Douglas v Secretary Department of Planning, Industry and Environment

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Douglas v Secretary Department of Planning, Industry and Environment [2021] NSWPIC 249
APPLICANT:	Justin Douglas
RESPONDENT:	Secretary Department of Planning, Industry and Environment
MEMBER:	Paul Sweeney
DATE OF DECISION:	16 July 20211
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly compensation for incapacity caused by a thoracolumbar disc lesion allegedly resulting from an accepted work injury; where worker suffered back symptoms following a motor vehicle accident before the work injury; where worker suffered back symptoms following a fall after the work injury; where worker’s account of the progression of his symptoms held not to be reliable; Held- finding that the worker had not proven that his incapacity resulted from the work injury; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

INTRODUCTION

Justin Douglas (the applicant) was formerly employed by the Department of Planning Industry and Environment (the respondent) as the Executive Director, Economics, Population & Land-Use Analytics. On 6 June 2016, he suffered an injury to his lower back in the course of his employment when a defective office chair “toppled backwards” causing him to fall to the floor.
The applicant suffered injuries to his back before and after the injury of 6 June 2016. On 25 February 2014, he injured his back when his vehicle was involved in a rear-end collision in the ACT. Then on 7 May 2017, he slipped on a coffee cup at the Ikea store at Tempe and fell on his back.
Following the latter incident, the applicant came under the care of Dr Coughlan, a neurosurgeon, who diagnosed a T12/L1 disc lesion. On 29 June 2017, Dr Coughlan performed a microdiscectomy at that level. When that surgery did not alleviate the applicant’s symptoms, Dr Coughlan performed further surgery on 30 January 2018 in the form of a T12/L1 fusion and on 11 September 2018 a transthoracic excision of the T12/L1 disc. The applicant has made an incomplete recovery from these procedures.
The applicant accepted a voluntary redundancy offered by the respondent on 25 October 2019. The terms of the redundancy precluded him from working for the NSW Government before July 2030. Since that time he has performed some work in a business which he established on 1 January 2020, Econalyst, and through a recruiting company, in a position at TAFE during the period 9 September 2020 to 30 June 2021.
The applicant alleges that his incapacity for work and need for medical treatment after 2 August 2017 results from the employment injury of 6 June 2016 (the June 2016 injury).
The respondent disputes that the applicant is entitled to compensation or an indemnity in respect of his hospital and medical expenses. It maintains that the injury of 6 June 2016 did not materially contribute to either the incapacity or the need for surgical treatment. Rather, these were the inevitable outcome of one or both of the injuries on 25 February 2014 and 7 May 2017.
By its final dispute notice on 2 February 2021 the respondent stated:
“● You do not present with symptoms or a medical condition that renders you with any total or partial incapacity as a result of a workplace injury. As there is no partial or total incapacity as a result of a workplace injury, you do not have an entitlement to weekly payments of compensation under section 33 of the WC Act.
· Any ongoing or further medical or related treatment, hospital treatment and/or rehabilitation services as defined under section 59 of the WC Act are not compensable in accordance with section 59A and are not reasonably necessary in relation to a workplace injury as required by section 60 of the WC Act
· Other: It is disputed that you suffered injury at the T12/L1 because of falling from a chair at work on 6 June 2016. This Notice should be read in conjunction with our previous section 78 Notices dated 7 June 2017, 8 June 2017 and 13 November 2018 which still stand.”

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims weekly compensation calculated on the basis of the maximum statutory rate for various periods between 2 August 2017 and 8 September 2020. He also claims the sum of $145,334.97 in respect of past medical and hospital treatment pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
When the matter came on for conciliation and arbitration over the telephone on 13 May 2021, Mr Perry of counsel represented the applicant and Mr Forster, solicitor, represented the respondent. Unfortunately, due to a misunderstanding resulting from a change in the allocated date after the telephone conference, the respondent’s counsel, Mr Doak, had been asked to diarise the matter for the afternoon rather than the morning of 13 May. During the conciliation conference I was informed by the parties that they were unable to formulate a mutually satisfactory settlement of the dispute. In particular, the parties were not able to agree on the threshold issue of whether the applicant’s incapacity and need for treatment resulted from the work injury of 6 June 2016.
I have used my best endeavours to bring the parties to an agreed resolution of the dispute. I am satisfied that the parties who were represented by experienced lawyers had ample opportunity to reach a settlement of the dispute.
Given Mr Doak’s unavailability in the morning, and after canvassing the matter with the parties, I made directions for the completion of the matter by way of written submissions. I note that neither party suggested they wished to cross-examine witnesses or adduce other oral evidence either at the telephone conference or at the conciliation conference on 13 May 2021.

EVIDENCE

The documents before the Commission are as follows:
(a)    The Application to Resolve a Dispute and the documents attached;
(b)    The Reply and the documents attached; and
(c)    An Application to Admit Late Documents dated 4 May 2021 and the documents attached.
There was no objection to any of the material referred to above save for a report of
Dr Bentivoglio dated 4 December 2017. Mr Doak submitted that the applicant was not entitled to rely on the opinion of both Dr Fearnside and Dr Bentivoglio as the reliance on two forensic medical reports from specialist medical practitioners in the same specialty was precluded by clause 44 of the Workers Compensation Regulation 2016. Mr Perry did not respond to the objection taken by Mr Doak in his submissions in his reply. He did not suggest any basis upon which the opinion of Dr Bentivoglio might be received in evidence.
In those circumstances, I propose to exclude the opinion and findings of Dr Bentivoglio from the evidence in these proceedings. The report can remain in evidence to the extent it deals with the applicant’s history and complaints.
Before considering the submissions of the parties, it is appropriate to compendiously record both the evidence of the applicant and the clinical record of Dr Carr, the general practitioner who treated him after his work injury in June 2016. Both parties placed emphasis on the record and opinion of Dr Carr in their respective submissions. In neither case do I propose to set out the entirety of the evidence of the witness. Rather, I compendiously record the salient points of their evidence so that the parties can understand the way in which the Commission has resolved their dispute.

