated 16 September 1991 showed moderate bulging of the L5/S1 disc and slight bulging of the L4/5 disc. An MRI scan dated 20 May 1992 confirmed that a laminectomy had been performed at the L5/S1 level and that there was possible scar tissue around the right S1 nerve root. Dr Hughes concluded that the history and radiological investigations were consistent with a degenerative process in the worker’s lumbar spine. He added:
“As often happens with a degenerative process in the lumbar spine she subsequently possibly developed an intervertebral disc protrusion and the strain on her back resulting from the incident at work on 26.7.91 may have contributed to the eventual development of the disc protrusions. However, presumably any disc protrusion has now been removed surgically and her continuing symptoms are due to an underlying degenerative process of her lumbar spine unrelated to her previous work or any injury.”
Dr Hughes did not believe the worker’s symptoms in 1997 could be related to the original injury.
Dr Isbister examined the worker on 27 September 2007 and reported to Allianz the following day. The purpose of his examination was to “assess Mrs Mariniello’s back condition”. He recorded that her back symptoms had been deteriorating over the previous two years and that she had fallen unexpectedly on three occasions because her legs gave way.
After referring to the June 2007 MRI scan, Dr Isbister concluded that Ms Mariniello was suffering from “marked lumbar spondylosis with arthritic changes at several levels of the lumbar spine with facet joint arthritis and secondary spinal canal stenosis at the L3/4 level”. He noted that she had previously suffered from a prolapse at the L5/S1 disc that was treated by surgery and that, though there were degenerative changes at that level, they were not “significant causes of her ongoing symptoms”.
Dr Isbister was asked if Ms Mariniello’s current condition/diagnosis was a work related condition. He replied:
“Her current condition is largely related to diffuse degenerative changes in her lumbar spine.
These changes are remote from the L5/S1 disc which is the site of her original injury in 1991.
In my opinion the current osteoarthritic changes are constitutional in nature and are not related to her work injury.
I note that her original operation provided some relief of symptoms as recorded by Dr McGee Collett in his report dated 23 July 2007.
I believe that the apparent recurrence of symptoms is due to the progressive degenerative changes which had occurred in the remainder of the lumbar spine.
I agree with Dr Lloyd Hughes that the ‘continuing symptoms are due to underlying degenerative process of her lumbar spine unrelated to her previous work or any injury’.”
If the worker’s condition remained work related, the doctor was also asked whether she required any further treatment. Dr Isbister stated that her condition was no longer work related and that she appeared to be developing spinal canal stenosis unrelated to the site of the previous laminectomy. He thought she may require spinal decompression, which he believed would be “non-work related”.
THE ARBITRATOR’S REASONS
The Arbitrator concluded that there was a clear “causative chain” between the compensable back injury to the L5/S1 disc in 1991 and the subsequent degeneration at L4/5 and L3/4. He therefore concluded that the worker suffered injury to the L4/5 and L3/4 disc arising out of her employment with the Department and he found that the claimed hospital and medical expenses were “reasonably necessary for the compensable back injury” (Reasons at [52]).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) placing undue reliance on the evidence of Dr Allan in relation to the issue of causation;
(b) placing undue reliance on the worker’s report of continuing pain, and
(c) improperly dismissing the effects of the worker’s fall in 1992, and incorrectly applying the reasoning in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (‘Kooragang’) in determining that the causal link between the injury in 1991 and the surgery in 2008 had not been severed.
