Egan v Kids Department Store Pty Limited
[2021] NSWPIC 215
•29 June 2021
CERTIFICATE OF DETERMINATION OF MEMBER CITATION: Egan v Kids Department Store Pty Limited [2021] NSWPIC 215 APPLICANT: Yvonne Egan RESPONDENT: Kids Department Store Pty Limited MEMBER: Rachel Homan DATE OF DECISION: 29 June 2021 CATCHWORDS: WORKERS COMPENSATION- Claim for compensation pursuant to section 60 for proposed lumbar surgery; whether injury to the lumbar spine; whether surgery reasonably necessary as a result of injury; accepted injury to cervical spine and right lower extremity in 2009 fall; apart from a single clinical note referring to lumbar symptoms on the day of the fall, no further mention of lumbar symptoms in connection with the fall in extensive medical and factual evidence for more than five years; Held- Commission not satisfied that applicant sustained lumbar injury in the fall; even if there was an injury, the present need for surgery did not result from such injury; award for the respondent in respect of the proposed treatment
DETERMINATIONS MADE: 1. The applicant has not discharged her onus of establishing injury to the lumbar spine in the incident on 9 July 2009.
2. The applicant has not discharged her onus of establishing that the need for the lumbar surgery proposed by Associate Professor Sheridan results from the injury on 9 July 2009.
3. Award for the respondent in respect of the claim pursuant to s 60 of the Workers Compensation Act 1987 for the costs of and incidental to the L2/S1 laminectomy and L4/5 fusion proposed by Associate Professor Mark Sheridan.
4. The Commission declines to make any order with regard to the incurred medical and related treatment expenses claimed.
STATEMENT OF REASONS
BACKGROUND
1.Ms Yvonne Egan (the applicant), who is now 68 years old, was employed by Kids Department Store Pty Ltd (the respondent) when she slipped and fell on 9 July 2009. Liability for an injury to the applicant’s cervical spine and right lower extremity in the fall has been accepted by the respondent’s insurer. The applicant claims that she also sustained injury to her lumbar spine in the same incident.
2.On 5 November 2019, the applicant sought approval to undergo a L2/S1 laminectomy and L4/5 fusion surgery as proposed by Associate Professor Mark Sheridan. Liability for the alleged injury to the applicant’s lumbar spine and the proposed surgery was disputed on 20 March 2020. That decision was maintained following internal review pursuant to s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in further notices issued on 14 April 2020, 8 May 2020, 22 May 2020 and 11 November 2020.
3.The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the former Workers Compensation Commission on 18 February 2021. The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.
4.The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of incurred medical and treatment expenses as well as the proposed L2/S1 laminectomy and L4/5 fusion surgery.
PROCEDURE BEFORE THE COMMISSION
5.The parties appeared for conciliation conference and arbitration hearing on 26 May 2021 by telephone. The applicant was represented by Mr Steve Hickey of counsel, instructed by Ms Anna Gordon. The respondent was represented by Ms Nicole Compton of counsel, instructed by Mr Neil Bennett.
6.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
ISSUES FOR DETERMINATION
7.The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to her lumbar spine on 9 July 2009;
(b) whether the L2/S1 laminectomy and L4/5 fusion surgery proposed by Dr Mark Sheridan is reasonably the necessary as a result of the injury, and
(c) the entitlement to the incurred medical and treatment expenses claimed.
EVIDENCE
Documentary evidence
8.The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 6 April 2021;
(d) documents attached to an Application to Admit Late Documents lodged by the applicant on 5 May 2021, and
(e) documents attached to an Application to Admit Late Documents lodged by the respondent on 13 May 2021.
9.Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
10.The applicant’s evidence is set out in written statements made by her on 16 November 2020 and 1 April 2021.
11.In her first statement, the applicant stated that she had a titanium cage inserted into her neck after she fell and injured herself in 2000. The applicant was doing fine and had no issues with her neck until she reinjured herself on 9 July 2009.
12.On 9 July 2009, the applicant was entering the shopping mall in which she worked when her foot slipped, sending her sliding towards a fixture in a shop. The applicant twisted her neck sideways in order to avoid hitting her head and fell on the floor with her right leg crossed underneath her left leg. The applicant fell on her left shoulder. The applicant was in immediate pain and could not move.
13.A security guard assisted the applicant by fetching a wheelchair and taking her to a nearby medical centre where the applicant’s usual general practitioner, Dr Nguyen, was practising.
14.Dr Nguyen sent the applicant for x-rays of her right ankle as it was causing the most pain. Dr Nguyen advised the applicant that she had fractured her ankle. The ankle was bandaged and the applicant referred to a physiotherapist who applied plaster to her leg. The applicant said she told the doctor that her neck and back were also sore but he advised her to leave it for the moment as it was a whiplash injury and likely to settle down by itself.
15.The applicant’s foot was in plaster for six weeks. After the plaster was removed, the applicant went back to her doctor and complained that her neck and back were still hurting. The applicant was sent for x-rays on her neck. When the results were returned, the applicant was referred to Dr Sheridan who had previously operated on the applicant’s neck. Dr Sheridan advised the applicant that she required another fusion surgery on her neck.
16.Dr Nguyen referred the applicant for a course of physiotherapy. The applicant said her physiotherapist informed her that when she fractured her ankle she also twisted her knee which in turn caused problems with her lower back. The applicant took the letter to Dr Nguyen but he brushed the letter aside. The applicant said she still had the letter, dated 21 February 2009.
17.The insurance company paid the costs of the surgery on the applicant’s neck, which was performed in 2010. When the applicant came home from hospital, she took time off because her neck and back “were not 100%”.
18.The applicant could not afford to not work and found employment with another employer in 2011. The applicant said she kept complaining about her lower back being sore but no one took any notice of her.
19.At some point, Dr Sheridan referred the applicant to Dr Renata Bazina. The applicant was prescribed with cortisone injections into her cervical spine and lumbar spine but the treatment did not work. Dr Bazina prescribed medication but the applicant did not like the effects of the medication. After that, Dr Bazina performed a radiofrequency procedure in the applicant’s lower back. After the last session, the applicant felt extremely ill and had trouble walking. The applicant saw Dr Nguyen three days later and was referred to an orthopaedic specialist, Dr Walker.
20.Dr Sheridan prescribed more cortisone injections. The applicant had six in her neck and about four in her back. The treatment did not help. Dr Sheridan advised the applicant that the only option available to her was surgery to her back.
21.The applicant’s physiotherapist had advised that he was no longer able to help the applicant and she really needed the operation.
22.The applicant wished to undergo the surgery to improve her quality-of-life and to be able to get through the day without being in distressing pain. The applicant said this had been going on since 2009 and she was in pain “24/7”.
23.In her supplementary statement dated 1 April 2021, the applicant said she did complain to Dr Nguyen about her neck and back hurting when she consulted him on 9 July 2009. Dr Nguyen reassured the applicant that he would investigate that later but for now would concentrate on her leg.
24.When the applicant returned to see Dr Nguyen to have the plaster removed from her leg, she again told him about the pain in her lower back. His response was that the pain was due to muscle strain and would eventually resolve without treatment. When Dr Nguyen referred the applicant for an x-ray of her neck she asked him about her back. Dr Nguyen’s response was, “it is most likely muscle damage, I will just investigate your neck.”
25.This went on for many months. Dr Nguyen kept ignoring the applicant’s complaints about her back and concentrated on the most affected body parts, her ankle and neck.
26.The applicant said:
“On 27 August 2012, I was having one of the regular consultations with my GP, when I again brought to his attention my ongoing issues with back pain. I told him, ‘Steve my back is really bad. Can you do something about it?’ Dr Nguyen's response was, "it's most likely because of you lifting your granddaughter.’ I replied, ‘no, my back has been bad ever since the fall and I do not lift my granddaughter.’ He again tried to brush my complaint aside, but I stood my ground. I was referred for an x-ray scan of my mid and lower back. I cannot recall what happened with the results of the scan. What I can remember is that after my lower back pain continued to deteriorate with the pain spreading down to my right buttock and into my right leg. I recognised this radicular-type of pain because I have been having suffering for many years from similar symptoms in my neck.”
