Elliot v Franklins Pty Limited
[2022] NSWPICPD 38
•18 October 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Elliot v Franklins Pty Limited [2022] NSWPICPD 38 |
APPELLANT: | Shayne Elliot |
RESPONDENT: | Franklins Pty Limited |
INSURER: | AAI Ltd t/as GIO |
FILE NUMBER: | A1-W4273/21 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 18 October 2022 |
ORDERS MADE ON APPEAL: | 1. I confirm Orders 1 and 2 of the Member’s Certificate of Determination dated 9 December 2021. 2. Order 3 of the Member’s Certificate of Determination dated 9 December 2021 is revoked in so far as it relates to the lumbar spine injury of 8 January 2010. 3. In accordance with s 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998, upon redetermination, I enter an award in favour of the respondent in respect of the injury to the lumbar spine of 8 January 2010, and the claims for medical treatment pursuant to s 60 of the Workers Compensation Act 1987 and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987. 4. I confirm the Member’s decision in respect of the consequential conditions and enter an award for the respondent in respect of these injuries, and for the claims for medical treatment pursuant to s 60 of the Workers Compensation Act 1987 and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987. |
CATCHWORDS: | WORKERS COMPENSATION – whether effects of an injury have ceased – whether an injury has resolved - onus of proof resides with the party asserting injury has ceased or resolved - Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 applied - University of New South Wales v Brooks [2014] NSWWCCPD 68 applied – member’s decision revoked on appeal – new decision made - section 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr P Stockley, counsel | |
| Garling & Co Lawyers | |
| Respondent: | |
| Mr S Harris, solicitor | |
| Moray & Agnew Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr C Burge |
DATE OF Member’s DECISION: | 9 December 2021 |
INTRODUCTION AND BACKGROUND
Ms Shayne Elliott, the appellant, commenced employment with Franklins Pty Limited, the respondent, on 12 January 2009 as a contracts manager in the respondent’s property development department. The appellant remained in that employment until her employment was terminated on 11 October 2011.
On 8 January 2010, whilst the appellant was undertaking a full site survey of one of the respondent’s supermarkets at Westleigh, the appellant developed significant pain in her lower back as a result of bending, twisting, lifting and other repetitive movements undertaken in the course of her site survey. Before commencing employment with the respondent, the appellant had a significant history of pain and disability in her lumbar spine requiring extensive medical treatment. There is no dispute about this prior history.
In 2012, the appellant commenced proceedings in the then Workers Compensation Commission for this injury, claiming weekly compensation and medical expenses. The mechanism of injury was pleaded as extensive measuring involving bending and twisting.[1] The respondent disputed the claim on the basis that the appellant had not sustained an injury, or in the alternative, had recovered from the injury, noting the extensive pre-existing history of disability in the lumbar spine.[2] Those proceedings resolved by consent on 5 February 2013, with the respondent agreeing to pay the appellant a closed period of weekly compensation and medical treatment expenses.
[1] Reply to Application to Resolve a Dispute (reply), p 24.
[2] Section 74 Notice, reply, p 12.
Subsequently, the appellant underwent three spinal surgeries in 2014, 2017 and 2018, and in June 2020 made a claim for 37% whole person impairment (WPI) in respect of her lumbar spine injury, as well as other injuries alleged to arise as a result of the injury of 8 January 2010. These included a primary injury to the cervical spine, and consequential injuries to the right upper extremity, left and right lower extremities, the upper and lower gastrointestinal tract, as well as scarring associated with the tracts and lumbar surgery.
The respondent disputed liability by way of notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 13 October 2020. In this notice, the respondent asserted that the appellant had recovered from the injury to her lumbar spine of 8 January 2010 and also disputed that it was causative of the other injuries alleged. The respondent also asserted that the several spinal surgeries were not occasioned as a result of the injury of 8 January 2010, noting that the cost of those surgeries had not been claimed from the respondent. The respondent referred to the appellant’s extensive medical history of existing disability in the lumbar spine and argued that her work-related injury (being an aggravation of a pre-existing condition), had resolved.
Proceedings were commenced in the Personal Injury Commission, where the appellant formally pleaded that she sustained injuries to her “cervical spine, lumbar spine, SI joints and consequential injuries to bilateral hips, bilateral knees, bilateral shoulders, scarring and consequential injuries of upper GI and lower GI when she was required to carry out extensive measuring in store on the 6th and 8th of January 2010, which required bending and twisting, lifting and other repetitive movements”. The compensation claimed included 37% WPI for all bodily systems, as well as medical expenses of $240,309.31 constituting “private health expenses, GP, specialist, hydro, physiotherapy, imaging, parking and travel expenses”. A claim for weekly compensation was also made but discontinued at arbitration.