SUBMISSIONS, DISCUSSION AND FINDINGS
The Department submits:
(a) that Drs Hughes and Isbister both provided ample explanations of “the mechanism of causation of the worker’s need for surgery in 2007” and, though reaching a different conclusion to that reached by Dr Allan, it could not be said that they provided any less direct comment than Dr Allan. Accordingly, the Arbitrator’s reliance on Dr Allan’s report on the basis that he commented on the issue of causation most directly, was unfounded;
(b) Dr Allan has not substantiated his opinion that the worker’s spinal degeneration is premature. Given her advanced years, it is an opinion that should be objectively substantiated;
(c) Dr Allan failed to mention the basis upon which he concluded that the surgery at the L5/S1 level caused the injury at L4/5 and L3/4 level, apart from stating that it was common after lumbar surgery;
(d) Dr Allan’s statement that such injuries often follow lumbar surgery is not supported by any facts in existence other than the fact that the worker had surgery at the L5/S1 level in 1991 and some 17 years later developed severe back pain and had surgery at the L3/4 and L4/5 level of her spine. It is submitted that Dr Allan’s statements breached the standard required by Makita (Australia) Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’);
(e) Dr Allan’s opinion failed to address the role played by the worker’s fall in 1992 which led to “severe back pains” and also failed to address the unexplained and sudden worsening of back symptoms in 2007 thereby necessitating the surgery in question;
(f) Dr Allan did not state how the worker’s injury and surgery in 1991 caused a spontaneous worsening of pain some 17 years later at a different location;
(g) the Arbitrator therefore placed undue weight on Dr Allan’s evidence without giving the reason for dismissing the opinions of Drs Isbister and Hughes;
(h) the burden of proof is not satisfied by evidence that it is possible that a causal relation exists (Seltsam Pty Ltd v McGuinness [2000] NSWCA 29; (2000) 49 NSWLR 262 at 275);
(i) the totality of the evidence has not established the required causal link between the 1991 injury and the surgery in 2008;
(j) the Arbitrator wrongly relied on the applicant’s complaint of continuing back and leg symptoms. Dr Crea’s clinical notes reveal no complaint of back pain between 1997 and 2007, which is at odds with the worker’s statement of ongoing pain and alleged consultation with Dr Crea in response to that pain;
(k) the “common sense” approach “advocated” by Kooragang would suggest that, in the circumstances of the present case, there is a “want of sufficient connection” between the work injury in 1991 and the injury in 2007 and subsequent surgery;
(l) the Arbitrator relied too heavily on the worker’s “incongruous statement” in determining that the chain of causation had not been “snapped”;
(m) the evidence fell well short of establishing the requisite causal connection between the injury in 1991 and the “injury/surgery at a different level of her back in 2007”;
(n) the Arbitrator failed to adequately deal with the fall in 1992, or Dr Crea’s records that referred to back pain after the 1992 fall;
(o) there is no evidence that the fall in 1992 was not the sole cause of the worker’s new injury “at a spinal level or remote from the site of the original injury”, and
(p) the worker suffered no injury in 1991 at the site of her most recent surgery. Accordingly, it is not necessary to consider the 1992 fall as an intervening cause of injury.
The Department’s submissions misunderstand the nature of the dispute in this case. The issue for determination is not whether the worker injured the L4/5 and L3/4 levels of her lumbar spine, but whether the surgery performed by Dr Allan in 2008 was reasonably necessary “as a result of an injury received by” the worker in 1991. In other words, did the need for the surgery result from the 1991 injury. That question raises a straightforward question of causation where the authority of Kooragang is directly relevant and applicable. In that case Kirby P (as his Honour then was) said 463-4:
“What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
Dr Hughes’ conclusion is of limited assistance in determining the current dispute as he saw the worker in 1997 and was not asked to consider the need for further surgery. I therefore place no weight on his opinion.
Dr Isbister’s conclusion at least touches on the relevant issue, though his conclusion that the worker’s condition was “largely related to the diffuse degenerative changes in her lumbar spine” suggests that her condition was not solely due to degenerative changes and that the injury still played a role. His statement that those “changes” were “remote from [the] L5/S1 disc” is not entirely accurate. The changes that required further surgery were at the immediately adjacent disc levels, namely L4/5 and L3/4. I do not accept that those levels are “remote from the L5/S1 disc” and, as a result, I do not accept his conclusion that the worker’s osteoarthritic changes were “solely” constitutional in nature and unrelated to her injury. Though Dr Isbister considered that the worker “may require spinal decompression”, he believed it was “non-work related”.
The worker relies upon the evidence from her treating neurosurgeon, Dr Allan. I do not accept that Dr Allan’s evidence “breached the standard required by Makita”. Dr Allan took a detailed history of the 1991 injury and the subsequent surgery. He also noted, correctly, that the worker’s symptoms had worsened in the 18 months prior to his examination of her in October 2007. Armed with his history, and his findings at surgery, he was then asked whether the 1991 injury and/or subsequent surgery remained “a substantial contributing cause” to the worker’s ongoing back and right leg pain and the need for surgery in January 2008. This was the wrong question. Ms Mariniello does not have to establish that her 1991 injury was a substantial contributing cause of her need for surgery in 2008. She only has to establish that her surgery and other treatment were reasonably necessary “as a result of” her 1991 injury. That is a significantly different test to that of “substantial contributing cause”.