27.Over the next few months, the applicant’s back and leg pain gradually deteriorated, radiating down to her right ankle. Dr Nguyen kept ignoring the applicant’s complaints.
28.At the beginning of 2014, the applicant was referred to Dr Sheridan. Dr Sheridan also initially focused on the applicant’s neck. The applicant’s back was finally investigated in February 2014. The applicant said Dr Sheridan was firmly of the view that the problems in the applicant’s back were long-standing and related to the fall in July 2009.
Treating medical evidence
29.Clinical records from Macarthur Square Medical and Dental Centre are in evidence. A clinical note recorded on 9 July 2009 stated:
“Return for r/v
walking to work
slipped on floor
landed on L side of body
R leg caught under L leg
did not hit head-on groundc/o pain to R leg from knee to R foot
pain constant
reluctant to wt bear
also neck pain
some discomfort on movns
for r/v
neck
good rom
tender over l4-5 limited rom due to pain
swelling over lateral malleolus
tender +++”
30.The applicant was referred for an x-ray of her foot. The applicant returned for review on 10 July and 14 July 2009. On 14 July 2009, the applicant was noted to have ongoing neck pain and wished to have physiotherapy.
31.On 12 August 2009, the applicant’s general practitioner, Dr Steve Nguyen, responded to a series of questions from the insurer. The applicant’s diagnosis was said to be a fractured right lateral malleolus and neck pain. The applicant was undergoing physiotherapy to her neck and had a pre-existing neck injury. The applicant had chronic neck pain since about April 2000 and neck pain had gotten worse since the accident.
32.On 14 August 2009, the applicant was reported to be mobilising with crutches. The applicant had three sessions to the neck but was slow to improve. The applicant was prescribed Mobic and Lyrica.
33.At a consultation 21 August 2009, it was noted:
“menopausal
3 ankle from minimal trauma
? osteoporosis
for DEXA scan”
34.A clinical note made on 31 August 2009 stated:
“return for r/v
had cast off last week
had assessment with physio
mobilising now
still not well enough to drive
aims to return to work on the 10/9/09also ongoing neck pain
request routine xr
referral given”
35.The applicant was given a referral for an x-ray of the “spine”. An investigation of the cervical spine was performed by Medical Imaging Campbelltown on 3 September 2009. At a consultation on 10 September 2009 it was noted, “neck ct nil acute changes”.
36.On 8 October 2009, a clinical note recorded:
“still ongoing neck pain
pain on R side
some pain and numbness in R arm
did not find physio helped
on tramal lyrica and mobic
nothing is helping
still pain in foot
tolerating pain
still coping with work
pt advised
need to start physio
for regular analgesia
for ct scan
r/v post test”
37.A CT scan of the cervical spine was performed on 12 October 2009.
38.On 16 October 2009, the applicant underwent a bone mineral density study of her lumbar spine, left forearm and her left and right femoral neck. The clinical data provided indicated that there was a past history of fracture and the referral was to assess bone density. The study concluded that the applicant had osteopenia.
39.At a consultation on 20 October 2009, it was recorded that the applicant had a CT scan which showed facet arthropathy. The applicant was reassured. The applicant had also undergone x-ray of her ankle and transfers fracture was still visualised. The applicant was prescribed a calcium supplement.
40.The applicant was noted to still have a sore and swollen leg and sore neck. The applicant was also seen for earache and sinusitis in late 2009.
41.The applicant was seen by Dr Nguyen at Park Central Family Practice on 4 December 2009. Dr Nguyen’s note of the consultation stated:
“w/c
tingling sensations in both hands
worse in am
asso with numbness
affect all fingers
also severe pain to neck and shoulders
on regular lyrica and nurofen
d/w insurer
now have appt with IME on 15/12/09
pt advised
to increase lyrica to 300mg nocte
for ncs
referral given
Reason for visit:
Worker's compensation NECK PAIN”
42.On 10 December 2009, Dr Nguyen recorded that the applicant still had ongoing neck pain as well as pain in her left foot. The applicant was advised to take breaks as much as possible and continue regular physiotherapy.
43.The applicant was seen by neurologist, Dr David Rail on 11 December 2009, taking a history as follows:
“Mrs Egan has returned after having a fall in June 2009, landing on her left shoulder. This resulted in a lot more pain and paraesthesia through the right arm.”
44.A physiotherapist, Sunjong Choi, prepared a report on 21 December 2009 in relation to the right ankle injury following a fall at work on 9 July 2009. It was noted that the applicant also had symptoms at her right knee. Ms Choi stated:
“I suspect that Mrs. Egan may have underlying persisted inflammation on lateral meniscus following twisting her knee when she had fall.”
45.The applicant continued to see Dr Nguyen on a frequent basis throughout 2010, 2011 and 2012. The applicant complained of a sore ankle and knee. The applicant also continued to complain of a sore neck and foot. The applicant was also seen in relation to other matters including solar keratoses, upper respiratory tract infections, urinary tract infection, dental issues, rashes and earache.
46.Dr Rail referred the applicant to neurosurgeon Dr Mark Sheridan on 20 January 2010. The letter of referral described the fall and a return of neck pain spreading to the arms.
47.Dr Sheridan saw the applicant again on 2 March 2010. On that occasion, Dr Sheridan took a history as follows:
“About 6 months ago she had a fall and exacerbated her neck pain and developed new right arm pain which she hasn't had previously. She has had paraesthesia and numbness extending into her fingers and she drops things. She ls currently managing the pain with some Lyrica. She has remained otherwise well.”
48.Dr Sheridan saw the applicant again on 12 May 2010, 28 June 2010 and 29 October 2010 without any reference to lower back pain being recorded in his reports.
49.On 23 November 2010, Dr Sheridan reported that the applicant had undergone an anterior cervical discectomy and fusion which went uneventfully. The applicant’s symptoms had settled rapidly and Dr Sheridan was pleased with the applicant’s progress.
50.Dr Sheridan reviewed the applicant on 19 January 2011 and again reported that the applicant was continuing to settle after her anterior cervical discectomy and fusion.
51.Dr Sheridan reported on 1 April 2011 that the applicant had a flareup of neck and shoulder pain. The applicant could not think of any cause for it. A repeat cervical MRI and bone scan was arranged.
52.On 1 December 2011, Dr Sheridan reported that the applicant’s neck pain and headaches were flaring up again. It was about five months since the last lot of injections and Dr Sheridan considered it would be worthwhile repeating these. On 27 February 2012, Dr Sheridan wrote that the applicant had undergone injections but her pain was persisting.
53.In a consultation with Dr Nguyen on 16 August 2012 it was noted that the applicant had undergone a routine bone mineral density scan. The applicant’s spine result was said to be looking good whilst her hip result showed further decline.
54.On 27 August 2012, Dr Nguyen recorded a clinical note as follows:
“also getting more upper and lower back pain
have been looking after grand daughter
doing more lifting
nil trauma
request xr to check spine
r/v post test”
55.Dr Nguyen’s notes indicate that a referral was made on the same date to South West Radiology for a plain x-ray of the lumbosacral spine and thoracic spine.
56.On 19 July 2013, Dr Nguyen noted:
“still nasal congstion
chesty cough
blocked ears
ok in the am
worse as the day progress
nil fever
also mechanical lower back pain
encourage heat massage and exercise”
57.On 16 August 2013, Dr Nguyen recorded a clinical note that stated:
“would like to start exercise program
still ongoing R leg pain
starts in ankle and radiates up leg
still able to walk”
58.On 15 January 2014, Dr Sheridan reported that it had been two years since he last saw the applicant:
“Her main concern at the moment is persisting neck pain and bilateral arm pain, paraesthesia, numbness and weakness. She feels it is worse recently. She also has lower back pain and bilateral leg pain. She has managed her pain with some simple analgesia, exercise and physiotherapy. She is looking after her grandchildren at the moment at home which is not helping. She has remained otherwise well. The MRI scan of her neck shows no change from the scan she had several years ago and there is some persisting lateral recess stenosis particularly at C3-4 and certainly nothing that needs intervention or anything else done. I have advised her to have a repeat lumbar MRI scan and I will review her after this is done.”
