Devi v Cordina Chicken Farms Pty Ltd
[2021] NSWPIC 342
•10 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Devi v Cordina Chicken Farms Pty Ltd [2021] NSWPIC 342 |
| APPLICANT: | Pushp Devi |
| RESPONDENT: | Cordina Chicken Farms Pty Ltd |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 10 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Order sought by worker for the respondent to meet cost of C5/6 anterior decompression and fusion; respondent admits injury to both shoulders but not to cervical spine; reference to Perry v Tanine Pty Ltd; Held – worker sustained disease injury to her cervical spine as provided by section 4(b)(i) of the Workers Compensation Act 1987 (1987 Act); surgery is reasonably necessary as a result of the injury to the worker; order made pursuant to sections 60 (5) and 61 (4A) of the 1987 Act. |
| DETERMINATIONS MADE: | 1. The applicant sustained an injury to her cervical spine in the course of her employment with the respondent by way of a disease injury pursuant to section 4 (b)(i) of the Workers Compensation Act 1987, with a deemed date of injury of 20 October 2016. 2. The C5/6 anterior cervical decompression and fusion proposed by Dr Kanawati is reasonably necessary as a result of the injury sustained by the applicant on 20 October 2016. |
| ORDERS MADE: | 1. Pursuant to section 60(5) and section 61(4A) of the Workers Compensation Act 1987, the respondent is to pay for the C5/6 anterior cervical decompression and fusion proposed by |
STATEMENT OF REASONS
BACKGROUND
The applicant, Pushp Devi, sustained injuries to both shoulders in the course of her employment as a process worker with the respondent, Cordina Chicken Farms Pty Ltd, with a deemed date of injury of 20 October 2016.
The respondent has admitted liability for these injuries.
The applicant underwent a right rotator cuff repair operation performed by Dr Bokor on 21 November 2017, and a left rotator cuff repair operation, also performed by Dr Bokor, on 15 January 2019.
The applicant was assessed as having 17% permanent impairment by Dr McGroder, Approved Medical Specialist, for injury to both upper limbs and scarring in a Medical Assessment Certificate dated 13 August 2020.
The applicant also claims that she sustained an injury to her cervical spine in the course of her employment with the respondent as a result of the strenuous and repetitive duties she was required to undertake for approximately 10 years.
The applicant seeks an order pursuant to section 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pays the costs of a C5/6 anterior cervical decompression and fusion proposed by Dr Kanawati.
The GIO on behalf of the respondent has issued dispute notices dated 27 January 2021 and 19 May 2021 wherein it disputes that the applicant has sustained an injury to her cervical spine in the course of her employment with the respondent and that the surgery proposed by Dr Kanawati is not reasonably necessary as a result of the injury sustained by the applicant on 20 October 2016.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to her cervical spine in the course of her employment with the respondent (section 4 of the 1987 Act), and
(b) whether the C5/6 anterior cervical decompression and fusion proposed by
Dr Kanawati is reasonably necessary as a result of the injury sustained by the applicant on 20 October 2016 (section 60 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 3 September 2021. 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.
Mr Malouf appeared for the applicant, instructed by Mr Ahmed. Mr Robison appeared for the respondent, instructed by Ms Brown.
The hearing was conducted by telephone in accordance with the protocols set by the Commission as a result of the coronavirus pandemic.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant on 13 August 2021, and
(d) Application to Admit Late Documents filed by the respondent on 31 August 2021.
Oral evidence
There was no application to adduce oral evidence or to cross examine the applicant.
The applicant’s evidence
The applicant has provided statements dated 26 July 2017 and 19 March 2020.
There was some discussion during the arbitration as to whether the applicant’s second statement as it appeared in the ARD was dated 26 July 2017 or 26 July 2019. I am satisfied that the statement was dated 26 July 2017 because a statement on that date was listed in a previous Application to Resolve a Dispute filed on 17 August 2017 (WCC4140/17).
In her statement dated 26 July 2017, the applicant states that she worked as a process worker at Cordina Hatchery from 2006 to 2009, and then at Cordina Chicken Factory from 2009 to 20 October 2016.