The primary question for determination by the Member at first instance was whether the effects of the accepted injury to the lumbar spine on 8 January 2010 had passed, and as a result whether any pain or disability continuing to be experienced by the appellant relates to her pre-existing lumbar condition. The appellant asserts that the events of 8 January 2010 were of such a quality that they led to further surgeries and a complete inability to continue in the workforce. Indeed the appellant relies upon the termination of her employment which was on the basis that she was unable to perform the inherent requirements of her role with the respondent. The Member was also tasked with determining whether the injury of 8 January 2010 caused injury to the cervical spine, and the consequential conditions.
For the reasons outlined below, the appellant did not succeed in her claim with respect to her lumbar spine and the consequential conditions. With respect to this aspect of her claim, the Member entered an award in favour of the respondent. It is from the decision in respect of the lumbar spine that the appellant now pursues this appeal and seeks an order to set aside the award for the respondent made by the Member for that claim and the consequential conditions. The appellant was successful in establishing a primary injury to the cervical spine on 8 January 2010, and those orders made by the Member are not in dispute in this appeal.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The appellant filed further submissions on 31 January 2022 dealing with compliance with s 352(3) of the 1998 Act and no issue is taken with those submissions by the respondent. I am therefore satisfied, consistent with the appellant’s submissions, that the threshold specified by the statute is satisfied.
THE EVIDENCE
The central issue in this matter is the appellant’s extensive history of back pain. A significant amount of evidence was filed in the proceedings before the Member, with over 1,500 pages attached to the Application to Resolve a Dispute and 274 pages in the Reply. Only parts of the evidence were relied on by the parties at arbitration, with the Member referring to the “extraordinary amount of material” and advising the parties that any material he was not taken to would not be considered in accordance with the approach referred to by the High Court in Gamester Pty Ltd v Lockhart.[3] The Member observed that this approach aligned with the objects set out in s 3 of the 2020 Act which require the Personal Injury Commission to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.[4]
[3] (1993) 112 ALR 623 (Lockhart).
[4] Elliot v Franklins Pty Ltd [2021] NSWPIC 513 (reasons), [9]–[10].
I too will deal with the evidence in this way and refer only to the evidence which is germane to the Member’s decision and the disposal of this appeal. I will detail the medical and statement evidence relevant to the disposition of this appeal under each ground below, but in summary I remark that the appellant’s medical records recount extensive and continuous complaints of back pain and flareups as early as 2000 which required a plethora of treatment from several medical practitioners including Dr Paul Russell (general practitioner of Neutral Bay Medical Centre), Dr K E Khor (anesthesia and pain management specialist), Dr Thomas Russell (Registrar, Pain Management of Prince of Wales Hospital), Dr Milton Cohen (pain management specialist) and Dr Michael Donnellan (neurosurgeon). The appellant received treatment by way of heavy prescription painkillers and analgesics, spinal blocks, hydrotherapy, physiotherapy, emergency hospital and pain clinic attendances in the lead up to and after the events of 8 January 2010. In fact, a report from Dr P Russell of 6 April 2011 stipulated that the appellant’s history of back problems dated back to 1986.[5]
[5] Application to Resolve a Dispute (ARD), p 327.
Clinical records from Neutral Bay Medical Centre available in the Reply[6] confirm complaints from the early 2000s, primarily in the L4/5 region, requiring the use of strong pain medication, such as valium.[7] There is an entry recorded by Dr Paddy Brazier of 30 December 2008 which indicates that the appellant attended the emergency department the week prior due to severe pain and was “very limited by pain in across [sic] lumbar spine all movements …”.[8] The radiology prior to and after the appellant’s injury of 8 January 2010 is extensive, with a CT scan from 2000 revealing a left L4/5 para central disc protrusion.[9] Another from 2007 revealed a L4/5 annular tear and mild focal disc herniation.[10]
[6] Reply, p 29.
[7] ARD, pp 222, 230, 237–241.
[8] Reply, p 98.
[9] Reply, p 127.
[10] ARD, p 236.
Clinical records after the date of injury indicate that similar complaints relating to the lumbar spine continued, with several falls and activities causing the appellant’s pain to flare and requiring prescriptions of MS Contin, Ordine, valium, morphine and ketamine infusions.[11]
[11] ARD, pp 35–221.
The evidence in the ARD also reveals several hospital admissions and emergency department visits from 2000 to 2019. In terms of pain management, prior to 8 January 2010, the appellant primarily came under the care of Dr Khor and Dr Thomas Russell of the Prince of Wales Pain Management Clinic. In a 2009 report from Dr Thomas Russell, there is reference to five prior visits to the emergency department requiring morphine for back pain. Following the injury of 8 January 2010, the appellant’s pain was managed by a private pain specialist, Dr Cohen, who formulated the view that what occurred on that day constituted a “new biomechanical event”.[12]
[12] ARD, p 338. I note that this opinion was accepted by Dr Couch, Specialist in Occupational Medicine, who provided an independent medical report at ARD, p 391.