59.The applicant underwent an MRI of the lumbar spine at the request of Dr Sheridan on 27 February 2014. A history of “lower back pain” was provided. On 9 April 2014, Dr Sheridan reported that the applicant had undergone the MRI of the lower back:
“This shows she has nerve compression and spinal cord compression at T11-12 and also L4-5 and L5-S1 . At the moment her symptoms are reasonably stable and I do not think there is anything here that needs surgery. I think continuing a conservative approach to pain management and gentle self directed exercise is her best option. I have recommended she get a treadmill at home to do her own exercise. She finds pushing herself with the gym exacerbates things. I have recommended that she continue with the current analgesia and obviously remain careful of her back with the current restrictions.”
60.On 14 May 2014, Dr Nguyen noted that the applicant had been seen by Dr Sheridan who recommended conservative treatment of her neck and back.
61.On 17 July 2014, Dr Nguyen wrote a letter of referral to Dr Mark Sheridan, stating the following:
“She returns to see you for further review of her ongoing neck and lower back pain. She recently reported worsening of her back pain. This is associated with radicular symptoms in the R leg and urinary incontinence.”
62.A clinical note recorded by Dr Nguyen on the same date stated:
63.
“neck still sore
getting worse
also worsening of lower back pain
affecting the R leg
asso with incontinence and some weakness in the leg
s/b dr sheridan last few months had mri scan
? result
already on maximal medical therapy
may need surgery
to see dr sheridan again
referral given
appt in early august
to stay on lyrica
to try to increase tramadol to 100mg bd
r/v prn?”
64.On 24 July 2014, Dr Nguyen noted:
“still ongoing back pain
taking tramadool 50 mg 2 bd
some releif
still not sleeping at night
for trial of 150mg sr bd
due to see dr sheridan on 8/8/14
still waiting for approval
…
pt to dw dr sheriudan and case manager re ongoing lower back pain
had mri scan
degenerative changes and ner impingment
pt think that it is under w/c
advised that it does not appear to be any formal paper works to state that lower back poain is related to a work injury
pt to sort things out with insurer and dr sheridan”
65.On 12 August 2014, reported to Dr Nguyen:
“Since I last saw her, her back pain and right leg pain has been bothering her more. She is managing it with Tramal and she Is also getting increasing pain and headaches. Her last MRI scan of her lower back showed an L4-5 spondylolisthesis with some nerve compression. I have organized for her to have a CT guided transforaminal steroid injection there lo see if we can settle her leg pain down. I have also organized for her to have a bone scan of her neck and lower back to see if there are any other areas that would benefit from some steroid injections.”
66.On 25 August 2014, Dr Sheridan completed a medical attendant’s statement as part of an income protection claim form. Dr Sheridan described an injury in the nature of a cervical fracture with neck and arm pain on 9 July 2009. In response to a question asking for details of subsequent consultations, Dr Sheridan said, “Multiple over the past 14 years now neck + back pain.” The applicant’s “current symptoms” were neck and arm pain and low back and leg pain.
67.On 13 October 2014 the applicant underwent a bone scan at the request of Dr Sheridan. The reason for the study was identified as “lower back pain radiating into the right leg.” The report identified:
“There is active inflammatory facet joint arthritis in the right cervical spine, probably at C2/3 and facet joint arthritis at L5/S1 bilaterally. The appearance is not significantly changed from that reported on the previous bone scan of 30/4/2014. Mild arthritic changes elsewhere as noted above.”
68.On 12 May 2015, Dr Sheridan reported that the applicant had recently undergone injections:
“These gave her some good temporary relief of pain with no lasting benefit. I have now referred her to Dr Bazina one of my pain management colleagues for consideration of radiofrequency block. She will need to have diagnostic blocks first and then go onto radiofrequency dorsal branch ablation if appropriate. I will leave things in Dr Bazina hands.”
69.Neurosurgeon Dr Renata Bazina saw the applicant on 3 July 2015. In a report to Dr Sheridan on 8 July 2015, Dr Bazina took a history as follows:
“You performed a cervical fusion / vertebrectomy and she did very well returning to work until a fall in 2009 at Macarthur Shopping Centre during her work. At that time Mrs Egan sustained a fractured right ankle and had a flair up of her neck with new onset of back symptoms.”
70.A CT scan of the lumbar spine was performed at the request of Dr Bazina on 31 July 2015.
71.A whole-body bone scan together with a dynamic study of the lumbar spine and SPECT studies of the cervical and lumbar spine were performed on 19 December 2016. At the lumbar spine there was moderately to greatly active arthritic change involving the spinous processes of L3/4 and L4/5 and lower thoracic vertebral bodies.
72.On 3 July 2017, the applicant underwent a further MRI of the lumbar spine. A history of an acute exacerbation and chronic lower back pain was given. The MRI was reported to show bilateral L5 nerve root contact and severe degenerative facet joint disease at L4/5 and L5/S1.
73.On 25 August 2017, Dr Sheridan prepared a report in relation to the applicant’s ongoing cervical symptoms and stated:
“Her other issue is lower back pain and leg pain which is getting worse. She has an MRI scan of her lower back which shows an L4-5 spondylolisthesis with nerve compression, although It is worse on the right, consistent with her back and leg pain. She may well need to go onto an L4-5 lumbar laminectomy and fusion and we discussed this at quite some length today.”
74.Rehabilitation Medicine Specialist, Dr Mekala Thayalan prepared a report for Dr Nguyen on 14 November 2017. Dr Thayalan took a history of the injury on 9 July 2009 as follows:
“Mrs Egan presented with a history of chronic low back pain, cervical spine pain and cervical headaches along with right knee pain. She had an injury to her low back, right ankle following a fall at Macarthur Square on her way to work on 9th July 2009. She was taken to her local medical officers' rooms in a wheelchair at Macarthur Square. She had an imaging done and her right ankle fracture was managed conservatively with plaster for six weeks and was treated with pain medications. She had physiotherapy once her weight bearing status was normal. Since she had C3/4 fusion done in 1999 following a fall at home for fracture of cervical spine, she was seen by the same neurosurgeon (Prof Mark Sheridan) and was advised to have the second surgery C4/5, C6/7 fusion in 2010. Six months later she recommenced work as a sales assistant for eighteen months and was made redundant. Mrs Egan continued to have physiotherapy for her right foot injury. Her low back pain became worse and was referred to Dr Bazina and bad lumbar radio frequency neurotomy in July 2015. Since she continued to have low back pain, she had right L2/L3, L4/LS medial branch radio frequency in January 2017. She has had neurosurgical review following the procedures and was advised for facet joint blocks followed by left facet joint radio frequency”
75.On 31 October 2018, Dr Sheridan reported that the applicant’s lower back pain and right leg pain was gradually getting worse and she was having increasing trouble walking.
76.A further bone scan of the cervical and lumbar spine was performed on 23 November 2018.
77.On 14 August 2019, Dr Sheridan reported:
“Her main concern now is increasing lower back pain and bilateral leg pain worse on the right. It is increasingly restricting her mobility and her ability to do normal day to day activities. As you know she has an L4-5 degenerative spondylolisthesis with some stenosis at L3-4 as well. At this stage she is a candidate for an L3-5 lumbar laminectomy and L4-5 fusion. The risks and expected outcome of this were discussed at quite some length today. She is going to go away and have a think about her options. I have organized a fresh MRI scan as it is coming to a year since her last imaging and l will review her after this is done.”
78.A further MRI was undertaken on 20 August 2019. The applicant was said to have severe facet joint degeneration and associated grade 1 anterolisthesis at L4/5 and L5/1. There was severe spinal canal stenosis at L4/5 with possible attenuation of the cauda equina.
79.On 5 November 2019, Dr Sheridan reviewed the applicant and reported:
“I think at this stage given her failure of conservative treatment and her increasing pain and disability particularly her leg symptoms, she is a candidate for an L2-S1 laminectomy and L4-5 fusion. The risks and expected outcome of this were discussed at some length today. She is aware that this operation may not work. She is aware it may make her worse. She is aware it has a risk of complications up to but not limited to paraplegia or death. There is a risk of anaesthetic and infective complications. She will be left with some persisting back pain which could still be disabling for her. She could still require further operations in the future. In spite of all this she is keen to proceed.”