The applicant states that at the factory she undertook several different tasks which were hard, strenuous and demanding. These tasks included:
(a) a job called “dropping” - a fast paced job which involves chickens being dropped into a tub and being packed into plastic bags;
(b) holding tubs with eight to ten chicken breasts in each tub while the chicken breasts are placed on a conveyor belt;
(c) lifting and carrying tubs full of chicken and chicken pieces;
(d) stuffing, tying and folding chicken wings, and
(e) packing chicken and chicken pieces.
The applicant states that she cannot identify the date of injury because it was a prolonged and repetitive injury which got worse over time. She states that she had problems in her hands which she understood was carpal tunnel. The applicant states:
“The pain that went to my shoulders and neck started progressing rapidly in which my arm/shoulder and neck area was swelling up and became from my lack of motion and pain.”
The applicant states that she considers her injury was the result of working in a fast paced environment, with the addition of overhead movements. She states:
“The repetition from the heavy frozen chicken and with some overhead movements led me to have tendon tear in both of my shoulders, restricting me from movement and stopping me from my normal and personal activities. The pain is felt throughout my hand and shoulders and due to my shoulders getting worse, my neck had to be used more frequently and got strained from that as well.”
In her statement dated 19 March 2020, the applicant nominates the date of the workplace injury to be 20 October 2016. There is no mention of an injury to the neck, or any symptoms in the neck, in the statement dated 19 March 2020.
The applicant’s medical evidence
There are clinical records in evidence from the general practice which the applicant has attended, being Malvern Road Medical Centre. The applicant’s usual doctor at that practice is Dr Poh. The clinical notes commence from 30 May 2009.
There are some references to neck symptoms, or complaints that may be referable to symptoms emanating from the cervical spine, in those clinical notes between 2009 and
20 October 2016:(a) on 30 May 2009: pins and needles noted in the right hand, which might involve cervical radiculopathy;
(b) on 29 November 2010: constant back pain and sore neck from lifting boxes of chickens;
(c) on 28 August 2012: neck pain for two weeks after “Picking up chicken.” There is a referral for an x-ray of the cervical spine, although there is no indication that the applicant attended to this, and
(d) on 30 June 2016: a record of muscle spasm in the neck.
The record of the applicant’s attendance upon Dr Poh on 20 October 2016 refers only to the right shoulder and elbow. There are some 10 further attendances by the applicant upon
Dr Poh with no mention of any problems with the applicant’s neck until an entry on 3 January 2017 of: “Stiff shoulders, neck sore”.On 25 January 2017 Dr Poh records C5/6 disc degeneration from a bone scan which the applicant underwent.
On 8 March 2017 Dr Poh records the applicant’s hands and arms tingling at times and that the applicant has shoulder and neck pain.
The clinical notes continue until 13 September 2019 but are dominated by attendances for bilateral shoulder pain.
There are reports from Dr Poh dated 23 December 2016, 13 March 2017, 8 November 2017, 16 July 2018 and 15 June 2020 where there is no specific reference to neck symptoms or symptoms emanating from the cervical spine.
Dr Poh has provided a report dated 10 June 2021 wherein he writes that in late 2016 and early 2017 the applicant had multiple symptoms including shoulder pain, limitation of use of her arms and shoulders, and neck stiffness and pain. Dr Poh also confirms that a CT scan and bone scan in January 2017 showed active C5/6 disc pathologies. He writes:
“The treatments at the time were mainly focussing on her shoulder rotator cuff injuries. The neck was perhaps neglected. Not until after the shoulder injuries were operated on and she continued to have shoulder pain that she had subsequent review of her neck, which showed worsening of her neck C56 injuries.”
It is apparent from the clinical notes from Dr Poh that the applicant was referred to
Dr Sunner, orthopaedic surgeon, within two weeks of her attending Dr Poh for her right shoulder problems. In his initial report dated 2 November 2016, Dr Sunner records the applicant having bilateral shoulder pains, but also having discomfort on the left side of her neck.In a further report dated 21 December 2016, Dr Sunner writes that the applicant had no relief from two injections in the shoulder and writes: “That being the case we need to revise our thinking and make sure the pain is not coming from elsewhere and in this particular case from the cervical spine”.