Applicant

The applicant’s evidence is contained in two signed statements dated 7 June 2018 and 19 October 2020. By his statement dated 7 June 2018, the applicant addresses his work in the Commonwealth public service and, more recently, for the respondent. He continues:
“In February 2014 I was involved in a car accident and suffered a soft tissue injury to the cervical spine. This resolved with physiotherapy.
Prior to 6 June 2016, I was actively involved in domestic duties and the care of my daughter, who was almost two. These activities did not cause me pain.
Prior to 6 June 2016 my hobbies included walking, gardening, hiking, geocaching, travel and swing and rock and roll dancing.”
The applicant then describes the injury at work on 6 June 2016 when he sat on a chair in an open plan area within the respondent’s premises. He says that he fell backwards striking the top and back of his head on the floor. He states that he experienced a “compression force to my spine as my full body weight impacted on my head”. He states that after the fall the raise/leg/lift mechanism of the chair sprung forward causing a jarring sensation in his back.
After the incident the applicant sought treatment from Dr Sue Carr, a general practitioner at Sydney Doctors. That practice was located within a short distance of his work. He was prescribed analgesics and told that he had suffered a soft tissue injury.
The applicant says that whilst his dizziness resolved his neck and lower back pain “got worse in the days immediately after the accident”. He states that he experienced pain in his low back “in a band across my hips” which was particularly severe after leaning forward while standing.
The applicant says that analgesia was ineffective to manage his pain and recreational and domestic chores, including changing nappies, and sex became extremely painful. He continues:
“Around this time I also started to experience regular pins and needles in the outside of my legs and feet and occasional bladder leakage. As I was unaware that symptoms in these parts of my body could be related to my back and there had been no impact to my feet or legs when the chair collapsed, these symptoms were not investigated at the time.”
The applicant says that physiotherapy provided some relief for his low back pain but he was unable to continue mowing lawns. He employed a commercial lawn-mowing service on 15 August 2016.
The applicant says that in September 2016 his department relocated from Bridge Street to 320 Pitt Street. It made it difficult for him to continue to consult Dr Carr, who the insurer, EML, expected him to consult as the nominated treating doctor.
The applicant says that he was unable to physically support his wife during the birth of their second child on 28 November 2016 and in January 2017 he employed a gardener as looking after his garden made his “back pain significantly worse”. Shortly afterwards he commenced paying for an ironing service.
The applicant recounts that he was contacted by telephone by Simon H of EML on multiple occasions from March 2017 when which it was suggested that his workers compensation claim should be closed. He says during a telephone call in late April 2017:
“I acceded to Simon H’s recommendation and accepted his advice that because physiotherapy wasn’t reducing my symptoms, my claim should be closed.”
After receiving EML’s letter of closure of claim on 1 May 2017, he contacted the insurer and advised that he still required medication to manage lower back pain.
The applicant then describes the incident of 7 May 2017, when he:
“slipped on a spilled coffee causing my legs to slide out in front of me and land in a seated position with the main impact to my back.”
He says that this caused a “flare-up” of existing back pain and both the frequency and severity of the pins and needles in his legs, feet and groin increased following the slip. He also experienced worsening bladder dysfunction.
The applicant says that he returned to Dr Carr for treatment and resumed physiotherapy. During a physiotherapy session he advised Mr Keane, physiotherapist that the exercises were causing pins and needles and a burning sensation on the outside of his legs. He was referred for an MRI by Dr Carr, on 29 May 2017. Following the MRI, Dr Carr arranged for the applicant to be seen by Dr Coughlan. He also saw a DrSteel, a neurosurgeon possibly for a second opinion, although Mr Perry suggested that the appointment was at the behest of the respondent’s insurer.
Following the advice of Dr Coughlan, the applicant underwent a T12/L1 microdiscectomy on 29 June 2017. Unfortunately, as his symptoms recurred he came to spinal fusion on 30 January 2018. The applicant states that on 5 May 2018 he was referred for a second neurological opinion by Dr Coughlan with a view to considering further surgical intervention.
By his statement of 19 October 2020, the applicant provides a comprehensive account of the motor vehicle accident of 25 February 2014. He describes it as a four car pile-up in which his vehicle was rear-ended and shunted into the vehicle in front. Following the accident, he attended Canberra Hospital suffering from shoulder, neck and lower back pain. Subsequently, he came under the care of Dr Begum, a general practitioner and was referred to Ms McCusker for physiotherapy. His neck and back pain became “constant”.
On 22 April 2014, the applicant attended Dr Travers, another general practitioner. He states that with the assistance of physiotherapy his back pain “largely resolved”. He said that by August 2014 he was 95% better and only required medication for neck pain.
Unfortunately, the applicant was involved in a further motor vehicle accident on 28 October 2014. He says that the incident aggravated his neck pain. He saw a Dr Goh at Hawker Medical Practice but only on the one occasion. Once again he was referred to physiotherapy. He continues:
“By the end of 2014 I was able to carry out my everyday living activities without being in pain and discomfort. I would however take pain relief medication when needed. Like anyone, I would take pain relief medication when I experienced the odd ache and pain.
The injuries I sustained in the motor vehicle accident on 25 February 2014 did not stop me from working or carrying out my normal and recreational activities.”
The applicant records seeing Dr John Stephen, an orthopaedic surgeon for the third-party insurer in respect of his motor accident claim on 16 November 2015 and, subsequently, seeing Dr James Rowe, an occupational physician, on behalf of his then solicitor on 14 July 2016. He says this of the appointment with Dr Rowe:
“At the time I saw Dr Rowe, I told him that I was suffering from neck and lower back pain, and this is aggravated by carrying out certain activities. I also told Dr Rowe that I was having trouble with walking, bending over, looking after my daughter, doing the dishes and working in the garden. I told Dr Rowe that I had been suffering from these problems since 6 June 2016 and that I therefore believed they were directly related to the incident at work and not to do with the motor vehicle accident.”
The applicant asserts that Dr Rowe chose to ignore this aspect of his history and omit the fall of 6 June 2016 from his medical report.
The applicant recounts in some detail his physical activities and capabilities prior to the incident on 6 June 2016 including walking, bushwalking, hiking and driving long distances. These did not impact adversely on his low back.
The applicant describes the workplace injury on 6 June 2016 in a manner that is consistent with the earlier account. It is, therefore, unnecessary to reiterate it. He also records the effect that his low back pain had on his domestic and recreational activities in a way consistent with his earlier statement.
In August-September 2016, the applicant says that he started to notice pins and needles and bladder leakage. He managed the latter by using the toilet frequently. He continues:
“At the time I did not realise that these symptoms were directly related to the injuries I sustained in my lower back on 6 June 2016. If I knew they were related or relevant, I would have reported these symptoms earlier to my treating doctors so that further investigation could have been undertaken.”
He says that his back pain became worse and bending or lifting could cause “immediate severe pain”. He says that on 5 September 2016 he told Dr Carr that despite physiotherapy his “back was getting worse”.
In the context of increasing back pain, intense pins and needles, and increasing bladder leakage, he saw Dr Carr on 23 December 2016 and was provided with a referral to the Southern CBD Practice of the physiotherapist he had previously consulted and was also referred for an x-ray. The applicant says that the physiotherapy treatment did not help. He says that:
“By late April 2017 I was doing less and less due to the ongoing symptoms of my lower back injury. I was struggling to get through the day due to the severe pain that I was experiencing in my lower back.”
The applicant recounts that during the evenings of 5 and 6 May 2017, he was suffering from severe low back pain for which he took Panadeine Forte. When he went with his family to Ikea Tempe on the afternoon of 7 May 2017, he was not able to carry either of his daughters or to push the trolley. It was in such circumstances that he slipped and fell on spilled coffee. He was attended to by ambulance officers. As he was told that a visit to the emergency department of a hospital would involve a wait of several hours, the applicant chose to go home and rest. He says this:
“When I woke up the next day (8 May 2017), my pain levels were pretty much the same as they had been before I had the fall at Ikea on 7 May 2017.”
He says he went to work as usual and made an appointment to see Dr Carr. He was once again referred to physiotherapy. He persisted with that physiotherapy until 5 June 2017. The applicant continues:
“Like what happened previously, I was unable to complete my home-based physiotherapy exercises due to suffering from severe low back pain or intense pins and needles and burning sensation in my legs and groin. I was also experiencing an increase in the number of occasions where I was having trouble controlling my bladder. However, I remained unaware that the symptoms in my groin, bladder and legs could have anything to do with my lower back injury.”
The applicant saw Dr Carr again on 29 May 2017. He says her note of that consultation is not correct: rather than tell her that the paraesthesia in his lower limbs had settled, he states that he told her that:
“The severity of the pins and needles, burning sensation in my groin/legs would come and go but it never went away. I told her that walking usually, but not always, helped it settle down and it had settled down while I was walking to her surgery.”
The applicant says that shortly after this consultation, on 4 June 2017, he had an acute episode of low back pain with pins and needles down both legs when reaching to get a heat pack from a microwave. An ambulance was called to his home. Again, the applicant declined to go to the emergency department. He says that the ambulance record of the history he provided is incorrect in several material respects.
The applicant saw his physiotherapist again on 5 June 2017 by which time he was struggling to do the exercises that the physiotherapist required him to perform. He told the physiotherapist about his leg, groin and bladder issues and was told to consult his GP immediately. He saw Dr Carr on the afternoon of 5 June 2017. He was provided with the referral for an MRI. The applicant says that on seeing Dr Carr again on 8 June 2017:
“I explained to Dr Carr the true extent of the symptoms that I had been suffering from and experiencing since 6 June 2016. I also told Dr Carr that I thought my symptoms would have gotten better with time but this has unfortunately not been the case. I told her that I did not realise that the referring pains into my legs including pins and needles and numbness, and my urgency to go to the toilet and suffering from incontinence could be a result of the injuries I sustained at work on 6 June 2016.”
In June 2017, the applicant saw both Dr Steel and Dr Coughlan. Both doctors recommended surgery in respect of his low back. He says that Dr Coughlan required him to undergo further scans pre-surgery.