The appellant eventually came under the care of a neurosurgeon, Dr Donnellan in 2013. As will be referred to in detail throughout this decision, Dr Donnellan conducted the surgical procedures in dispute and opined that the appellant’s injury of 8 January 2010 was causative of the appellant’s continuing symptoms. In a report of 6 March 2013, despite the clinical history prior to 2010, Dr Donnellan recounted that the appellant’s disc injury in 2001 was “treated reasonably well with conservative measures” and the injury on 8 January 2010 caused significant deterioration.[13] In a report of 13 June 2013, Dr Donnellan referred to a bone scan and discogram which indicated that the L4/5 disc did not reproduce typical sciatica or back pain, but there was facet join arthropathy at other levels which warranted injections, and the potential for surgery. Dr Donnellan referred the appellant to Dr Marc Coughlan, neurosurgeon, who recommended surgery to treat the L4/5 disc in a report of 10 October 2013.[14] Dr Donnellan first performed a L4/5 anterior lumbar interbody fusion on 9 January 2014.[15] This did not appear to alleviate the appellant’s symptoms, as it was followed by several hospital attendances and facet join injections throughout 2014.[16] In 2015, the appellant underwent a medial blanch ablation to the L5/S1 level which according to Dr Donnellan in a report of 9 May 2016, had a short-lived response and therefore required consideration of further surgery.[17] On 20 October 2017, the appellant underwent an L5/S1 anterior lumbar interbody fusion.[18] However, this also did not appear to alleviate the appellant’s pain, as she continued to receive facet join injections, ablations and attend the hospital emergency department on multiple occasions after this date. Dr Donnellan concluded that the appellant’s fusion had failed and thus recommended a L5/S1 pedicle screw fusion with a posterior lateral graft, which took place on 19 October 2018.[19] Notwithstanding the third surgery, the appellant continued to experience pain of such gravity which has seen her attend the hospital emergency department on a regular basis and continue the use of pain medication.
[13] ARD, p 422.
[14] ARD, p 434.
[15] ARD, p 440.
[16] ARD, p 476.
[17] ARD, p 498.
[18] ARD, p 555.
[19] ARD, p 694, 726.
In an Application to Admit Late Documents, the appellant served a report of Dr Donnellan dated 5 October 2021. In this report, the doctor posits an opinion that the injury on 8 January 2010 caused a further injury to the appellant’s lumbar spine, thus causing an inability to engage in employment and requiring three spinal surgeries. In coming to this opinion, the doctor said, “I suspect she injured her disc in 2001 and then made a reasonable recovery from that injury” noting the appellant was “able to work”.[20]
[20] Application to Admit Late Documents (AALD), p 2.
The independent medical reports relied on by the appellant include two opinions from Dr James Bodel, orthopaedic surgeon, dated 4 March 2020 and 30 June 2021. In the first report, Dr Bodel makes no mention of any back issues prior to the incident of 8 January 2010, but this is addressed in the doctor’s second report. Dr Bodel notes that the appellant had a “long history of past problems with her back” but the work injury made it “worse”.[21] According to the doctor, the appellant was “reasonably asymptomatic” at the time of the injury of 8 January 2010.[22]
[21] ARD, pp 870–871.
[22] ARD, pp 874– 875.
The independent medical reports relied on by the respondent include the opinion of Dr James Powell, orthopaedic surgeon, dated 15 July 2011, in which the doctor concludes that the appellant’s injury of 8 January 2010 was a temporary aggravation in a long history of non-specific musculoskeletal pain, the ongoing effects of which related to her pre-existing condition. The appellant also relies on Dr David Millons, orthopaedic surgeon. In a report dated 28 September 2020, Dr Millons takes a comprehensive history of issues dating back to 2000 and after the date of injury of 8 January 2010, including all available radiology. Following review, Dr Millons formed the view that that the existing injury was “long standing” and the work performed on 8 January 2010 may have caused a temporary aggravation of a degenerative condition which did not particularly influence the course that followed, or the requirement for three spinal surgeries.[23]
[23] ARD, p 854.
THE MEMBER’S REASONS
The appellant was not successful in her claim relating to the lumbar spine or the consequential conditions but succeeded in establishing the cervical spine injury.
In coming to this decision, the Member outlined the following matters for determination before him:
(a) whether the accepted lumbar injury sustained on 8 January 2010 had resolved;
(b) whether the need for lumbar surgery performed in or about January 2014, 20 October 2017 and 19 October 2018 was brought about as a result of the injury of 8 January 2010, and
(c) whether the appellant suffered consequential conditions to her cervical spine, sacroiliac joints, hips, knees, shoulders, and gastrointestinal tract as a result of the injury sustained on 8 January 2010.