Dr Sunner provides a referral for a bone scan of the applicant’s cervical spine. The bone scan report dated 18 January 2017 includes a finding of “a discovertebral complex indenting the ventral thecal sac more marked on the right of the midline”.
The bone scan report concludes: “Cervical findings show active bony remodelling discogenic and endplate reactive changes in C5/6”.
The applicant transfers the specialist care of her right shoulder to Dr Bokor in March 2017 and embarks on a lengthy period of treatment for her right shoulder (including surgery on 21 November 2017) and then the left shoulder (including surgery on 15 January 2019). I could not locate any reference to neck complaints by the applicant in the clinical records provided by Dr Bokor.
The applicant attended Dr Piper, orthopaedic surgeon, in November 2020 for what seems to be a further opinion in regard to ongoing bilateral shoulder pain. In a report dated 16 November 2020, Dr Piper writes that the applicant has signs and symptoms suggestive of bilateral rotator cuff tears and possible cervical radiculopathy. Dr Piper writes two weeks later that he is referring the applicant to Dr Kanawati for further management of her cervical spine pathology following an MRI scan which reports foraminal stenosis at the C5/6 and C6/7 levels.
I have not been able to identify from the evidence as to when the applicant initially saw
Dr Kanawati, but a CT-guided left C6 nerve block report dated 31 December 2020 is addressed to Dr Kanawati. Dr Kanawati provides a report to Dr Poh dated 5 January 2021 following that nerve block wherein he states that the injection helped the applicant’s arm pain for about 24 hours. Dr Kanawati then writes:“This is a very good prognostic outcome and tells me that if Mrs Devi were to have surgery in the form of a C5/6 anterior cervical discectomy and fusion, she will have a very good outcome.”
Dr Kanawati has provided a report to the applicant’s solicitors dated 16 June 2021. He writes that the applicant has bilateral arm and shoulder pain and neck pain which started during her employment with Cordina Chickens. Dr Kanawati opines:
“I believe the cause of the cervical spine injury was repetitive stress on the cervical spine. She describes looking down and lifting heavy weights which include chicken boxes for several years. She only developed her cervical spine symptoms after prolonged work at Cordina Chickens. It is significant to note that a bone scan performed in 2017 when her symptoms became very severe showed increased uptake in the C5-6 disc reflecting an acute injury at the time of the presentation. This is the disc in question which is causing her radicular pain. It is therefore reasonable to deduce that her work was a significant contributing factor to her symptoms.”
Dr Kanawati also opines that the applicant’s cervical spine condition is due to the nature and conditions of her work, and that her condition was not degenerative in nature initially but was an acute injury which led to subsequent degenerative change to the cervical spine. He concludes that the applicant’s employment is the main contributing factor to her cervical spine condition.
Dr Kanawati has provided a further report to the applicant’s solicitors dated 11 August 2021 in response to an opinion from A/Prof Courtenay, who has been retained by the respondent. Dr Kanawati writes:
“The cause of cervical radiculopathy is either from repetitive load to the spine causing disc degeneration overtime, or an acute injury, but the end product, specifically spondylosis, occurs in both conditions. Mrs Devi may have suffered an acute injury to the disc which subsequently has led to chronic degenerative change, or sustained chronic repetitive minor injuries over time. Therefore whether there is an acute disc injury leading to radiculopathy or chronic repetitive stress leading to radiculopathy, in both situations Mrs Devi's symptoms and signs could be directly related to her work. The fact that she has chronic degenerative change in this setting is indicative of the amount of time that it has taken for her to have her diagnosis, as well as treatment, not indicative of whether this was work related or not.”
There are reports from Dr Brian Stephenson, orthopaedic surgeon, dated 6 June 2017 and
2 December 2019, which are addressed to the applicant’s solicitors. Those reports only address bilateral shoulder pain. The report dated 6 June 2017 includes a record of no objective findings of radiculopathy in the upper limbs and a satisfactory range of neck movement.
Dr McGroder, Approved Medical Specialist, provides a Medical Assessment Certificate dated 13 August 2020 wherein he assesses permanent impairment of both upper limbs in accordance with the referral made by the Commission to him. He does record that the applicant has pain from her shoulders radiating towards her neck.