SYDNEY DOCTORS

The applicant saw Dr Carr following the fall at work on 6 June 2016. She recorded that there was no bruising on his head but a limited range of movement of the low back with some tenderness over “left lower back superior to pelvic rim”. She referred the applicant for analgesics and for “review if any further problems”.

The doctor saw the applicant again on 29 June 2016, at which time he complained of tenderness adjacent to the left L5 vertebra. There were no neurological signs on examination. She prescribed anti-inflammatory medication and suggested a physiotherapy program to develop better core body strength. She recorded a past history of neck injury and lower back pain after the motor vehicle accident in 2014 and recorded that the most recent incident “seems to have exacerbated it”.
On 5 September 2016, Dr Carr recorded that the applicant’s pain persisted “exacerbated by having to lfit [sic] child and probable poos posture.” There were no neurological signs but she recorded pain and tenderness over the lower lumbar spine. The applicant was to continue on anti-inflammatory medication and start a Pilates course.
On 23 December 2016, Dr Carr recorded that the fall from a chair had exacerbated the applicant’s pre-existing lumbar problem. She sought x-rays noting that the back was tender adjacent to L4, 5 vertebra and adjacent left side facet joint. On 1 February 2017, the doctor recorded that the patient had improved. The note continues:
“X-rays show #1 but no specific symptoms there. Still has pain at L3-L5 exacerbated after sitting for long periods at work and when dealing with infant children who need to be lifted etc.”
The doctor advised the applicant to seek household help, take a break from sitting at work and add Panadeine Forte at night if he was unable to sleep due to pain.
On 2 February 2017, Dr Carr records that she printed a script for 15mg Mobic capsules for the applicant. On 8 May 2017, she records the following:
“Fell at Ikea yesterday landing on buttocks, developed pins and needles in ball of elft [sic] foot, cahe on loer back 2/10 good response to Panadol. Prior to this he has had back pain and been treating it with Mobic and Panadeine Forte. Took 2 PF Friday night.
Usually takes PF 2 to 3 nights/week but can have good weeks.
Family life is chaotic as baby non-stop crying with GOR.
O/E no evidence of neurological damage, sensation NAD lower NAD tone NAD ROM of back limited with stiffness and some pain.”
The doctor recorded the applicant required physiotherapy noting that he had ceased physiotherapy six weeks ago as life was “too busy because of sick daughter”.
On 29 May 2017, Dr Carr recorded that the applicant had a good response to physiotherapy. He had some early morning pain which “goes away after taking Mobic”. The doctor recorded that the patient was too busy to do exercises at home on weekends although he was seeing a physiotherapist twice weekly.
On 5 June 2017, the applicant presented with paraesthesia in both legs. He advised that it had become worse over the weekend. On examination, the applicant had limited flexion and extension but had no sensory loss although she records an absent left ankle jerk. She concluded that the applicant required a neurological referral and a change of medication to Tramal.
On 8 June 2017, the doctor recorded that the MRI she requested demonstrated a disc protrusion at T12/L1. She continues:
“Feels he has had some pain around chest wall in a band since fall at work but intermittent.
Alos [sic] some bladder symptoms with urgency and incontinence.
Has been buy [sic] with family demands and has put off dealing with symptoms because of this in view of MRI changes nes [sic] referral to spinal surgeon.”