Notwithstanding that he was asked the wrong question (one which required a higher standard of proof), Dr Allan concluded that the worker developed early degeneration of her lumbar spine at the levels above L5/S1 as a result of the surgery performed by Dr McGee-Collett. His conclusion that such a development was “quite common” after lumbar spinal surgery was no doubt based upon his experience and expertise as a neurosurgeon and, as such, it is entitled to appropriate weight. He then concluded that the 1991 injury was a “substantial and contributing cause” of the worker’s ongoing back troubles and “the need for surgery in 2008”.
A medical expert is normally required to provide an explanation for his or her opinion. However, an expert does not have to explain every opinion (see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 (‘Red Bull’) at [88]-[89], and Giles JA in Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [631] – cited in Paino v Paino [2008] NSWCA 276 at [65]). As Weidberg and Dowsett JJ observed (at [89]) in Red Bull, “Some propositions may be so fundamental in a particular discipline as to be treated as virtually axiomatic.” Though Dr Allan’s explanation for his opinion was brief, it was sufficient, in the circumstances of the present case, to establish the relevant causal connection between the 1991 injury and the need for the 2008 surgery and other treatment.
Dr Allan went much further than suggesting that there was merely a possible causal connection between the injury and the need for surgery, but affirmably asserted that it was a substantial and contributing cause. Given that Dr Allan was the treating surgeon and given that he was satisfied on the basis of a much higher standard than merely “results from” and given Ms Mariniello’s evidence (which I accept) of continuing symptoms since her 1991 injury, I am comfortably satisfied (applying the common sense test of causation) that Ms Mariniello’s claimed hospital and medical expenses (including the cost of the surgery in 2008) resulted from her 1991 injury. It follows that I do not accept the Department’s submission that the Arbitrator placed undue weight on Dr Allan’s evidence.
I accept the Department’s submission that Dr Crea’s clinical notes make no mention of the worker complaining of back pain between 1997 and 2007. I do not accept, however, that the absence of such complaints indicates that the worker’s back condition as a result of the 1991 injury and surgery had completely resolved. Clearly, it had not. The 1991 injury and consequential surgery resulted in her being awarded a 20 per cent permanent impairment of her back by Maguire CCJ in 1994. In any event, the case does not turn solely on a continuity of symptoms from 1991 until 2007, but on whether the need for the surgery performed by Dr Allan, and the other medical treatment claimed, resulted form the 1991 injury. I am comfortably satisfied that it did.
The worsening of the worker’s symptoms in 2007 is not determinative. There is no suggestion that the worker suffered a fresh injury in 2007 or that the need for surgery resulted from some event or incident that occurred in that year. The Department’s defence is that the need for surgery resulted from unrelated degenerative changes. The opinion from the treating neurosurgeon is to the contrary and I prefer and accept his opinion.
The Department’s reliance on the 1992 fall is misguided. That fall caused Ms Mariniello severe pain, but there is no evidence that it caused any permanent damage or played any role in the development of the symptoms that ultimately brought Ms Mariniello to surgery in 2008. In these circumstances, it is of no consequence that Dr Allan took no history of that fall.
Though Allianz appears to have disputed whether the claimed hospital and medical expenses were reasonably necessary, it has tendered no evidence on this issue. Dr Isbister conceded in 2007 that Ms Mariniello “may require spinal decompression”. Given that Dr Allan recommended the surgery and that Ms Mariniello’s symptoms significantly improved after the surgery, I am comfortably satisfied that the claimed expenses were reasonably necessary.
It follows that, for the reasons given in this decision, the Department’s appeal is unsuccessful. However, paragraph 1 of the Arbitrator’s determination, namely that the worker suffered injury to the L4/5 and L3/4 levels of her lumbar spine arising out of or in the course of her employment with the Department, cannot stand as that was not the basis of the worker’s claim. The claim was that the need for surgery and other treatment resulted from the 1991 injury. The worker has succeeded in that claim and it is neither necessary nor appropriate to make a finding that she suffered injury to the L4/5 and/or L3/4 levels of her lumbar spine in 1991. Therefore, paragraph 1 of the Arbitrator’s determination must be revoked.
CONCLUSION
Having conducted a review on the merits, I am of the view, for the reasons given in this decision, that the worker’s claimed Section 60 expenses of $16, 202.45 were reasonably necessary as a result of the injury to her lumbar spine on 26 July 1991.
DECISION
Paragraph 1 of the Arbitrator’s determination of 12 November 2009 is revoked. For the reasons given in this decision, paragraphs 2, 3 and 4 of the Arbitrator’s determination are confirmed.
COSTS
The appellant employer is to pay respondent worker’s costs, as agreed or assessed.
Bill Roche
Deputy President
22 February 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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