80.Dr Sheridan related the need for surgery to the applicant’s work injury stating:
“It is my opinion her requirement for surgery is entirely as a result of her work injury. She has no pre-existing or pre-disposing health problems. I think the surgery is the reasonable and necessary next step and she has tried all reasonable alternative treatments at this stage.”
81.Dr Sheridan sought approval for the applicant to undergo the surgery at the gazetted rates.
82.On 23 April 2020 Dr Sheridan prepared a report for Dr Nguyen in which he noted that the request for approval had been declined:
“I believe the IME report suggests that she has a pre-existing illness rather than as a result of her Injury. I of course disagree with this. I believe she is appealing through WIRO and I also suggested she see a solicitor. Her requirement for surgery remains a result of her work injuries.”
Previous proceedings
83.The applicant signed a written statement prepared by an investigator on 13 October 2009. The applicant described the fall on 9 July 2009:
“I was walking almost passing Lincraft and near Hot Dollar. I was carrying my handbag and had my keys in my hand, as I was walking, I felt my right shoe slip it crossed over my left foot and made me trip. I was falling forward towards the Hot dollar display cages and twisted away to the left trying to avoid the cages. I landed on my left shoulder, my torso twisted and thudded to the ground, I felt like I had been tackled. My right ankle was somehow in strange position under my left leg.”
84.The applicant described her symptoms following the fall:
“The initial incident has affected my right foot and ankle. I have had pains in my shoulders and neck, it has impacted on my previous injury. I have been suffering headaches and migraines more regularly than previously.
I suffered symptoms in the days that followed the incident I noticed on approximately day 3 after the incident that symptoms such as the headaches first occurred. These symptoms are settling back down now. I am still getting pain in the right hand side of my neck, shoulder and arm.”
85.The insurer qualified neurosurgeon Dr John MF Grant to prepare a medicolegal report, dated 18 August 2010. The applicant was reported to give a history of the fall as follows:
“Today she gave a history of having in July of last year slipped and in attempting to stop herself falling she actually did fall on to her. left shoulder, her head was twisted backwards and she also apparently in this episode fractured her right ankle.
She was reviewed by her medical centre and x-rays were taken, and then the ankle injury was treated by plaster. Following this episode she initially complained of severe headache which persisted for some two days and she also complained of pain in her neck particularly on the right side with discomfort and pain in her right upper extremity and paraesthesia extending as far as her hand to involve the whole of the hand.
She also continued to suffer from left upper extremity difficulties which have followed her previous problem for which she underwent an anterior cervical fusion at the C4/S level some ten years ago.”
86.The applicant’s former solicitors qualified orthopaedic surgeon Dr James G Bodel to prepare a medicolegal report, dated 22 May 2012. Dr Bodel described the fall on 9 July 2009 and said:
“This lady suffered an Injury to the neck, both shoulders end the right foot and ankle as a consequence of the injury on 09 July 2009.”
87.Dr Bodel assessed the applicant as having 25% whole person impairment of her cervical spine and right lower extremity as a result of the injury on 9 July 2009.
88.Dr Grant prepared a further report on 12 December 2012. The applicant continued to complain of neck pain and headache although there was some possible improvement in her right upper extremity paraesthesia. Dr Grant assessed the applicant as having 28% whole person impairment.
89.Orthopaedic surgeon, Dr James Powell prepared a report for the insurer on 1 February 2013. Dr Powell took a history as follows:
“On 9 July 2009, Ms Egan was coming into her workplace when she slipped on some water on the floor. Her right foot slipped forward and she was about to pitch into structures within the shop, which she tried to avoid, landing on her left shoulder and with her right foot underneath her.
At the time, she had pain about the neck and about the right ankle.”
90.On 3 September 2013, the applicant signed a complying agreement pursuant to s 66A of the 1987 Act. The applicant was paid $17,500 in lump sum compensation pursuant to s 66 of the 1987 Act in respect of 25% whole person impairment of her cervical spine and right lower extremity in accordance with the assessment of Dr Bodel.
91.Dr Powell prepared a supplementary report for the insurer on 18 September 2014. On that occasion he was given a history of the applicant’s symptoms following the fall as follows:
“At the time she had pain about the right ankle, about the neck and at the low back, and was also aware of pain about the right knee.”
92.Following examination and review of the materials, Dr Powell stated:
“In previous assessments Ms Egan had made no mention of the lumbar spine, although today she indicates that she has had symptoms in this region since the fall. This is most difficult to substantiate. She indicated that doctors had not been listening to her and there were no Investigations undertaken over the time period. Her current investigations indicate multilevel degenerative disease throughout the thoracic and lumbar spine which is of longstanding and unrelated to the incident she describes.
No mention was made of back symptoms at a prior assessment by myself. (I let patients describe their symptoms rather than lead them, and Ms Egan made no mention of her back causing difficulties arising from the incident, subsequently nor previously.) The degenerative disease in the thoracolumbar spine Is of longstanding, of many years duration, and Is unlikely to be related to any trauma event.
Ms Egan indicated that Dr Sheridan and found fractures in the lumbar spine associated with her work incident, although I was not able to find any mention of this to support her claim In Dr Sheridan's correspondence, and it Is difficult to imagine that fractures could have been overlooked on the various assessments and examinations undertaken in various places at the time of her presentation.”
93.Dr Powell was asked whether the applicant injured her lumbar spine in the fall on 9 July 2009 and responded:
“As outlined above, it is difficult to associate Ms Egan's lumbar spine symptoms with the incident described. Ms Egan has been seen by a number of practitioners over time, including those involved in her acute assessment, ongoing medical management and a number for the purposes of assessment, and no mention was made with respect of injury to the lumbar spine.
Lumbar pathology is common and increasingly common with advancing age with a wide variety of symptomatic presentations with or without association of specific events, and it is often difficult in retrospect to sort out where symptoms may have arisen.
It is unusual for patients involved in some form of trauma particularly associated with work not to have assessments and investigations made in view of the legal nature of these types of complaints, and there is a tendency to over-investigate rather than under. It is always difficult when patients make claims that they were not listened to. It is, however, difficult to hide significant pathology should it exist and once again, medical practitioners assisting these patients will tend to attempt to bring out any obvious associated conditions if they notice the patient in distress. While it is not uncommon for one component of a disorder to predominate in presentation where there are multiple areas involved, it is difficult to appreciate that no record was made, nor even baseline investigations undertaken if the patient had made some form of complaint or their physical presentation suggested that there were other areas that might warrant investigation.
Ms Egan's current investigations indicate widespread disease from the thoracic to the lumbar region and she is known to have cervical discal pathology that had been symptomatic for many years prior to this incident, and this would indicate that she has had a longstanding spinal disorder for many years, likely to have predated the incident, given their current development.
Changes seen on her scan are unlikely to be from localised trauma. It is difficult to support Ms Egan's assertion that injury occurred at the time of incident It is unlikely that the mechanism described by Ms Egan, which has been consistent, would have resulted in significant injury to the spine that would have been overlooked, and also it is unlikely through this mechanism that significant injury to the lumbar spine could have occurred.”
Dr Endrey-Walder
94.In these proceedings, the applicant relies on a medicolegal report prepared by general and trauma surgeon, Dr P Endrey-Walder, dated 19 October 2020.
95.Dr Endrey-Walder took a history of the applicant falling and landing heavily on 9 July 2009, hurting her lower back. The applicant continued to complain of significant lower back pain radiating to her lower limbs.
96.Dr Endrey-Walder reviewed the treating medical evidence and radiological investigations, performed an examination and gave the opinion:
“Ms. Egan suffered an injury to her lower back, aggravation of previous cervical spine pathology and fracture at the right ankle in the accident described.”
97.Dr Endrey-Walder said it appeared the aggravation of the applicant’s neck condition had taken primacy in the post accident period. Dr Endrey-Walder noted the fact that within about 15 months of the fall the applicant needed further extensive surgery by way of discectomy and anterior fusion between C5 and C7. With regard to the lumbar spine, Dr Endrey-Walder said:
“It was in early 2014 that she had first complained to Dr. Sheridan of the lower back pain since the fall, but I note that clinical notes by Dr. Nguyen (27.8.2012) and then again on 16.8.2013 refer to your client's lower back pain with radiation into the right lower limb.”