SUBMISSIONS

The submissions of the parties are in writing and I do not intend to reiterate each of the arguments made by counsel. Mr Doak attacked the reliability of the applicant’s evidence. His challenge to the applicant’s veracity turned on the applicant’s explanation for the omission of any reference to the incident on 6 June 2016 in the report of Dr Rowe and to the inconsistencies between the applicant’s statement evidence and the medical record.
Mr Doak submitted:
“The medical opinion relied on by the applicant is based on the inaccurate history of the onset of the neurological symptoms and as such cannot be accepted as persuasive evidence in support of the applicant’s claim.”
In short, the respondent’s case was that the contemporaneous medical evidence did not support the conclusion reached by the applicant’s specialists that the 2016 injury was the most likely cause of the onset of neurological symptoms and, in turn, the need for treatment and the applicant’s incapacity.
Mr Doak took the Commission through the medical histories recorded by Dr Stephen,
Dr Rowe and particularly Dr Carr. He submitted that the applicant’s evidence that he did not think “too much about” symptoms of pins and needles in his lower limbs and bladder leakage was quite “remarkable.” As it was inconsistent with Dr Carr’s clinical record it should not be accepted.
The absence of any account of neurological symptoms or signs in the serial examinations of Dr Carr prior to the fall at Ikea on 7 May 2017 must be contrasted with the doctor’s notation on the day following the fall that the applicant “developed pins and needles in the ball of his left foot”.
Mr Doak referred to the need for the medical opinion evidence to be based on a factual foundation that was sufficiently like the facts proven in evidence. He referred to City of Brimbank v Halilobic [2000] VSCA 12 at [23] and Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; 59 ALJR 844 at 846.
By his submissions in reply, Mr Perry emphasised the following:
(a)    The respondent did not dispute that the applicant suffered injury to his lower back in the June 2016 incident;
(b)    There weas no significant challenge to the opinion of Dr Fearnside that the mechanism of the fall in June 2016 was consistent with the pathology subsequently demonstrated in the applicant’s spine at T12/L1;
(c)    The respondent did not address the radiological findings of 9 January 2017 which demonstrated a lesion at T12/ L1 with 5% loss of body height;
(d)    All of the treating doctors and Dr Fearnside were of the view that the fall from the chair played “the most significant role” in the onset of the applicant’s subsequent symptomatology, and
(e)    Dr Smith, the respondent’s orthopaedic surgeon had expressed the opinion that the fall at work had caused an aggravation of the applicant’s lumbar degenerative disease but did not state that the applicant had “recovered from the chair incident”.
Mr Perry continued:
“The Commission can comfortably conclude, then, that when the applicant fell backwards from a collapsing chair, twisting, jarring and compressing his spine, he sustained injury causing him enduring pain, restriction and disability, and making a significant contribution to the requirement that he undergo surgery on three occasions, 29 June 2017, 30 January 2018, and 11 September 2018.”
Mr Perry submitted that the Commission would not find that the applicant’s evidence was “crafted” or “tailored” for the purposes of personal gain. Rather, the Commission should accept the applicant’s evidence. It was “more than conceivable” that the patient might nor report slowly developing pins and needles in his lower limbs or urinary incontinence to his general practitioner. More so as Dr Carr reported he tended to underplay the severity of his symptoms as he was trying to work and look after his young family. Mr Perry noted that on 8 June 2017, well before litigation was considered in the matter, the applicant told Dr Carr that he had some bladder symptoms with urgency and incontinence following the fall at work.
It followed that there was no basis to reject the almost unanimous expert evidence that the June 2016 fall had a causal role in the development of the applicant’s symptoms. Mr Perry then analysed each of the medical reports with a view to establishing that the opinions were based upon specialised knowledge and consistent with the facts proven in evidence. He continued:
“The evidence referred to above supports the contention that the applicant had been suffering symptoms of increasing severity from the time of the chair incident up to the date of the Ikea incident. The effect of that incident was to cause a temporary worsening of those symptoms. There is, on a proper analysis, no basis in the evidence at all to the effect that the applicant had recovered from the chair incident.”
In support of the applicant’s case Mr Perry refers to the applicant’s email to Mr Hitchcock of 19 June 2017, within weeks of the May 2017 incident, in which he sets out his symptoms over the previous 12 months. The applicant submitted that it was unlikely that this account was “fabricated”.