Regarding the first matter, the Member was satisfied that the lumbar spine injury of 8 January 2010 had resolved. The Member considered that the question to be answered was whether the effect of the appellant’s injury had passed by mid-2011 when examined by Dr Powell. This required a close examination of the appellant’s medical condition in the lead up to and after the injury on 8 January 2010.[24] The Member accepted Dr Powell’s opinion that the work event was only one episode in a long history of non-specific musculoskeletal pain which happened to occur in the workplace, and whilst employment was a contributing factor at that time, it was not responsible for the appellant’s overall condition and any aggravation in the lumbar spine had resolved.[25]
[24] Reasons, [16].
[25] Reasons, [17]–[19].
The Member referred to the appellant’s medical records from 2001 to 2010, and repeated specific complaints of pain made to various medical practitioners over those years, including the CT scan in late 2000 which revealed disc pathology at L4/5; treatment for disc pathology in 2001 including morphine intake; attendance at a pain clinic in 2003 resulting in prescription of MS Contin; serious back pain in 2004 requiring the appellant to take up to six valium per day, receive treatment at a pain clinic and attend physiotherapy. The Member noted these complaints continued into 2006 when the appellant underwent spinal blocks and was referred to a surgeon. An MRI on 30 April 2007 revealed a L4/5 annular tear and mild focal disc herniation. Those complaints continued into 2008, with an entry on 19 January 2008 reporting an exacerbation after slipping on the floor, and again in September 2008 when vacuuming. There is reference to the medical record dated 30 December 2008 regarding attendance at the hospital emergency department following an acute exacerbation after “changing wardrobe” and retrieving Christmas presents from under a bed, requiring an increase in pain medication and prescription of pethidine. Consistent amongst these entries is on-going prescription of pain medication.[26]
[26] Reasons, [20]–[31].
The Member referred to the evidence available after the commencement of the appellant’s employment with the respondent and the continuing treatment to her back. The Member referred to the report of Dr Thomas Russell of 27 January 2009, one year prior to the injury, which indicated that the appellant was in hospital for five days due to an exacerbation of back pain. This required an increase in pain mediation, including subcutaneous morphine. Notably, in this report, the doctor records that the appellant had started to work for the respondent “but is worried that she might lose the job if the pain gets worse and she needs more time off work…”.[27] There is another report of 28 January 2009 recording that the appellant’s pain while standing in a meeting was “unbearable”, repeated in a record in June 2009. The Member commented that in July 2009, the appellant told her general practitioner that she had “five trips to hospital” but could not take time off work, and underwent a spinal block. The pain clinic at Prince of Wales Hospital wrote to the appellant’s general practitioner on 23 July 2009 to report a recent admission and the significant prescription of pain medication including MS Contin, Lyrica, Duloxetine, Ordine, pethidine and valium. The Member noted that in August 2009, the appellant underwent a further spinal block, but suffered a subsequent flare up in September 2009.[28]
[27] Reasons, [32].
[28] Reasons, [35].
The Member formed the view that the medical records “clearly demonstrate the [appellant] had significant and debilitating symptoms in her lumbar spine from 2001 until the injury at issue”.[29] Although the appellant’s statement of 5 February 2013 confirmed she took “heavy” doses of strong painkilling medication, the Member considered the medical evidence was inconsistent with her assertion that she could engage in full-time work with the respondent “without difficulty”. In the Member’s view, to say that the appellant’s symptoms were “minor” was inconsistent with the administration of painkillers. Further, the Member thought it unlikely for a patient to be subject to “ongoing care in a pain clinic setting unless their symptoms were both chronic and serious”.[30]
[29] Reasons, [36].
[30] Reasons, [38]–[39].
The Member was also not satisfied by the opinions of Dr Bodel noting the history recorded therein of the appellant being reasonably asymptomatic prior to 8 January 2010.[31]
[31] Reasons, [40]–[44].
The Member commented that a difficulty for the appellant’s case was the prolonged and serious pathological changes in the lumbar spine which were present before the events of 8 January 2010. In summary, the evidence revealed consistent visits to her general practitioner, her specialist and pain clinic to deal with lumbar spine problems from at least 2000. Although the events at work in January 2010 aggravated a pre-existing condition, the Member found that the pre-existing condition was not asymptomatic because such a “serious regime” of pain killers “is not given lightly, neither is multidisciplinary pain management treatment”.[32]
[32] Reasons, [48].