98.Dr Endrey-Walder noted that the respondent’s expert, Dr Stenning, agreed with the proposed surgery, not on account of injury suffered in the fall but on account of the natural progression of underlying degenerative changes. Dr Endrey-Walder commented:
“I had noted Dr. Sheridan's disagreement with this assessment, and I agree with him because this lady had no lower back symptoms of consequence prior to the fall, and if she had such severe facet joint pathology in the lower lumbar spine as has been reported from about 2015 onwards, she would not have been able to work as a Sales Assistant.
I do believe that Dr. Sheridan's recommendation for the multi-level surgery as a consequence of injuries/aggravation of your client's lower back is well justified.”
Dr Stenning
99.The respondent relies on a medicolegal report prepared by neurosurgeon, Dr Warwick Stenning, dated 10 February 2020.
100.Dr Stenning took a history of the applicant hurting her back in the fall on 9 July 2009. The applicant said her low back pain had become more painful over the years.
101.Dr Stenning noted the historical medicolegal reports prepared by Dr Grant in August 2010 and December 2012, noting there was no mention of lumbar spine symptoms or pathology.
102.Dr Stenning referred to the report of Dr James Powell on 18 September 2014:
“There was multilevel spondylotic change in the lumbar spine, which the claimant claimed dated from her incident (not dated but presumably the 2009 incident). He went on to say that the complaints of the lumbar spine had not been made at prior assessments, and that the claimant stated that doctors had not been listening to her. He felt that the spondylotic changes in the thoracic and lumbar spines were not related to the incident she described. He made the point that he had examined the claimant before, and she had made no mention of her lumbar spine problems.”
103.After clinical examination and reviewing a range of other documents, Dr Stenning made a diagnosis as follows:
“Ms Egan has degenerative changes throughout the lumbar spine, most marked at L4/5. At L4/5 there is severe degenerative change in the facet joints, leading to a degenerative spondylolisthesis of L4 on L5. This is associated with a disc bulge and marked ligamentum flavum hypertrophy. From the reports made available, this was well advanced at the time of the 2009 injury. This has led to the development of severe lumbar canal stenosis. The degenerative changes throughout the lumbar spine have led to the ongoing back pain.”
104.Commenting further on the relationship between the applicant’s current symptoms and the 2009 fall, Dr Stenning said:
“There is evidence in the documentation that the claimant did not complain of her low back pain until sometime after the 2009 injury. In particular, the reports by Dr James Powell, some four years after the 2009 injury, made a point of stating that the claimant had not mentioned the low back pain to him at his first interview. The low back pain, also, is not mentioned in Dr J M F Grant's reports of August 2010 and December 2012. At most, the fall in 2009 could have aggravated the pre-existing severe degenerative change in the lumbar spine, particularly at L4/5, causing an increase in leg symptoms. However, this aggravation, if it in fact, did occur, had resolved by the time she was interviewed by Dr Grant.”
105.Dr Stenning agreed that the surgery proposed by Dr Sheridan was reasonably necessary but said it did not result from the work injury:
“My recommended treatment would be an L3 to S1 decompressive laminectomy with an L4/5 lumbar fusion. There is an argument for including the L2 level in the decompression. However, I do not believe that this treatment Is necessary because of the work-related incident. but rather as a result of the natural progression of the underlying degenerative changes. In summary, I do not believe that her current back symptoms are work related.”
Applicant’s submissions
106.Mr Hickey described the primary issue in dispute as whether the applicant had sustained injury to her lumbar spine on 9 July 2009. Mr Hickey observed that the applicant’s first statement set out a history of what occurred since that date. The applicant described fracturing her right ankle and aggravating a pre-existing condition in her neck. The applicant also said she suffered pain in her lower back.
107.Mr Hickey noted that a clinical note recorded by the applicant’s general practitioner on the day of the fall referred to the applicant being tender over L4/5 and having limited range of movement due to pain.
108.Mr Hickey conceded that there was an absence of recording of complaints of lumbar spine symptoms for a period of time after 9 July 2009.
109.Mr Hickey referred to the opinion given by the respondent’s expert, Dr Stenning that it would appear that the applicant had low back degenerative symptoms predating the fall in 2009. Dr Stenning conceded that was possible that there was a minor aggravation caused by the fall. Dr Stenning considered that any aggravation would have ceased by the time the applicant was examined by Dr Grant in 2010.
110.Mr Hickey conceded that Dr Grant did not mention lumbar symptoms or pathology in his reports in 2010 or 2012 but submitted that he was not examining the applicant for a lumbar spine injury. Mr Hickey described Dr Stenning’s comments as a bridge too far given that Dr Grant was only asked to answer questions in relation to the applicant’s neck injury. Similarly, Dr Powell was not initially asked to investigate the applicant’s lumbar spine.
111.According to the applicant’s statement, her lumbar symptoms were not investigated because her ankle was causing the greatest pain initially. In her supplementary statement, the applicant said she had told her general practitioner Dr Nguyen of lumbar spine symptoms but he said he would investigate them later, concentrating initially on the applicant’s leg. According to the applicant’s evidence, Dr Nguyen thought any lumbar injury was most likely muscular. This approach was said to be understandable given the prior history in relation to the applicant’s neck and the significant issues with her right ankle.
112.Mr Hickey noted the referral for a plain x-ray of the lumbar spine on 27 August 2012. The clinical record of the same date referred to the applicant getting more upper and lower back pain after looking after her granddaughter and doing more lifting.
113.Although Dr Nguyen’s notes did not reflect this, the applicant’s account was that she always had lumbar pain after the fall. Although Dr Stenning said the pathology in the applicant’s lumbar spine was well advanced at the time of the 2009 injury, Mr Hickey noted that there was nothing in the evidence to indicate any investigations of the lumbar spine prior to July 2009. Mr Hickey also submitted that Dr Stenning’s history was incorrect insofar as he said that the applicant did not complain of lower back pain until sometime after the 2009 injury. The clinical records showed a complaint of pain and restriction in the lumbar spine on the day of the fall.
114.Mr Hickey submitted that Dr Stenning accepted that the surgery proposed by Dr Sheridan was reasonably necessary treatment but disputed causation. In giving his opinion, Mr Hickey submitted that Dr Stenning relied on recent scans rather than scans taken at the time of the injury. The fact that lumbar symptoms were not reported to Dr Grant and Dr Powell was said to be insignificant.
115.In contrast, Dr Endrey-Walder took a history of the applicant continuing to complain of lower back pain from the time of the fall.
116.Mr Hickey noted that Dr Sheridan was the first specialist to see the applicant in 2014. The applicant was also seen by Dr Bazina and Dr Thalayan. Dr Sheridan had given an opinion that the need for surgery resulted from the applicant’s work injury. Dr Endrey-Walder supported the opinion given by Dr Sheridan.
117.Mr Hickey noted that Dr Sheridan first saw the applicant in relation to lower back pain and bilateral leg pain on 15 January 2014. Mr Hickey referred me to the series of reports from Dr Sheridan regarding treatment of the applicant’s lumbar spine including, injections which proved of no lasting benefit. The applicant was referred to Dr Bazina. Mr Hickey noted that the investigations of the lumbar spine were consistent with referred leg pain particularly on the right.
118.Mr Hickey submitted that the Commission would accept that the applicant had aggravated pathology in her back or that the fall caused heightened symptomatology. There was a recorded complaint of pain at the lumbar spine on the day of the fall. The applicant’s evidence was that she continued to complain constantly about pain in her lower back. Over time, the pathological condition had progressed. Both Dr Sheridan and Dr Endrey-Walder accepted that the present need for surgery was due to the fall on 9 July 2009. The investigations showed pathology consistent with reported right leg pain. Mr Hickey submitted that the evidence had a ring of consistency about it.
119.Mr Hickey submitted that Dr Stenning did not consider these factors in forming his opinion and significantly relied upon the absence of complaint to Dr Powell and Dr Grant. The applicant was, however, seen by those doctors for a different condition.