DISCUSSION AND FINDINGS

Credit

The first issue raised by the respondent is the reliability of the applicant’s evidence. The attack on the applicant’s credit was twofold. First, his history to Dr Rowe in July 2017 and his subsequent “comment” on that report is materially different to the account in his evidentiary statements. The former related the worsening of back symptoms and the development of leg symptoms to the motor vehicle accident in 2014. The latter related the development of these symptoms to the chair incident in June 2016.
Secondly, the respondent submitted that the applicant’s account of the development of his symptoms after the June 2016 incident was clearly different to that recorded in the clinical record. In particular, there was no corroboration in Dr Carr’s record for the development of neurological symptoms following the June 2016 injury and no record of neurological signs before the fall at Ikea in May 2017.
Dr Rowe saw the applicant at the request of his former solicitors on 14 July 2016 for the purposes of providing a report for use in the CTP claim arising out of the motor vehicle accident on 25 February 2014. The date of the report and Dr Rowe’s consultation with the applicant is some five weeks after the June 2016 injury. The doctor recorded a history that the applicant “continues to suffer with neck and back pain aggravated by certain activities”. He had recently suffered a flare-up of his symptoms when he moved house. He had sought further medical treatment including physiotherapy. Dr Rowe records the following:
“Mr Douglas has trouble bending over, changing nappies, doing the dishes, and working in the garden.
He says his sex life has been affected by his back and leg pain.”
On examination, Dr Rowe found no sign of radiculopathy in the lower limbs. There was no abnormality on neurological examination. However, the doctor found symptoms and signs of chondromalacia patella in the left knee. He recorded that the applicant had neck pain but had no radiation to his limbs. He continued:
“He also has middle-low-back pain, and pain in the left and right knee, more so in the left than the right.
He has some difficulty walking and he has trouble coping at home.”
Dr Rowe expressed the opinion that the applicant had continuing restrictions on his social and leisure activities. The applicant required further x-rays of his neck, low back and left knee and may require further treatment depending on the outcome of these investigations. He also required an OT assessment to assess his “domestic and gardening requirements”. The doctor thought that three hours per week domestic assistance and two hours per week of gardening assistance over a period of three months would be reasonable.
Plainly, there is no reference to the June 2016 injury in the history recorded by Dr Rowe. According to the applicant, he gave Dr Rowe an account of the incident but Dr Rowe chose to omit it from his report as it would “complicate” the CTP claim.
On 12 October 2016, the applicant’s solicitors wrote to Dr Rowe enclosing further medical material and noting that the applicant had “reviewed the report in its current form and has provided some comments”. These included:
“There have been other injuries and flare-ups related to household duties such as gardening, cleaning and picking up or caring for his daughter. These flare-ups generally leave him incapacitated for 24 hours.”
“Page 3, paragraph 9 – pain in the client’s neck, as well as his back and leg have also affected his sex life.”
“Page 5, question 6 – the client is able to maintain his employment requirements as he regularly works from home. While his home office set-up does aggravate his back he is able to manage with over the counter medications.”
“Page 5, question 7 – the client’s ability to maintain his pre-injury leisure activities has significantly reduced. Prior to his injury the client was an avid hiker. He would regularly take long hikes requiring him to carry a day pack. He was also a keen gardener performing tasks such as mulching, pruning and weeding. He is now unable to walk, hike or garden for any extended period of time due to his shoulder and low back pain. These were tasks he could easily complete prior to sustaining his injury.”
By his evidentiary statements, the applicant maintains that the restrictions on his personal, domestic and recreational activities resulting from low back pain only became apparent after the June 2016 injury. Irrespective of whether Dr Rowe chose to knowingly omit a relevant incident from his report of 14 July 2016 to further the applicant’s case there can be no doubt that the applicant instructed his own solicitors in October 2016 to inform Dr Rowe that he had ongoing back pain which interfered with many facets of his existence which he attributed to the motor vehicle accident. The contents of the paragraph above must be contrasted with his evidence in these proceedings that prior to the June 2016 injury his hobbies “included walking, gardening, hiking, geocaching, travel and swing and rock and roll dancing” and he was able to perform household chores.
If, as he now states these symptoms did not arise until after his work injury and he was physically active prior to that, it appears he was content to allow his CTP claim to be resolved on the false basis that his low back symptoms had not significantly resolved with the passage of time but rather had progressed over a period of several years and significantly interfered with his activities of daily living.
In my opinion the differing accounts of the impact of the motor vehicle accident for the purposes of the CTP claim and in these proceedings suggest, at least, that the applicant is a poor historian and that his account of the sequelae of the various injuries is not always reliable. There are other aspects of the evidence which support that view.
When Dr Bentivoglio saw the applicant on 4 December 2017, he recorded the following history of the applicant’s recovery from the 2014 motor vehicle accident:
“Of relevance in Mr Douglas is a past history of the motor vehicle accident in 2014, when he injured his neck and to a lesser extent his back. He maintained that these injuries to his neck and back settle up to 10 weeks, and he was back to normal. It took 12 months for the neck pain to settle to 90% normal.”
That history of rapid recovery from low back pain is to be compared with the history given to Dr Stephen almost three years after the accident and to Dr Rowe more than three years after the accident.
While it is of less significance than the above discrepancies, the applicant’s initial evidentiary statement, which was presumably prepared to by his former solicitors for the purpose of WCC matter 4233/18 provides no history of back pain before the June 2016 injury. He deals with the 2014 motor vehicle accident by stating that he suffered a soft tissue injury to the neck which resolved with physiotherapy.
Bearing in mind the caution required by such cases as Mason v Demasi[2009] NSWCA 227, Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], and Davis v Council of The City of Wagga Wagga [2004] NSWCA 34 it is necessary to carefully consider his evidence in the context of the contemporaneous medical and other evidence.