Dr John Bentivoglio, orthopaedic surgeon, has provided a report to the applicant’s solicitors dated 4 May 2021.
Dr Bentivoglio records that the applicant worked for the respondent for ten and a half years and that her duties were heavy in nature. He records that the applicant developed neck and bilateral shoulder pain which worsened in September 2016. He notes earlier references to neck pain from the clinical records of Dr Poh in 2010 and 2012, and the bone scan which the applicant underwent in January 2017. He records that the applicant “always has neck pain”.
Dr Bentivoglio concludes:
“As there are several notations in local doctor’s notes of problems with her neck dating from her work activity, I would consider her neck complaint has developed as a result of nature and conditions of her employment.”
Dr Bentivoglio also writes that the degenerative changes in the applicant’s neck have developed slowly as a result of her employment, and that the applicant’s employment is the main contributing factor to her cervical spine complaint.
The respondent’s medical evidence
Dr Wallace, orthopaedic surgeon, provided a report at the request of the respondent dated 27 January 2017, being only a few months after the applicant made her claim for compensation.
Dr Wallace diagnosed a spontaneous onset of bilateral shoulder pain which was not related to the applicant’s work. There was no separate diagnosis of any condition affecting the applicant’s cervical spine. Dr Wallace did record the applicant complaining of pain radiating from her shoulders to her neck and intermittent paraesthesia about her right hand.
Dr Sutton, consultant neurologist, provided a report at the request of the respondent dated 26 February 2021. That report addressed a separate condition of carpal tunnel syndrome, although Dr Sutton found global weakness in both upper limbs.
A/Prof Courtenay, orthopaedic surgeon, provided a report at the request of the respondent dated 16 July 2021. He provided that report on a review of all relevant medical material but without an examination of the applicant.
A/Prof Courtenay notes that complaints of neck soreness in the clinical notes from Malvern Road Medical Centre which date back to 2012 were the subject of simple management and did not require further investigation. He also notes that complaints of neck pain were of a global type and he could not detect specific anatomical distribution.
A/Prof Courtenay is asked whether the applicant’s employment is the main contributing factor to injury to the degenerative condition of the applicant’s cervical spine and responds:
“I do not believe that the employment was the main contributing factor. Degenerative changes at one level in the cervical spine is very common. I believe that some aches and pains can be associated with that. These are transient and will settle without any specific treatment, which is what occurred as there was no investigations or repeated complains. I do not believe that work was the main contributing factor. I believe it was a normal degenerative process.”
A/Prof Courtenay also opines that it should not automatically be assumed that the pathology seen on imaging of the cervical spine is the cause of the applicant’s symptoms. He states that the applicant’s major symptoms are in her left arm, yet the mild degree of compression of the nerve root is on the right side. A/Prof Courtenay concludes:
“I believe the condition in her neck is generally normal, constitutional, and age-related, and I believe it is a fallacy to automatically assume a pathological anomaly is the cause of this lady’s symptoms.”
A/Prof Courtenay is also asked if it is significant that there was no complaint of neck pain recorded from the time the applicant ceased work until Dr Kanawati suggests neck surgery, and A/Prof Courtenay responds:
“Most definitely, yes. This lady does have a lot of problems with her aches and pains in both upper limbs, and unfortunately, I believe that having found some pathology, there is a feeling that this will cure all of her problems, which is totally incorrect.”
A/Prof Courtenay has provided a further report dated 31 August 2021, which includes a response to the reports of Dr Kanawati dated 11 August 2021 and Dr Bentivoglio dated 5 August 2021.
A/Prof Courtenay refers to the AMA Guides to the Evaluation of Disease and Injury Causation and states that the opinion from Dr Kanawati completely ignores the natural progression of age and hereditary factors in the development of disc degeneration, which he believes is the situation with the applicant.
A/Prof Courtenay also writes that both Dr Kanawati and Dr Bentivoglio underestimate the imaging findings of more of a stenosis on the right side than the left side.