120.Referring to the decision in Cant v Catholic Schools Office[1], Mr Hickey submitted that after the fall there was an ongoing heightened set of symptoms in the applicant’s lower spine. The fall made a material contribution to the need for surgery. Mr Hickey submitted that the Commission would accept the opinions of Drs Sheridan and Endrey-Walder.
[1] [2000] NSWCC 37.
121.To the extent that the need for surgery remained in issue, Mr Hickey noted that the evidence revealed that the applicant had undergone significant conservative treatment including multiple injections and physiotherapy over a number of years.
Respondent’s submissions
122.Ms Compton submitted that it was unclear whether the applicant claimed an injury falling within s 4(a) or s 4(b) of the 1987 Act. Ms Compton submitted that the applicant needed to persuade the Commission first that she sustained an injury in the fall and second that the fall in 2009 caused the need for surgery in 2021.
123.Ms Compton submitted that Dr Sheridan had proposed surgery from L2 to S1, that is, the majority of the lumbar spine. The Commission would have to be satisfied that the initial injury, if there was one caused the need for this surgery.
124.Ms Compton noted that the applicant did initially report leg symptoms but this could be explained by the fracture of the malleolus. in 2014, Dr Sheridan took a record of the applicant experiencing bilateral leg pain. The applicant was noted to be looking after her grandchildren at the time. The bilateral leg pain was a new symptom representing new pathology or injury, discovered or reported in 2014.
125.Ms Compton submitted that there was no corroborative evidence that the applicant constantly reported pain and other problems in her lumbar spine from the time of the fall. There was no report from the applicant’s general practitioner, Dr Nguyen, to support the applicant’s evidence. In the circumstances, where detailed records from 2009 to 2020 from the applicant’s general practitioner were in evidence, Ms Compton submitted that the Commission would not accept the applicant’s written evidence.
126.Dr Nguyen’s clinical records showed multiple complaints in relation to many different symptoms. Dr Nguyen was the general practitioner consulted by the applicant in relation to all of her medical complaints and had prepared detailed clinical records. With the exception of the very first contemporaneous report of tenderness over L4/5 and limited range of movement on 9 July 2009, there was no further comment or reference to the lumbar spine until 2012 despite multiple consultations. In particular, there was no reference to bilateral leg symptoms. Ms Compton submitted that the Commission would not accept that the symptoms, if complained of, would not be recorded.
127.Ms Compton described the high point of the applicant’s case as the evidence of Dr Endrey-Walder. Dr Endrey-Walder described an injury to the applicant’s lower back. Dr Endrey-Walder did not say whether employment was the main contributing factor or a substantial contributing factor to the injury. Dr Endrey-Walder did not say what the injury was or how it was caused by the fall. The applicant’s medical evidence did not explain whether there was an aggravation of underlying degenerative condition. The Commission would not accept that any injury sustained in the fall in July 2009 was so significant as to now require surgery from L2 to S1.
128.Ms Compton submitted that Dr Sheridan did not address the legal tests for causation either. Dr Sheridan expressed disagreement with the insurer’s Independent Medical Examiner’s report but did not explain the basis for his disagreement.
129.In considering whether the applicant’s version of events should be accepted, Ms Compton referred to the contemporaneous written statement taken by an investigator in 2009. In that statement, the applicant did not refer to any pain in her lumbar spine. The applicant did not refer to any treatment or consultations with her doctor in regard to the lumbar spine. Ms Compton submitted that the applicant’s retrospective account of what occurred in July 2009 was not as reliable as her more contemporaneous recollections.
130.Ms Compton noted that lumbar symptoms were not initially referred to Dr Sheridan. Dr Sheridan was only asked to consider the cervical spine.
131.Ms Compton noted that the applicant was referred for a bone scan which included the lumbar spine relatively soon after the fall. Ms Compton submitted that the medical evidence suggested that this was because the applicant had been diagnosed with osteopenia.
132.Ms Compton noted Dr Endrey-Walder’s reasoning that if the applicant had the severe facet joint pathology now shown in the lumbar spine prior to the fall that the applicant would not have been able to engage in her employment with the respondent as a sales assistant. Ms Compton noted that Dr Endrey-Walder did not explain why, if this pathology resulted from the fall, the applicant only reported such symptoms many years after the fall. The applicant continued to work until 2012. Ms Compton said there may have been other intervening factors.
133.Ms Compton noted that Dr Sheridan’s response in the income protection claim form in August 2014 indicated that the applicant had neck and arm pain following the injury. Ms Compton submitted that the symptoms investigated by Dr Sheridan after 2014 represented a new condition which was different to any injury in 2009.
134.Ms Compton noted the opinion of Dr Stenning that the applicant had degenerative changes throughout her lumbar spine. At most, the fall in 2009 could have aggravated the pre-existing degenerative changes. Ms Compton submitted that it was leg symptoms which were now causing the need for surgery. Ms Compton submitted that if the applicant had radicular leg pain from the time of the fall, this type of symptom would have been recorded in the medical evidence.
135.Ms Compton noted that the applicant was assessed by Dr Bodel on behalf of her previous solicitors connection with a claim for lump sum compensation for the 2009 injury. Ms Compton noted that Dr Bodel was not asked to assess the lumbar spine in the context of the lump sum claim. Dr Bodel’s examination showed a good range of lateral bending and rotation of the thoracic spine and no impairment of straight leg raising. There was no neurological abnormality in the lower limbs. Any reference to the right leg could be explained by the fracture to the applicant’s right foot. Ms Compton submitted that Dr Bodel’s report was a contemporaneous account of the applicant’s complaints at the time of his examination.
136.Ms Compton also referred to Dr Powell’s 2013 report in which it was noted that the applicant had continued to work. Ms Compton said this was inconsistent with the applicant experiencing radicular pain resulting from the lumbar spine injury. In his supplementary report, Dr Powell noted that in previous assessments the applicant had made no mention of the lumbar spine. Ms Compton noted the detailed explanation provided by Dr Powell for his opinion that the applicant did not sustain an injury to the lumbar spine in the 2009 fall. Ms Compton submitted that Dr Powell provided the best and most cogent reasoning as to why employment was not the main contributing factor to the degenerative disease in the applicant’s lumbar spine or any aggravation of that disease.
137.A similar opinion was articulated by Dr Stenning.
138.Ms Compton submitted that the chain of causation was broken. A progression of the underlying condition had occurred. Ms Compton noted that the evidence identified at least two other incidents that could potentially account for the increase in symptoms including a second fall at Macquarie Square shopping centre in which the applicant fractured her left metatarsal. The general practitioner’s notes also indicated that the applicant experienced an increase of symptoms whilst looking after her granddaughter. Although the applicant was referred for x-rays in 2012, there was no evidence of those x-rays actually being performed.
139.In July 2013, the clinical records noted mechanical back pain but no relationship to the work injury.
140.Ms Compton submitted that there was no medical evidence to say that the fall in 2009 was the main contributing factor to an aggravation of the degenerative disease in the applicant’s lumbar spine. Ms Compton submitted that the Commission would not be persuaded on the evidence that there was any causal relationship between the applicant’s current lumbar condition and the fall in 2009. Ms Compton noted that this was consistent with the clinical record made by Dr Nguyen that although the applicant considered her ongoing lower back pain was related to the work injury, there did not appear to be any paperwork consistent with a work injury to the lumbar spine.
Applicant’s submissions in reply
141.Mr Hickey submitted that the opinion given by Dr Stenning that the applicant had pre-existing pathology of some significance was a hypothesis only. The opinion that there was a temporary aggravation was not supported by any medical evidence. In the event that there was some aggravation of an underlying condition caused by the fall, the evidence of the applicant was that those symptoms continued.
142.Mr Hickey referred to the decision in Federal Broom Co Pty Ltd v Semlitch[2] and noted that the Commission need only be satisfied that employment was the main contributing factor to an aggravation of the disease. The work injury need only be a material contributing factor to the need for surgery. Dr Sheridan went even further in stating that the need for surgery was “entirely” due to the work injury. Whether or not the injury was one falling within s 4(a) or s 4(b), Mr Hickey noted that a different test applied in considering whether the need for surgery had resulted from the work injury. Mr Hickey referred to the decision in Murphy v Allity Management Services Pty Ltd[3] and submitted that there may be more than one contributing factor to the need for surgery.