The respective medical cases

As Mr Perry submitted the medical specialists nearly unanimously express the opinion that there is a causal nexus between the applicant’s incapacity in 2017 and beyond and the June 2016 injury. The possible exception is the opinion of Dr Smith contained in a report addressed to the respondent’s insurer dated 8 March 2018. Contrary to all of the treating medical evidence, Dr Smith expressed the opinion that the lesion at T 12/L1 “is something of a red herring’. Thus, the surgeries performed by Dr Coughlan were unlikely to be related to an injury, or to benefit the applicant. The applicant’s low back symptoms were more likely caused by a lower lumbar lesion at L4/5 and L5/ S1. He expressed the rather odd opinion that the applicant’s incontinence might be caused by prostate disease and his groin pain by hip arthritis. He expressed the opinion that:
“I would not have thought that the appearances are T12 L1 are consequent to the work fall or the fall in IKEA. In my opinion both the work fall and the injury at IKEA both caused aggravation to his previously symptomatic lumbar degenerative disease.”
Dr Smith continued:
“but I think the predominant cause of his symptoms, is this degeneration at L4-5 and L5-S1. Both of these levels would generate pain prior to his work episode of June 2016.”
By a supplementary report dated 15 November 2018, Dr Smith considers the notes of
Dr Sue Carr and reports of Dr Steel dated 15 September 2017 and Dr Coughlan dated 16 March 2018. Dr Smith observes that Dr Coughlan does not appear to consider the possibility that the injury at IKEA in May 2017 and the June 2016 injury are “more or less the same type of injury”. He states:
“The material provided does not cause me to alter the opinion of the available injuries, the most likely one to have caused a protrusion of a degenerative disc at T12-L1, was the fall in IKEA stop it is not possible to be certain in the absence of any MRIs being undertaken prior to the fall in IKEA.”
He states that if the lesion at T 12-L1 was produced by the June 2016 injury it “would have produced his clinical situation soon after the fall of 6 June 2016”.

The applicant relies primarily on the opinions of Dr Coughlan, Dr Steel Dr Fearnside, all of whom are neurosurgeons. Dr Coughlan has, of course, treated the applicant since 16 June 2017. In his report dated 16 March 2018, he recorded the following history:
“Mr Douglas had a motor vehicle accident in 2014 in which he sustained whiplash injury to his neck and subsequently suffered low back pain. There was no evidence of neurological deficits. He was managed with simple analgesia and improved with physiotherapy over a period of around three months. On 6/6/16, he had a chair collapse beneath him at work. From this time onwards he experienced lower back, neck and shoulder pain, exacerbated by bending and lifting. Physiotherapy providers some initial but temporary relief. Neck and shoulder pain slowly improved over the following 12 months, though he continued to experience occasional flareups stop his primary concern was ongoing lower back pain which radiated to both hips and legs (left worse than right) comp, ranging from an aching six sensation to sharpshooting pain in his legs. He also complained frequent pins and needles in his legs, feet and groin. He was taking regular analgesia to relieve the pain; however this had limited benefit and problematic side effects (e.g. drowsiness, brain fog) which impacted his ability to function at work and drive. Furthermore, he was experiencing urinary frequency and incontinence that was causing significant disruption to daily activities and nighttime sleep. These symptoms had only occurred since the fall on 6/6/16.”
On the basis of that this history, Dr Coughlan expressed the opinion that the June 2016 fall was the primary cause of the applicant’s “subsequent and ongoing symptoms”. The slip at IKEA in May 2017 “exacerbated his symptoms, leading him to seek further review from his GP who referred him for MRI scan.” He continued:
“It is theoretically possible that the MVA caused the thoracic disc herniation, but there is no evidence to suggest this. The mechanism of injury from the MVA is unlikely to have caused disc herniation at the T 12-L I level. Most disc herniations occur at L4-5 or LS-S 1. A thoracolumbar herniation suggests an unusual traumatic force, which is consistent with the fall from the chair. It is impossible to be absolutely certain of the causative injury given the lack of prior MRI scans. There are no pre-existing or degenerative conditions or lifestyle factors that have contributed to his ongoing symptoms. It is possible that the Tl 2-LI disc herniation was a result of all three injuries i.e. the MVA in 2014, the fall at work in June 2016, and the fall at IKEA in May 2017. In my opinion, based on the history provided to me, the mechanism of the injury and the pathology demonstrated on MRI scans, it is likely that the fall from the chair at work in due June 2016 was the major causative factor.”

Dr Fearnside, who saw the applicant on 5 November 2020 at the request of his solicitors, took a reasonably similar history. He recorded that the applicant made a complete recovery from the back pain he sustained in the 2014 motor vehicle accident and thereafter was able to live and work normally. Shortly after the workplace injury, he experienced urgency of micturition and urinary incontinence, stabbing pain in his left leg, burning pain in the left thigh, and bilateral lower limb paraesthesia. The effect of the fall on 7 May 2017 was to aggravate his previous symptoms. There were no new symptoms. Rather:
“The exacerbation of pain continued for two weeks and he said that the symptoms then return to those levels which he was experiencing prior to the fall and there was no change in the pattern of the pain.”
Dr Fearnside expressed the following opinion on causation:
“It Is more likely than not that the workplace Injury on 6/6/16 either caused or
aggravated the T12/L 1 disc protrusion. As the earliest MRI scan which was available was 7/6/17, it is not possible to know the state of his back between 6/6/16. and 7/6/17 because only plain X-rays were taken. It is probable that the fall caused the T12/L 1 disc protrusion.
The mechanism of the fall is consistent with such an Injury and pathology. Mr Douglas did suffer a personal injury arising out of his employment with the Department of Planning and Environment on 6/6/16.
His employment is, therefore, a substantial contributing factor.”