A/Prof Courtenay refers to the report from Dr Brian Stephenson some eight months after the applicant stopped work which found no objective findings of radiculopathy in the upper limbs and normal range of neck movement and assessed the applicant as having 0% whole person impairment of the cervical spine. A/Prof Courtenay concludes that this “demonstrates that there was no work-related causation with respect to her cervical spine”.
FINDINGS AND REASONS
Whether the applicant sustained an injury to her cervical spine in the course of her employment with the respondent
Mr Malouf for the applicant submits that the applicant has fallen into a quite common situation where the delineation between neck and shoulder symptoms is unclear, but her own evidence and the contemporaneous medical evidence supports a finding that the applicant had symptoms in and from her neck when she ceased work in October 2016.
Mr Malouf submits that it was only after the applicant had undergone very significant treatment on her shoulders that further investigation was made of her cervical spine and the applicant should not be now penalised for following the medical advice and treatment provided to her.
Mr Robison for the respondent submits the applicant is looking back at her history and trying to cobble together an explanation that attributes her neck symptoms to her work. He submits that the bulk of the medical evidence does not refer to complaints of neck symptoms during the applicant’s employment or when she ceases work in October 2016.
Mr Robison submits that the delay in the claim made by the applicant for an injury to the neck is remarkable when it is noted that there is no reference to a neck injury in the claim for work injury damages made by the applicant and which occurs after the applicant is found to by an Approved Medical Specialist to have 17% permanent impairment for her shoulder injuries only.
I accept that the work described by the applicant would be capable of causing injury not only to the shoulders, but also the cervical spine. The applicant describes constant work that was hard and arduous and involved stress and strain to the upper body, including the cervical spine, for at least eight years while working at ‘Cordina Chicken Factory’. The respondent has provided no evidence to dispute this strenuous work described by the applicant.
I also accept from the available evidence that the applicant was experiencing symptoms in her cervical spine in the few months following her cessation of work with the respondent in October 2016. When Dr Sunner sees the applicant on 2 November 2016, he finds discomfort on the left side of the neck which he notes “is not the shoulder pain that she is complaining of”. When Dr Sunner sees the applicant again some seven weeks later and after the applicant has had two shoulder injections, he remains sufficiently concerned about possible involvement of the neck that he recommends a bone scan of the cervical spine.
I have noted that there is no reference to any neck complaints in the first 11 attendances which the applicant had at Malvern Road Medical Centre, and Dr Poh makes no reference to neck complaints in reports which he provides to GIO on 23 December 2016 and 13 March 2017. However, Dr Poh does record the applicant having a sore neck on 3 January 2017 and neck pain on 8 March 2017.
From my review of the contemporaneous medical evidence, it is apparent that the main concern which the applicant had in late 2016 and early 2017 was with her shoulders, and particularly her right shoulder. The applicant was seen and treated by a specialist for her shoulder conditions within two weeks of ceasing work and attending Dr Poh. The clinical notes from Malvern Road Medical Centre record the applicant having sleepless nights and being prescribed Endone.
It is logical and reasonable to conclude from that evidence that the applicant’s immediate concern was with her shoulders, but that she was also experiencing symptoms in her neck.
Dr Wallace had also recorded that the applicant complained of pain in her neck when he saw her in late January 2017. Mr Robison submits that the record made by Dr Wallace is of pain “radiating to her neck”, rather than pain in the neck, so that this reference does not assist the applicant. However, it remains a complaint of pain in the region of the neck, which is made at a similar time to records of neck pain being made by Dr Poh and Dr Sunner.
The applicant’s own evidence also carries significant weight on the issue of when she was experiencing neck pain. I have accepted that the applicant made her first statement on 26 July 2017. That is consistent with that same statement being included in the Supporting Documentation in Application to Resolve a Dispute no.4104/17. The contents of that statement address what was in dispute in those previous proceedings, being a claim for weekly payments of compensation and an order that the respondent pay for the cost of surgery to the right shoulder proposed by Dr Bokor.
That statement is provided nine months after the applicant ceases work and includes several references to aching and pain not only in both shoulders but also the neck. In my view that evidence counters the submission made by Mr Robison that the applicant has sought to cobble together an explanation that attributes her neck symptoms to her work. The main problems which the applicant was having following her cessation of her work with the respondent was with her shoulders, but there is also cogent evidence that the applicant was also having symptoms in and emanating from her neck from the time she ceased work in October 2016.