The Member also found it difficult to accept the medical opinion of the appellant’s treating surgeon, Dr Donnellan, in his report of 5 October 2021 that the appellant had “made reasonable recovery” from the 2001 injury until the work events of January 2010. In the Member’s view, the clinical picture was to the contrary and revealed a “consistent, longstanding pattern of lumbar spine issues requiring significant non-surgical intervention over the course of a decade”. The Member noted Dr Donnellan’s opinion and considered that the appellant’s injury represented the “latest in a long line of comparatively prosaic incidents over the course of many years”. The Member instead accepted the opinion of Dr Millons that any aggravation was temporary and did not require the surgeries. The Member considered Dr Millons’ opinion was consistent with the appellant’s clinical picture and more reliable, as the doctor had comprehensively reviewed the evidence. [33]
[33] Reasons, [51]–[53].
In ultimately finding for the respondent, the Member held as follows, but I should remark that for the reasons outlined in my decision below, the Member did not apply the correct evidentiary onus in coming to this conclusion that the appellant’s lumbar injury had resolved:
“In my view, the [appellant] has not established that the effects of the injury on 8 January 2010 are ongoing, or indeed were ongoing by the time she underwent lumbar surgery. That is, I am of the view that the pre-existing changes have overtaken the effects of that aggravation, and indeed had done so by approximately mid-2011 or 2012.”[34]
[34] Reasons, [49].
At reasons [51], the Member repeated this finding:
“I am not satisfied on a common-sense evaluation of the causal chain that the [appellant] has discharged her onus in establishing the effects of her injury are ongoing and have not been overtaken by the very serious underlying condition from which she suffers.”
The Member therefore did not accept that the three subsequent surgeries were required as a result of the injury of 8 January 2010. It was unclear whether the surgery was brought about by the injury, or whether the injury bought forward the need for surgery, and on what basis Dr Donnellan could opine that the appellant made a reasonable recovery from the initial injury in 2001 despite the lengthy history of issues the following decade. The Member concluded it was the appellant’s pre-existing problems which necessitated the need for the surgery.[35]
[35] Reasons, [54]–[55].
The Member reflected on the test of causation in respect of medical treatment, that is, whether treatment is required “as a result” of an injury as opposed to the separate test posed by s 60 of the 1987 Act as to whether treatment is “reasonably necessary”. The Member referred to the appellant’s onus to establish causation in respect of treatment and commented that where the aggravation of an underlying condition may require medical treatment, the facts of the matter could also lead to a finding that without the aggravation, the treatment may have been required anyway. The Member thus posed the following question to highlight the distinction between the “mere but for” and “common sense causation” test: “did the injury bring to light a need for treatment that was going to be necessary anyway or did the injury not only bring to light the need for treatment which was going to be needed anyway, but that treatment was required and the option to wait and/or try other treatments has been removed?”[36] The Member referred to the matter of Jenkins v State of Tasmania[37] where the Tasmanian Supreme Court discussed the law surrounding the “results from” test and held that even if a worker would not have required treatment if not for a work injury, this does not establish causation if the treatment corrected a pre-existing condition which came to light after a work-place incident.[38] The Member believed the situation for the appellant was comparable to a greater extent, as the appellant’s pre-existing condition was known and symptomatic until 8 January 2010, and it was also unclear based on the radiological evidence whether that injury caused a radiological change which brought about the requirement for surgery.
[36] Reasons, [59].
[37] [2012] TASSC 22
[38] Reasons, [63].
As such, the Member concluded that the appellant had not discharged her “onus of proof in establishing the effects of the injury are ongoing and have not been superseded by the inevitable effects of her very serious pre-existing lumbar spine condition”.[39]
[39] Reasons, [64].
The Member also considered the decision of Deputy President Roche in Taxis Combined Services (Victoria) Pty Ltd v Schokman[40] who said it was a “matter of concluding that, as a matter of common sense, the injury was a material cause of the need for the proposed treatment … even if other factors were also present that may have also contributed to that need”.
[40] [2014] NSWWCCPD 18.
Ultimately, the Member’s view was that the appellant’s pre-existing condition was “plainly serious and on balance, indicates that she would have required the three rounds of surgery in any event”. The Member considered that the appellant’s radiology in 2007 and 2013 represented consistent discogenic pain which was surgically treated after the injury of 8 January 2010. Again, the Member concluded that he appellant failed to “satisfy the onus of proof in establishing that the effects of her injury in January 2010 remained ongoing or were ongoing at the time when she underwent the rounds of lumbar surgery at the hands of Dr Donnellan. It follows that, having found the effects of the 2010 injury had passed before the surgeries undertaken by Dr Donnellan, the requirement for that surgery cannot be said to have resulted from the workplace injury”.[41]
[41] Reasons, [71]–[72].