[2] [1964] HCA 34.
[3] [2015] NSWWCCPD 49.
FINDINGS AND REASONS
143.Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act.
144.Section 60 of the 1987 Act relevantly provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
145.It is the applicant who bears the onus of establishing on the balance of probabilities that she has sustained an injury to her lumbar spine for the purposes of s 4. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[4] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[4] [2008] NSWCA 246.
146.The primary difficulty for the applicant in discharging her onus is the lack of contemporaneous evidence of a lumbar spine injury in the fall on 9 July 2009. Apart from the reference to tenderness and a restricted range of movement over L4/5 in the general practitioner’s notes on the day of the fall, there is a complete lack of further reference to the lumbar spine in the factual and medical evidence until upper and lower back pain in the context of looking after her granddaughter was mentioned to Dr Nguyen on 27 August 2012.
147.Several explanations for the lack of contemporaneous evidence of the lumbar spine injury have been provided. It has been suggested that the applicant’s general practitioner, Dr Nguyen initially focused on the serious injuries to the applicant’s right ankle and cervical spine. The applicant has also suggested that despite multiple complaints to Dr Nguyen of lumbar spine symptoms, he declined to investigate the symptoms further.
148.After careful analysis of the medical and factual evidence, I am not persuaded that the applicant’s claims in this regard should be accepted.
149.There are, in evidence before me detailed clinical records from the applicant’s general practitioners. Those records reveal ongoing complaints of symptoms in the cervical spine and right ankle/foot related to the 2009 fall. Those symptoms appear to have been appropriately investigated by Dr Nguyen and referred to specialists including Dr Rail, Dr Sheridan and physiotherapist, Ms Choi.
150.The applicant consulted Dr Nguyen for a range of other symptoms unrelated to the work injury including upper respiratory symptoms, urinary tract infection, dental issues, rashes and earache. Apart from the single reference to lumbar symptoms on 9 July 2009, there is no further reference to lumbar symptoms until 27 August 2012 in Dr Nguyen’s clinical notes. Having regard to the frequency with which Dr Nguyen was consulted and content of the notes recorded by him, it seems improbable that had the applicant repeatedly described symptoms at her lumbar spine, they would not have been noted or investigated.
151.The first reference to lumbar symptoms after 9 July 2009 in Dr Nguyen’s notes does not relate the symptoms to the work injury. Rather, the applicant is recorded to have described upper and lower back pain in the context of looking after her granddaughter and doing more lifting. Importantly, the clinical record of that date refers to there being “nil trauma”. In the same consultation, Dr Nguyen made a referral for x-ray of the lumbosacral and thoracic spine, although there is no evidence that the referral was acted upon.
152.The applicant has addressed the notes of this consultation in her written statement dated 16 November 2020. The applicant’s statement suggests that she recalled the particular language used in her interaction with Dr Nguyen by the use of quotes. Given that the consultation had occurred more than eight years earlier in the context of numerous consultations with Dr Nguyen over the years, the applicant’s apparent ability to quote the conversation is unusual. The applicant said it was Dr Nguyen who suggested the backache was due to lifting her granddaughter. The applicant alleged that she specifically denied this and told Dr Nguyen that her back had been bad ever since the fall.
153.The applicant’s account of this consultation is not reflected in Dr Nguyen’s clinical record. It is also significant that Dr Sheridan mentioned the applicant looking after her grandchildren when he eventually saw the applicant on 15 January 2014 in relation to her lumbar symptoms.
154.Almost a year later, Dr Nguyen’s notes referred to mechanical lower back pain again on 19 July 2013. Nothing in the record of that consultation suggests that the back pain was related to the work injury. The applicant also appears to have discussed nasal congestion, a chesty cough and blocked ears in the same consultation.
155.Back pain and right leg pain were also mentioned in the clinical record of a consultation with Dr Nguyen on 16 August 2013. Once again, however, the clinical note made no reference to those symptoms being related to the 2009 fall.
156.The applicant’s allegation that she repeatedly told Dr Nguyen about back pain related to the 2009 fall is difficult to reconcile with the clinical record made on 24 July 2014 in which Dr Nguyen recorded for the first time that the applicant believed her back symptoms to be related to the work injury. Dr Nguyen recorded on that occasion that he advised that there did not appear to be any paperwork to state that the lower back pain was related to a work injury.
157.Although it has been suggested that the referral for a bone mineral density study in October 2009 which investigated the lumbar spine was evidence of Dr Nguyen investigating the lumbar symptoms, the clinical notes make clear that the applicant was referred for regular bone mineral density studies in the context of a past history of fractures with minimal trauma and a diagnosis of osteopenia.
158.It is not just Dr Nguyen’s clinical records which fail to corroborate the applicant’s allegation of ongoing lumbar symptoms from the time of the fall.
159.The written statement prepared by an investigator for the insurer and signed by the applicant on 13 October 2009 omitted any reference to lumbar symptoms. The statement did refer to symptoms in the applicant’s right foot and ankle, shoulders and neck. It also made reference to headaches and migraines being suffered following the injury. The applicant has not explained why she failed to mention lumbar symptoms in this, most contemporaneous written statement.
160.The applicant was seen by Dr Rail and later by Dr Sheridan on a regular basis after the injury in relation to her cervical symptoms. There is no reference in any of those reports to the applicant experiencing lumbar symptoms. The applicant has not alleged that she told Dr Sheridan of any lumbar symptoms during this period, nor has she explained why this was the case.
161.The applicant has suggested that she mentioned lumbar symptoms to her physiotherapist and referred to a letter dated “21 February 2009”, being a date prior to the fall. There is a letter from the applicant’s physiotherapist dated 21 December 2009 in evidence. In that letter, Ms Choi expressed the opinion that symptoms at the applicant’s right knee were related to the fall as a result of twisting the knee. Contrary to the applicant’s written statement, however, this letter makes no mention of lumbar symptoms.
162.The applicant also made a claim for lump sum compensation for permanent impairment resulting from the work injury with the assistance of her former solicitors in 2012. The applicant’s former solicitors qualified Dr Bodel to prepare a medicolegal report in which he made an assessment of whole person impairment. Nothing in that report, including Dr Bodel’s examination, suggests any symptoms in the lumbar spine, let alone symptoms related to the fall. The orthopaedic surgeon qualified by the insurer in relation to the claim, Dr Powell, observed that in patients involved in trauma associated with work there is a tendency to over investigate rather than under investigate. The applicant has not explained why she failed to mention any lumbar symptoms to her solicitors or Dr Bodel in the context of her claim for lump sum compensation.
163.No lumbar symptoms were mentioned in the reports of Dr Grant or Dr Powell in 2010, 2012 and 2013. Mr Hickey has suggested that this is not surprising given that they were asked to review injuries to the applicant’s cervical spine and right lower extremity. Whilst this is factually accurate, what is surprising is that the applicant failed to make any claim for compensation in relation to lumbar spine symptoms despite having the assistance of legal representation.
164.The first investigation of lumbar symptoms occurred following the consultation with Dr Sheridan on 15 January 2014. As noted above, Dr Sheridan did not take a history of lumbar symptoms commencing from the time of the 2009 fall on this occasion. The applicant was referred for an MRI of the lumbar spine which showed nerve compression at multiple levels. Dr Sheridan recommended a conservative approach to pain management.
165.In a referral back to Dr Sheridan in July 2014 in relation to worsening lumbar symptoms, Dr Nguyen again made no reference to those symptoms being related to the 2009 fall. The first mention of this appeared in the clinical record discussed above, dated 24 July 2014. By this time it had been more than five years since the fall.
166.Although Dr Sheridan described lumbar symptoms in an income protection claim form in August 2014 he did not indicate in that form that the symptoms dated from the injury on 9 July 2009. The injury of that date was said to have involved only the neck and arm pain.