Significant weight should also be given to the opinion expressed by Dr Poh in his report dated 10 June 2021. Dr Poh has been the applicant’s general practitioner for over 10 years and has had the benefit of treating the applicant for several years prior to her cessation of work. Dr Poh confirms that the applicant complained of neck stiffness and pain in late 2016 and early 2017 and makes the concession that the “neck was perhaps neglected”.
In my view that concession is reasonable given the lengthy period of treatment that the applicant had for her shoulders. It was just over a year after the applicant ceased work that she underwent surgery on her right shoulder, and then another 14 months before the applicant had surgery on her left shoulder. The clinical records from Malvern Road Medical Centre end in September 2019 but the final consultation in those records on 13 September 2019 refers to the applicant still having problems with her shoulders. Dr Poh is then made aware that the applicant also has significant pathology in her cervical spine in late 2020 when Dr Piper, and then Dr Kanawati, write to Dr Poh of their findings following their examinations of the applicant.
I am therefore satisfied from a review of the evidence that the applicant has had symptoms in and emanating from her cervical spine since at least the time she ceased work with the respondent in October 2016.
However, it is still necessary for the applicant to meet the definition of injury to the cervical spine as required by section 4 of the 1987 Act.
Dr Kanawati opines that the applicant’s employment is the main contributing factor to her cervical spine condition. His explanation is that her cervical spine was not initially degenerative in nature, but that the work that she undertook for the respondent, which involved repetitive stress on her cervical spine, led to subsequent degenerative change in her cervical spine.
The explanation provided by Dr Kanawati fits within section 4 (b)(i) of the 1987 Act, being:
“a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease.”
In Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253; [1998] NSWCC 14 (Perry), Burke CCJ was dealing with a carpal tunnel injury, but what he said has been applied more generally to a disease injury:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”
Dr Kanawati has identified the work undertaken by the applicant as the source of the relevant stress upon the applicant’s cervical spine and the cause of the degeneration of the applicant’s cervical spine. He specifically notes that the bone scan taken in January 2017, being at a time when I have accepted that the applicant was experiencing neck symptoms, showed increased uptake in the C5/6 disc, which is the disc which he identifies is causing the applicant to have radicular pain. From the details that he has obtained from the applicant and his own examinations, Dr Kanawati concludes that it “is therefore reasonable to deduce that her work was a significant contributing factor to her symptoms.”
Dr Bentivoglio’s opinion also fits the definition of section 4 (b)(i) of the 1987 Act when he writes that “the degenerative changes present in her neck had developed slowly as a result of her employment”. That opinion is based on his understanding of the heavy work undertaken by the applicant. Dr Bentivoglio also relies upon at least two references to neck pain in the clinical notes from Malvern Road Medical Centre dating back to 2010 and 2012.
I prefer the opinion of Dr Kanawati, which is supported by the opinion of Dr Bentivoglio, over that of A/Prof Courtenay, on the issue as to whether the applicant has sustained an injury to her cervical spine in the course of her employment with the respondent.
Firstly, considerable weight should be given to the opinion provided by Dr Kanawati in his capacity as the applicant’s treating specialist. I acknowledge Dr Kanawati has only commenced to treat the applicant in the past year, and perhaps the usual weight afforded to the opinion of a treating specialist who has seen a patient over several consultations and perhaps several years should not be extended to the opinion provided by Dr Kanawati.
Nonetheless, Dr Kanawati bears responsibility for the treatment of the condition affecting the applicant’s cervical spine, which is based not only on the diagnosis of that condition but also on the cause of that condition. I have noted that I have not been able to identify when
Dr Kanawati first saw the applicant and there seems to be no initial report to Dr Poh which may have included an opinion on the cause of injury, in addition to what Dr Kanawati has written in his reports dated 16 June 2021 and 11 August 2021.However, Dr Kanawati has certainly considered the cause of the symptoms complained of by the applicant in and from her cervical spine, and after due consideration has opined that the applicant’s employment has been the main contributing factor to her current symptoms.