In respect of the cervical spine injury, the Member was satisfied on the medical evidence and the appellant’s statement evidence that she sustained an injury to her neck on 8 January 2010 in the absence of contradictory evidence.[42] However, the Member was not satisfied that the appellant had sustained a consequential injury to the gastrointestinal tracts. The Member did not accept the medical opinion of Dr Greenberg who independently examined the appellant in respect of the gastrointestinal injuries, as the doctor failed to account for the appellant’s long-standing history of analgesic and pain medication intake prior to the injury on 8 January 2010. It appeared that the doctor attributed the requirement to take medication causing these issues to the work injury only, and thus, was an unreliable opinion.[43]
[42] Reasons, [73]–[76].
[43] Reasons, [78].
In respect of the other consequential physical injuries to the shoulders, hips and knees, the Member determined that because he had found that the effects of the appellant’s work-injury were “superseded” by the appellant’s pre-existing condition, he could not be satisfied that the work injury had caused these conditions. Rather, they represented conditions which arose from the appellant’s pre-existing problems on the background of lengthy issues affecting the appellant’s ability to walk and hospitalisations.[44]
[44] Reasons, [79].
The Certificate of Determination issued on 9 December 2021 records:
“The Commission determines:
1. Leave is granted to amend the Application to Resolve a Dispute to make a claim for whole person impairment to the cervical spine of 5%.
2. The respondent is to pay the [appellant’s] reasonably necessary medical and treatment expenses with respect to the cervical spine claim.
3. Otherwise, award for the respondent.”
GROUNDS OF APPEAL
The appellant pursues four grounds of appeal. They are as follows:
Ground One: Error of fact or law in making a negative credit/reliability finding in the absence of evidence or alternatively failing to give reasons for his approach to assessing the reliability of the appellant’s evidence.
Ground Two: Error of fact and/or law in failing to give consideration to the medical and lay evidence of the appellant’s post injury medical progress and functional capacity.
Ground Three: An error of law in reversing the evidentiary onus on the question of whether the effects of injury had ceased as argued for by the respondent.
Ground Four: An error of law in posing the wrong legal test as to whether or not the appellant was entitled to the costs of the lumbar surgery.
The appellant then asserts that as a consequence of the asserted errors, the Presidential member should either remake the relevant decisions, or alternatively remit the matter for hearing by another member.[45]
[45] Submissions of the appellant, [34].
NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
For the appellant to succeed, error must be established. Section 352(5) of the 1998 Act provides as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The approach to dealing with appeals under this provision has been the subject of a number of decisions at Presidential level. Roche DP in Raulston v Toll Pty Ltd[46] set out the principles the Commission will have regard to on appeal (since 1 March 2021[47] applying to a ‘member’ rather than an ‘arbitrator’):
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”
[46] [2011] NSWWCCPD 25, [19].
[47] The date of relevant commencement of the 2020 Act.
Additionally, a member must feel an actual persuasion or be comfortably satisfied of the existence of a fact.[48] I would remark that the Member has found that in this case the appellant did not discharge the onus of proof, although I do note that issue was taken in Ground Three of this appeal that the Member had reversed the onus of proof in this matter. I will deal with that assertion under Ground Three.
[48] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [55].
In an appeal which raises issues such as those advanced in this case, I am mindful of the determination of the former President of the former Workers Compensation Commission, President Judge Keating, in Department of Education and Training v Ireland[49] where his Honour (as he then was) said as follows in relation to the burden of proof which sits with the person in the appellant’s situation:
“In so doing, 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.
In State Rail Authority v Earth Line Constructions Pty Limited (in liquidation) [1999] HCA 3; (1999) 160 ALR 588 the High Court warned of the dangers of decision makers relying on findings of credit rather than evidence of facts necessary to determine a lawful entitlement in the instant case.”[50]
[49] [2008] NSWWCCPD 134 (Ireland).
[50] Ireland, [91]–[92].
LEGISLATION
Section 4 of the 1987 Act provides:
“4 Definition of “injury” (cf former s 6 (1))
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
CONSIDERATION
As to Ground One: Error of fact or law in making a negative credit/reliability finding in the absence of evidence or alternatively failing to give reasons for his approach to assessing the reliability of the appellant’s evidence
As I have stated above, there was no dispute between the parties that the appellant had had long standing lumbar problems prior to commencing employment with the respondent. However, the appellant says as follows in terms of how the Member dealt with this issue:
“Despite these uncontroversial features of the matter, the Member treated the evidence as though the significance of the existing condition had been denied by the appellant. For example, at [reasons] 38 he stated ‘notwithstanding her statement evidence to the contrary, in my view it is inconsistent with the prescription and administration of such strong pain killing medication to state the [appellant’s] low back symptoms immediately before the injury on 8 January 2010 were minor’.”[51] (appellant’s emphasis in bold, my emphasis in italics)
[51] Appellant’s submissions, [6].