Dr Steel, the neurosurgeon who initially saw the applicant on the same day as Dr Coughlan expressed the same opinion on the basis of a very similar history. Mr Perry suggested in argument that the applicant saw Dr Steel at the behest of the respondent’s insurer. While nothing turns on this, it seems more likely that Dr Carr made the referral although the insurer agreed to pay for it and sought a supplementary opinion from the doctor. Relevantly, that opinion contains the following:
“It is impossible to say that his lower back injury has resolved when his claim was closed in May 2017 as it is not clear what the pathology is that was causing his low back pain. His lumbar spine MRI scan shows mild disc desiccation meaning loss of signal. There is a central annular tear at L4-5. These do not always indicate an acute traumatic event but can occur with the passage of time. It is possible however that this was what was causing his pain following his motor vehicle accident. There are no factors such as pre-existing or degenerative conditions or lifestyle factors outside the workplace that have contributed to his ongoing symptoms. He has a large thoracolumbar disc which is unusual. It is possible that the disc has herniated as a result of all 3 episodes i.e. the motor vehicle accident in 2014, the fall on 6/6/16 at work and the fall at Ikea on7 /5/17. He is too young to have significant underlying disc degeneration and his disc protrusion is very unusual being at the T12-L1 level. Most disc herniations are at L4-5 or LS-S1. Hence, it would appear his spine has been impacted by an unusual traumatic force i.e. such as the fall. The motor vehicle accident is unlikely to have led to a thoracolumbar disc herniation. It is impossible to state which contributes more as the only thing we have to go on is his description of his symptoms and the mechanism of the injury. Obviously if MRI scans have been performed after 2014 or following the incident in 6/6/16, then we may have a better idea. Based on the history given to me, the mechanism of the injury and the pathology seen on the scans, it appears most likely to me that most of the damage was done during the fall on 6/6/16”
I have no difficulty in rejecting Dr Smith’s opinion that lesion at T12/L1 treated by the doctors is a “red herring”. There are four neurosurgical opinions from spinal specialists to the contrary in evidence and to these might be added the opinion of Dr Sears to whom Dr Coughlan referred the applicant for a second opinion in respect of a third surgical procedure on 13 June 2018. It is possible, as Dr Smith suggests, that the applicant suffered injury to the lower lumbar discs in one or more of the three incidents after which he experienced back pain. That may be consistent with some aspects of the clinical record. However, the applicant’s need for treatment and incapacity patently results from the lesion at T 12/L1. The remaining issue is whether the evidence establishes a satisfactory foundation for the medical opinion evidence.
I have alluded to the different accounts given by the applicant of his back symptoms following the motor vehicle or, more accurately, in the period before the injury of June 2016. I note, however, that the doctors who examined the applicant prior to 6 June 2016 found no clinical evidence of back pathology. Dr Travers, a general practitioner who treated the applicant following the motor vehicle accident records in a report of 11 July 2014 that the only sequelae of for the accident it might be some low-grade neck pain. She reported that on 8 May 2014 his lumbar back pain had “largely resolved”.
Dr Stephen recorded some intermittent back pain when he saw the applicant in 2015. The applicant took the occasional over-the-counter painkillers or anti-inflammatory medication and did not suggest that there was any significant interference with his activities. There was no restriction of lumbar movement but discomfort on forward flexion on examination.
Dr Stephen thought that the condition was “minor”.
Other than Dr Carr, the applicant saw Dr Rowe and a physiotherapist in the period following the work injury. I have referred to Dr Rowe’s examination in 2016 above, several weeks after the work injury. Dr Rowe found a “minimal loss” of the range of lumbar movement. There were apparently no neurological signs although the doctor observed the right thigh was slightly smaller than the left.
The notes of Sydney Physiotherapy Solutions where the applicant first attended on 6 July 2016, on referral from Dr Carr, record that the applicant experienced pain in the neck, lower spine and the left posterior pelvis/hip after falling from a chair at work. For the past three weeks he had experienced some left knee pain as well with walking for more than 20 minutes. The note continued:
“Phx-2.5 years ago MVA-First 3 weeks quite painful with 2 episodes of sharp pain which caused collapse. Before falling off chair Lower Back would be aggravated by mowing the lawn, doing lots of dishes and sex. Neck was relatively okay-some reminders of it I/T”.
If caution must be exercised in respect of the notes of medical practitioners, then greater caution is required when dealing with the notes of physiotherapists. However, the content of the note is consistent with the history recorded by Dr Rowe in respect of the state of the applicant’s low back prior to the work injury in June 2016. Taken together these histories suggest that the applicant had some significant back symptoms immediately prior to this injury, which interfered with aspects of his domestic activity. This contributes to the difficulty in establishing the effect of the work injury on the applicant’s symptomatology.
The contemporaneous evidence is also inconsistent with the history given to the medical practitioners that following the May 2017 fall that there were “no new symptoms “, “no change in the pattern of the pain” and that the symptoms returned to their preinjury state within two weeks. The notes of Sydney Physiotherapy Solutions for 17 May 2017 record the following:
“took some time off from work due to kids being sick
stopped doing exercise
taking panadene forte to get through night with sleep
9 days ago aggravated everything- slipped at Ikea
fell on spine and jarred back
constant pain since
saw GP the next day after this seeing again In 3 weeks
no taken time off work
managing pain with meds if needed- mobic every day
sore in lower back- tends to be on left side
gets sudden shock Into leg sometimes-maybe once or twice per day
not everyday but some days maybe 3 times
left knee can be sore also since slip
wall squats used to aggravate knee”.
On 22 May 2017, the physiotherapist, Mr Keane recorded that the applicant still had “constant” pain in the centre of the back although had experienced “less pins and needles over the weekend”. On 25 May and 2017, the physiotherapist recorded that the applicant had found it “easier during the week“ with “less pins and needles “. However, four days later, on 29 May 2017 the note records that the applicant was getting worse over the weekend.
Then on 5 June 2017 the applicant reported having the “worst pins and needles” affecting all of both legs. But he also recounted the incident over the weekend which resulted in the applicant collapsing and the ambulance being called to his home. The physiotherapist also recorded “issues stopping urine-2 week history”. The physiotherapist advised him to see his general practitioner.
The ambulance record of the attendance at the applicant’s home on 4 June 2017, which was also tendered in the applicant’s case, is, relevantly, as follows:
“c/t 46yom at private residence post exacerbation of back pain. OA pt states has been dealing with chronic back pain since mva 3 yrs ago, Pt had nil fractures, Pt states he slipped and fell at Ikea 1week ago and has been getting an Increase In frequency of back spasms, Intensity of pain and altered sensation since, Pt states this am was reaching for heat pack from microwave when he had Intense 10/10 lower lumbar pain with pins and needles down both legs, Pt layed down and waited for back pain to recede but wife called Ambulance after pain did not Immediately stop, OE pt obs as stated, Pt no longer has any back pain, Pt still states some tingling In R foot which he states he has experienced before but over past few days has been worse during back spasm. Pt has taken Moblc this am but not his usual panadelne forte. Transport options discussed with pt extensively and with pt wife who states Is an ED nurse, Ambulance transport offered to pt who may not be able to get to Hospital If pain returns due to mobility and wife caring for two young children. Pt and wife eventually declined transport after discussing between themselves the advantages/disadvantages of Hospltal transport or GP referral which pt has booked In to see tomorrow. Advice left with pt to seek further Investigation/management of this chronic Issue which Is getting worse and to not hesitate calling back If pain returns and Is unable to be acutely managed.”
The “Patient Complaint” is recorded as follows:
“altered sensation tingling & pins and needles>> Both legs during back pain. Currently only has some tingling remaining In R foot; pain >> Not currently. Pt states when pain present It feels like someone stabbing a knife in his back; urinary Incontinence > > Pt states over past few days has been slightly Incontinent of urine.”
Both the physiotherapy note of 5 June and the ambulance record of 4 June 2017 have a record of the applicant’s urinary problems commencing recently. The physiotherapy record refers to a two-week history whereas the ambulance record refers to urinary, incontinence “over past few days”. That is inconsistent with the applicant’s account. I accept that a patient may not associate urinary incontinence with back problems and may not report them to medical practitioners. But, in the context of my finding in respect of the reliability of the applicant’s evidence it is difficult to reconcile these histories with him having urinary difficulties some before the fall at IKEA.
Secondly, it is extremely difficult to reconcile the general thrust of the applicant’s complaints recorded in the excerpts set out above with a conclusion that his symptoms returned to their preinjury level a few weeks after the fall at IKEA on 7 May 2017. On the contrary, the records are only consistent with a significant worsening of the applicant’s back condition.
Thirdly, following the fall the applicant complained to his physiotherapist of a sudden frequent shock into his leg, which might occur three times a day, and escalating pins and needles in his lower limbs. There is no record of pins and needles in the medical record before the fall at IKEA. I can accept that the applicant might not associate these symptoms with back pathology. However, it is a difficult to imagine that he would not report it to Dr Carr or the physiotherapist who examined his lower limbs from time to time for neurological deficits. Importantly, Dr Carr’s note on the day after the fall at IKEA records the following, “fell at IKEA yesterday landing on buttocks developed pins and needles in ball of left foot”. In the context of the case, that history is highly suggestive of the pins and needles developing after the recent fall.
The discrepancies between the clinical record and the applicant’s evidence might be put to one side if his evidence was otherwise reliable. However, in the circumstances of this case they only fortify my previously expressed opinion of the reliability of his evidence.
On my analysis, the histories recorded by the applicant’s neurosurgeons, both treating and qualified, and assumed as the basis of their opinions, are not consistent with the facts proven in evidence. At the very least the applicant experienced increasingly more severe symptoms in the period after the fall at IKEA. But, it is also likely that he experienced urinary symptoms in the period after that fall and, with less certainty, the onset of pins and needles in his lower limbs. These matters are grossly inconsistent with the assumed histories of the doctors who support the applicant’s case.
There are three other issues that I should briefly address. First, Mr Perry placed some emphasis on the nature of the fall of 6 June 2016. There is a good deal of medical evidence addressed to this. However, all of the doctors accept the possibility that the other incidents may have contributed to the applicant’s T12/L1 lesion. I do not understand them to opine that the fall the applicant sustained at IKEA could not have caused the lesion. Rather, the applicant’s account of his symptoms following the fall led to the conclusion that it should not be implicated in a significant way.
Secondly, Mr Perry placed emphasis on the x-ray of 9 January 2017, which demonstrated a fracture at the T12/L1 with a 5% loss of body height. But none of the applicant’s medical practitioners suggest that the x-ray evidence is consistent with the applicant’s disc lesion. Dr Steel, for example, thought that the suggestion of fracture was an “over reading’ of the x-ray and that the only radiological evidence which would assist in proving the origins of the applicant’s lesion would be an MRI scan.
Thirdly, there are a very occasional references to leg pain in the medical histories before the fall at IKEA. From, the time of Dr Rowe’s examination there is a reference to left knee pain which the doctor appears to vaguely attribute to the motor vehicle accident and which he diagnosis as chondromalacia patella. There are further references to left knee pain after the fall at IKEA. It is not clear whether they are to be explained on the basis of chondromalacia patella, a condition of the knee, or whether they are part of the symptom complex associated with the applicant’s lesion. It is, however, difficult to accept that Dr Rowe may have mistaken symptoms emanating from the back for chrondomalacia of the knee, given that he examined the knee at his consultation.
There is also a solitary reference to “pain radiating to the l” in the physiotherapy note of 12 July 2017. But, it was said to be no longer occurring on subsequent visits where the physiotherapist made specific enquiries about leg pain. In those circumstances, I doubt whether it could be inferred that the applicant had neurological symptoms consistent with his T12/l1lesion at that time.
I accept the applicant’s submission that to succeed on this claim it is only necessary for him to prove that the work injury material contributed to his need for treatment and incapacity in accordance with the common law test of causation stated by the High Court in March v Stramare (E & MH) PtyLtd (1991) 171 CLR 50, which has been applied in workers compensation cases since Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716.
While the applicant undoubtedly suffered an injury to his low back on 4 June 2017, the evidence does not establish that it materially contributed to his T12/L1 lesion which has given rise to a need for surgery and an incapacity for work. He has not proven that the need for treatment and incapacity claimed in the Application results from the injury. The substantial body of medical opinion that supports the connection does so on a basis that is inconsistent with the evidence before the Commission and my findings. Regrettably, I make an award for the respondent.

[2021] NSWPIC 249

16 July 2021