Dr Kanawati has also had the benefit of consulting and examining the applicant, and he has reviewed the medical imaging and not just considered the reports from the imaging.
Dr Kanawati ultimately provides an explanation of the cause of the applicant’s cervical spine symptoms, being that repetitive stress upon the cervical spine has caused degeneration to that part of the applicant’s body, which is consistent with complaints made by the applicant in the months following her cessation of work and the findings of the bone scan taken in January 2017.
A/Prof Courtenay opines that the applicant has a degenerative neck and that it “is generally normal, constitutional, and age-related”, but he does not consider whether the degeneration has been caused by the arduous work which the applicant undertook for at least eight years with the respondent, or that work has been the main contributing factor to the aggravation of the degeneration in the applicant’s neck.
A/Prof Courtenay relies upon an occasional reference in the clinical notes from Malvern Road Medical Centre to neck symptoms which required simple management several years before the applicant ceases work, and the findings of Dr Brian Stephenson in June 2017 of no objective signs of radiculopathy and normal neck movement, to dismiss any suggestion that the applicant has a cervical spine condition caused by her work. However, I have accepted from a review of the evidence that the applicant had significant symptoms in and emanating from her neck when she ceased work in late 2016.
Those significant symptoms and how they relate to the work undertaken by the applicant have been addressed by Dr Kanawati and Dr Bentivoglio, but not by A/Prof Courtenay. Indeed, A/Prof Courtenay is specifically asked to provide his opinion on the basis that the applicant had no complaints of neck pain from the time she ceased work until Dr Kanawati suggested neck surgery. The evidence which I have reviewed does not support such an assumption.
I do not accept the assertion made by A/Prof Courtenay in his second report that
Dr Kanawati’s opinion on the cause of injury to the cervical spine “completely ignores the natural progression of age and hereditary factors”, which A/Prof Courtenay believes accounts for the applicant’s situation. Dr Kanawati acknowledges that the applicant has chronic degenerative changes in her cervical spine but concludes that it was the work undertaken by the applicant which led to that degeneration.I prefer the opinions of Dr Kanawati and Dr Bentivoglio on the issue of the cause of the applicant’s cervical spine condition because the opinions provided by those doctors are consistent with the history of the work undertaken by the applicant, the complaints she was making soon after she ceased work, and the investigations that the applicant has undergone, especially the findings of the bone scan taken in January 2017.
I am satisfied that the applicant has sustained an injury to her cervical spine in the course of her employment with the respondent by way of a disease injury as provided for by section 4 (b)(i) of the 1987 Act.
Whether the need for surgery to the cervical spine results from the injury sustained by the applicant on 20 October 2016
Deputy President Roche said in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) at [58]:
“Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary “as a result of” the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
Dr Kanawati opines in his report dated 16 June 2021 that the C5/6 disc is the disc which is causing the applicant to have radicular pain and that this corresponds to the abnormal findings at that disc level in the bone scan taken in January 2017.
In his report dated 11 August 2021, Dr Kanawati states that the applicant “has been suffering from classical symptoms of C6 radiculopathies”, and that those “symptoms are bilateral in nature”. He also writes:
“The fact that left C6 selective nerve root injection resulted in almost complete pain relief confirms that this neck disorder is the cause of her symptoms.”
In my view, Dr Kanawati satisfies the “commonsense test of causation” and the test set in Murphy by linking the increase in cervical spine symptoms in late 2016 to the abnormal findings at the C5/6 level on the bone scan in January 2017, and then confirming the applicant’s symptoms at that same level of her cervical spine by his findings on examination of the applicant and the applicant’s response to the left C6 nerve block injection in December 2020.
Such a finding is challenged by A/Prof Courtenay pointing out that the bone scan in 2017 identifies a small amount of impingement on the right side of the applicant’s neck whereas the applicant’s main complaints are on the left side of her neck. A/Prof Courtenay also refers to a more recent MRI scan report in November 2020 which shows more of a stenosis on the right side than the left. A/Prof Courtenay writes in his report dated 31 August 2021:
“In my opinion it is quite incorrect to say that symptoms will occur on a radicular pattern on the left hand side when there is no significant stenosis on the left hand side. The fact that there is more stenosis on the right do correlate with clinical patterns but the opposite is definitely not true.”