The appellant points to negative conclusions said to have been drawn by the Member about the appellant’s credit at reasons [38]–[39] without specifically so acknowledging. This, the appellant says, suggests that negative conclusions informed the Member’s decision making.[52] The appellant asserts that the credit finding was not available to be made, or in the alternative, having made such a finding, insufficient reasons were given to substantiate such a finding.
[52] Appellant’s submissions, [10].
The starting point in evaluating Ground One is the appellant’s evidence. The appellant relied upon two statements, the first dated 5 February 2013[53] and the second dated 12 September 2020.[54] In her statement of 5 February 2013, the appellant sets out a number of formal matters before detailing her prior low back problems.[55] At paragraph [11] of her statement of 5 February 2013, the appellant says as follows:
“I was able to work full time in my employment at Franklins Pty Limited as a Contracts Manager without difficulty and I remained so employed from January 2009 until the current incident on 8 January 2010.”[56] (emphasis added)
[53] ARD, pp 1–5.
[54] ARD, pp 6–23.
[55] ARD, pp 1–2, [5]–[10].
[56] ARD, p 2.
In her second statement of 12 September 2020, the appellant says as follows at various points in her statement, which are relevant for consideration of this appeal point:
“23. Although I experienced exacerbations of pain from time to time, more in the leg than the back, the treatment plan I had in place allowed me to get on with my life, work in demanding roles and in fact complete a University degree.
…
27. I was able to work full time in my employment at Franklins Pty Limited as a Contracts Manager without difficulty and I remained so employed from January 2009 until the current incident on 8 January 2010.
30. I conducted these duties at the Pennant Hills store on 6 January 2010 and then on 8 January 2010 at the Westleigh store. The duties essentially involved surveying/measuring the whole stores.
31. In order to do so, I was required to stretch, bend, twist and move stock as required in order to obtain various measurements. As a result of the bending, twisting, lifting and other repetitive movements, I developed significant pain in my lower back on the left-hand side above the rear of my hip bone shooting upward.
32. In particular, on the second day I worked for two (2) hours at my usual office, commencing at 5:45am and then I went out to do measurements of Westleigh supermarket around 9:30am.
33. I recall that at the time of the injury I had completed around two (2) to three (3) hours of measuring up and during this time I needed to move around a lot of stock.
34. After doing two (2) to three (3) hours of measuring, I recall experiencing a sharp stabbing sensation in an upward direction when I stepped forward with my left leg. When I attempted to start walking the pain was severe and I walked with a limp due to the difficulty of walking.
35. The pain was so severe that it caused me to call out in pain. I reported the incident to a work colleague.
36. I tried to finish my shift but I was unable to do so. I completed an incident report and ceased duties that day.
37. I lodged a Workers Compensation Claim in January 2020 and initially the claim was accepted.
…
42. In my view at the time of my injury on 8 January 2010 whilst I did have pain in particular to my left thigh and some low back pain it did not prevent me from completing a degree of Bachelor Economics and was managed with medication.
43. The pain in my lumbar spine and the radiation of pain in my legs was much more severe post this accident on 8 January 2010.
44. I have also noticed following the injury on 8 January 2010 the onset of back and neck pain, with secondary pain in both shoulders and arms, as well as pain to my knees and feet.
45. I believe these to be new injuries as a consequence of either the work that I was undertaking on 8 January 2010 and secondary injuries consequent upon the injury I sustained to my neck and back. I did not have any similar pain or injuries to these parts of my body before 8 January 2010.
…
242. I have not worked since my last shift at Franklins.
243. The injury which occurred on 8 January 2010 has completely changed my life. I have been unable to work since, I am monopolised by medical requirements, Doctors visits, pain and restriction, ongoing procedures and managing my significant injuries.”
The impugned portions of the Member’s decision appear at reasons [38] and [39] (summarised at [26] above).
It is trite to say that the Member’s reasons must be read as a whole.[57] In this appeal ground, criticism is advanced of what is said to be a negative credit finding with respect to the appellant’s evidence and that there was a failure to give reasons for the Member making this finding when assessing the appellant’s evidence. As a consequence, it is necessary to review the decision more widely than the impugned paragraphs found at reasons [38] and [39].[58]
[57] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at [443].
[58] Appellant’s submissions, [10].
Before commencing this examination of the Member’s reasons, it is important to understand the context within which those reasons were given. The appellant presented to the Commission with a long pre-injury history of back pain and disability for which she had received significant medical attention. The respondent’s case was that the effects of the injury on 8 January 2010 were temporary and so it is not surprising that the Member’s attention was much taken up in dealing with this question.
The Member commenced his examination of the history of the appellant’s back condition at reasons [16]. The Member said as follows:
“… In examining this issue, it is necessary to deal not only with the [appellant’s] condition after January 2010, but to examine the records in the lead up to that timeframe, given her extensive history of low back pain.”