167.Dr Bazina did take a history of the applicant injuring her lumbar spine and experiencing a new onset of back symptoms following the fall when she first saw the applicant in July 2015. A similar history was provided to Dr Thalayan in 2017. The same history appears in the applicant’s statements and in the histories provided to the medicolegal experts in the present proceedings. I have given weight to the consistent reporting of an onset and continuation of lumbar symptoms from this point forward in the evidence.
168.The absence of documentary evidence apart from the single clinical record on the date of the fall to lumbar symptoms commencing from the time of the fall for some five years is, however, significant. In Department of Education and Training v Ireland[5] where the President, Keating J found:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
[5] [2008] NSWWCCPD 134.
169.In considering the evidence before me, I am also conscious of the observations in cases such as Watson v Foxman[6] and Onassis v Vergottis[7]. In the latter case, Lord Pearce commented upon what is often recollected and said by witnesses, many years after an event, as opposed to what is contemporaneously recorded in documents at the time of the event, in the following terms:
"Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point, it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
[6] (1995) 49 NSWLR 315.
[7] (1968) 2 Lloyds Report 403.
170.Having carefully weighed the evidence, and for the reasons set out above, I am not satisfied that the applicant either experienced or reported ongoing lumbar symptoms after 9 July 2009 for a number of years. I am not satisfied that when they were reported in 2012, 2013 or early 2014, the applicant’s lumbar symptoms were reported to have been ongoing since the 2009 fall.
171.The single mention of lumbar symptoms without further explanation in the clinical record of 9 July 2009, has however given me pause. It may be that the reference to symptoms at L4/5 and reduced range of movement was an error or an incidental finding. It may also be that the record reflected actual symptoms reported by the applicant on that date. In these circumstances, I have considered the possibility that the applicant did in fact experience new or different symptoms at her lumbar spine in the context of the fall on 9 July 2009.
172.Both Dr Sheridan and Dr Endrey-Walder have given opinions that the present need for lumbar surgery does relate to the fall.
173.Dr Sheridan’s opinion is completely unexplained. Dr Sheridan’s treating reports do not reflect a history of symptoms commencing in the fall on 9 July 2009 being given when he was first consulted in relation to the lumbar symptoms. Whilst Dr Sheridan expressed disagreement with the opinion of Dr Stenning, he did not explain why. Dr Sheridan’s reports do not address the absence of any record of lumbar symptoms being reported in the context of the fall for a period of more than five years between 9 July 2009 and 24 July 2014.
174.Dr Endrey-Walder’s report gives little more by way of explanation. Dr Endrey-Walder’s opinion was based on the history provided to him of the applicant hurting her lower back after landing heavily in the fall on 9 July 2009 and continuing to complain of significant lower back pain radiating to her lower limbs thereafter. There is, however, no contemporaneous evidence of the applicant continuing to report lumbar symptoms. For the reasons set out above, even if the applicant did report symptoms in the lumbar spine on 9 July 2009, I do not accept that she continued to report lumbar symptoms to Dr Nguyen or any other practitioner for several years.
175.Dr Endrey-Walder was aware that the applicant first complained to Dr Sheridan of lower back pain in the context of the fall in 2014 but did note the earlier references to back symptoms in Dr Nguyen’s notes on 27 August 2012 and 16 August 2013. Dr Endrey-Walder did not deal with the absence of any reference to the fall in those clinical notes or the absence of any investigation of the lumbar spine for several years after the fall. Dr Endrey-Walder did not address the failure to mention lumbar symptoms in the applicant’s 2009 written statement or the failure to make any claim in relation to lumbar symptoms in 2012 when the applicant was assisted by her former solicitors to make a claim for lump sum compensation in respect of the injury.
176.In Paric v John Holland Constructions Pty Ltd (at 846) the Court (Mason CJ, Wilson, Brennan, Deane and Dawson JJ) said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence ... to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”[8]
[8] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
177.I am not satisfied that the history on which Dr Endrey-Walder’s opinion was based is sufficiently like the facts as found by me after careful consideration of all the evidence.
178.Weighing against the opinions given by Dr Sheridan and Dr Endrey-Walder is the opinion of Dr Stenning. Whilst it is unclear whether Dr Stenning had his attention brought to the clinical record of 9 July 2009, he has addressed the absence of reported lumbar symptoms for several years after the fall. Dr Stenning appears to have given some considerable weight to the opinion expressed by Dr Powell in his report of 18 September 2014, in forming his own opinion on causation.
179.Dr Powell’s opinion is expressed in some considerable detail and is supported by thorough reasoning. Dr Powell indicated that the investigations available to him at the time indicated multilevel degenerative disease throughout both the thoracic and lumbar spine which was long-standing and unlikely to be related to any trauma event. Dr Powell noted the prevalence of lumbar pathology with advancing age. Dr Powell also noted that the applicant made no mention of lumbar symptoms arising from the incident at the time of his prior assessment.
180.Dr Powell noted that the applicant had been seen by a number of practitioners over time including for acute assessment, ongoing medical management and medicolegal assessment without any mention being made of an injury to the lumbar spine. Dr Powell said it was difficult to imagine that no record or investigation was undertaken if the applicant had made some form of complaint or suggestion of symptoms.
181.Dr Powell also found it unlikely that the mechanism described by the applicant would have resulted in significant injury to the spine.
182.Dr Stenning agreed with Dr Powell’s observation that from the reports available the applicant had a degenerative disease in her lumbar spine which would have been well advanced at the time of the 2009 injury. Whilst those investigations post-dated the fall by a number of years, I have given weight to the fact that both specialists interpreted the investigations in the same way. Whilst Dr Stenning conceded that the fall in 2009 could have aggravated the pre-existing degenerative change in the lumbar spine, he formed the view that any such aggravation must have been temporary and resolved by the time the applicant was seen by Dr Grant.
183.Mr Hickey has described Dr Stenning’s view that any aggravation was only temporary as a hypothesis which was inconsistent with the applicant’s evidence. For the reasons given above, however, I find his “hypothesis” to be consistent with the contemporaneous medical and factual evidence.
184.Dr Stenning did not believe that the surgery proposed by Dr Sheridan resulted from the fall in 2009 but rather was the result of the natural progression of the underlying degenerative changes.
185.After conducting my own examination of the medical and factual evidence, I find the opinions expressed by Dr Powell and Dr Stenning persuasive. I am not satisfied the applicant did sustain an injury to the lumbar spine in the fall on 9 July 2009, either in the nature of a new onset of lumbar symptoms or an increase in lumbar symptomology. Even if I am wrong in this conclusion and the applicant did experience new or increased symptoms at the lumbar spine on 9 July 2009, I am not satisfied that those symptoms persisted and continued to be experienced or reported in an unbroken chain.
186.Whilst I have no doubt that the applicant presently has a significant lumbar spine condition for which the surgery proposed by Dr Sheridan is reasonably necessary, I am not satisfied that the need for that surgery results from any injury occurring on 9 July 2009. I prefer the opinion of Dr Stenning over that given by Dr Sheridan and Dr Endrey-Walder.
187.There will be an award for the respondent in respect of the claim for compensation under s 60 for the costs of and associated with the proposed surgery.
Incurred expenses
188.The ARD also included a claim for incurred medical and related treatment expenses based on a Medicare history statement. The expenses had not previously been claimed and had not therefore been disputed. Most expenses appeared to relate to undisputed body parts. Although I was informed at the conciliation conference that a claim for incurred s 60 expenses was served on the insurer on 19 May 2021, in the absence of a notified dispute, I decline to make any order in respect of those expenses in these proceedings. It would be expected that the insurer will deal with the claim in the ordinary course and in accordance with s 60 of the 1987 Act.
SUMMARY
189.The applicant has not discharged her onus of establishing injury to the lumbar spine in the incident on 9 July 2009.
190.The applicant has not discharged her onus of establishing that the need for lumbar surgery proposed by Dr Sheridan results from injury on 9 July 2009.
191.Award for the respondent in respect of the claim pursuant to s 60 of the 1987 Act for the costs of and incidental to the L2/S1 laminectomy and L4/5 fusion proposed by Dr Mark Sheridan.
192.I decline to make any order in respect of the incurred s 60 expenses claimed.
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