Dr Kanawati provides a response to this particular issue in his report dated 11 August 2021, even though that report is provided before the second report from A/Prof Courtenay dated 31 August 2021. Dr Kanawati writes that “it is well known that the degree of neural compression does not necessarily correlate to clinical symptoms”. He refers to several studies that show that severe neural compression can often be asymptomatic and minimal neurocompression found on scans can often be severely symptomatic.
I prefer the opinion of Dr Kanawati on this issue because of the clinical judgment he is required to make in treating the applicant. Dr Kanawati states that the medical imaging is directly related to the applicant’s symptoms. I consider that Dr Kanawati in his role as treating specialist is in the best position to provide such an opinion. Dr Kanawati is mindful of the views expressed by A/Prof Courtenay but is ultimately satisfied from the treatment he is providing to this particular patient that there are symptoms “bilateral in nature” which should benefit from the surgery he has proposed.
I am satisfied from my acceptance of the opinions provided by Dr Kanawati that the work injury of 20 October 2016 materially contributes to the need for surgery to the applicant’s cervical spine.
Whether the surgery to the cervical spine proposed by Dr Kanawati is reasonably necessary
Dr Kanawati writes to Dr Poh on 5 January 2021 following a nerve block injection which the applicant had on 31 January 2020 and states that the injection helped the applicant’s arm pain for about 24 hours. Dr Kanawati then writes:
“This is a very good prognostic outcome and tells me that if Mrs Devi were to have surgery in the form of a C5/6 anterior cervical discectomy and fusion, she will have a very good outcome.”
Dr Kanawati also writes that the applicant is quite keen to have a permanent therapeutic procedure for this pain and that he believes that the proposed surgery is going to be a valid option.
In his report dated 16 June 2021, Dr Kanawati confirms that the C5/6 anterior decompression and fusion is reasonable and necessary and that the surgery “is a reliable surgery with good outcomes”.
Dr Bentivoglio opines that on the balance of probabilities the need for surgery is reasonable and necessary as a result of the applicant’s workplace neck complaint.
A/Prof Courtenay opines that the proposed surgery is not reasonably necessary because there is only minimal impingement on the right side, so that the surgery is not going to make any difference and the applicant’s condition could be made worse.
I do not agree with the submission made by Mr Robison that the prognosis for surgery is neutral or negative. Dr Kanawati not only states that the proposed surgery is reliable with good outcomes, but also provides an explanation as to why the applicant is likely to have a favourable result from that surgery because of the temporary relief she obtained from the nerve block injection. I also note that this observation is not made in a medicolegal context, which might invite a level of advocacy on behalf of the applicant, but rather in a report to
Dr Poh which primarily addresses the treatment being provided to the applicant.A/Prof Courtenay does not provide a response to the findings and conclusions made by
Dr Kanawati following the nerve block injection. Nor does he provide any reason as to why he considers that the surgery will either make little difference to the applicant or make her condition worse, other than his views on the minimal impingement identified on imaging. However, I have already provided my reasons as to why I have preferred the opinion of
Dr Kanawati on that issue.
I am also mindful of what was said by Burke CCJ also said in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose) at [48A-C]:
“Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.”
In his report dated 10 June 2021, Dr Poh writes:
“She is taking Endone for many years now; sooner or later she will be dependent on it. It is reasonable and necessary for her to have her C56 disc fixed to see if she can get away from using Endone/Chronic pain relief.”
Dr Poh has been the applicant’s general practitioner for many years now and has monitored her conditions. While the issue of the actual or potential effectiveness of the proposed surgery is more the domain of appropriate specialists, Dr Poh does raise a very legitimate concern regarding the applicant’s ongoing use of strong and potentially addictive medication, which may be alleviated by the proposed surgery.
In my view, the medical evidence overwhelmingly supports a finding that the proposed surgery does have the purpose and potential to alleviate the consequences of the injury that the applicant has sustained to her cervical spine.
There will therefore be an order that the respondent is to pay the costs of a C5/6 anterior cervical decompression and fusion proposed by Dr Kanawati.
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