Thereafter, from reasons [17] to reasons [36], the Member carefully recounted the history of back pain afflicting the appellant before the stated injury of 8 January 2010. The Member also closely examined the medical treatment afforded to the appellant during this same period.
An examination of the history carried out by the Member reveals consistent pain and disability in the appellant’s lumbar spine from 2001 until the stated date of injury and thereafter. Concentrating on the period between 2001 and 8 January 2010, the pain in the appellant’s lumbar spine was frequently exacerbated or increased by a number of everyday incidents which were recounted by the Member. For example, lifting a stanchion,[59] slipping on polished floors,[60] vacuuming,[61] or standing in a meeting.[62] In particular the Member extracted parts of the report of Dr Thomas Russell dated 27 January 2009.[63] This extract appears at reasons [32].
[59] Reasons, [22].
[60] Reasons, [29].
[61] Reasons, [31].
[62] Reasons, [33].
[63] ARD, pp 239–240.
Pausing here, Dr Russell is the Registrar in Pain Management at the Prince of Wales Hospital and was treating the appellant with respect to her back pain. The doctor records:
“Shayne thinks that her pain is gradually getting worse and it is often now 10/10.”[64]
[64] ARD, p 239.
The report then goes on to describe that the appellant was “very keen” to consider a further epidural block but “does not wish to jeopardise her new job by taking time off work.”[65] The doctor ends the report by noting that should the pain become “unmanageable”, urgent arrangements can be made for the proposed epidural block.[66]
[65] ARD, p 239.
[66] ARD, p 240.
Problems with the appellant’s back continued during 2009 and were described by the Member at reasons [33]–[35]. This led the Member to state the following conclusion at reasons [36]:
“These entries clearly demonstrate the [appellant] had significant and debilitating symptoms in her lumbar spine from 2001 until the injury at issue.”
I would remark that this finding has not been challenged in this appeal. A review of not only the Member’s reasons, but the medical evidence for this period, provides ample basis for the Member to reach this conclusion.
The Member at reasons [38]–[39] is contrasting the appellant’s evidence, where she states that she was able to perform her work as contracts manager “without difficulty” until the incident, with the medical reports and records that the Member carefully considered.
I do not read the Member’s reasons as making any adverse finding regarding the appellant’s credit or reliability as a witness. The Member clearly did not accept the appellant’s assertion about working “without difficulty”. However if I am wrong in this consideration, the statement made at reasons [39], “It is apparent from the GP records that the [appellant] was not carrying out her work with the respondent ‘without difficulty’”, was a finding that was completely open to the Member having considered the medical evidence.
In ET-China.com International Holdings Ltd v Cheung,[67] Bell P (as he then was) dealt with the issue of witness evidence and documentary evidence and how they are to be treated. In submissions before the Member, counsel for the appellant did refer to “the deficiency of the histories recorded by doctors at various times”, but submitted that the Member “would have a degree of confidence in the account that the [appellant] herself has given to which you’ve already been taken by my friend.”[68]
[67] [2021] NSWCA 24 (Cheung).
[68] Transcript of proceedings 22 October 2022 (T), T 22.5–9.
As is apparent from Cheung, and in particular [28] of that decision, such documents will never be a complete record of an event, and as Cheung establishes, such a document must be understood and read in its context. There was no precise identification by the appellant of the alleged deficiencies in the medical histories and the records of treatment relied upon by the Member in his decision and these records are not the subject of criticism by the appellant in these proceedings.
This material read in context (as per Cheung) reveals that it is apparent from both the appellant’s evidence and a consideration of the history that she was unfortunately afflicted with a serious back complaint for approximately the nine years immediately prior to the subject incident (2001 to 8 January 2010). The medical records read in context reveal the appellant suffering aggravations to her back condition from time to time which require medical intervention. The context and purpose of those records of course was providing medical treatment to the appellant, they do not purport to be a complete record because that was not their purpose. In any event, a dispassionate reading of the medical records between 2001 and 2010 leads to the conclusion that was reached by the Member at reasons [36].
The fact that the Member did not accept the appellant’s statement that she was carrying out her work with the respondent “without difficulty” was available upon a consideration of all of the relevant evidence. For the same reason, I accept the Member’s finding that the prior injury was not “minor”. Whilst I do not consider this to be a positive adverse finding against the appellant’s credit, even if it is, it is a finding which is available and which involves the Member in no error.
In the extract that I have set out above from Ireland, the task before the Member was to weigh the evidence of the appellant together with the medical evidence of her prior lumbar condition. This the Member did, and this was a correct approach. It is apparent from a consideration of the material that the assessment being undertaken could not be decided on the basis of the appellant’s evidence alone.
On one view, the complaint in Ground One can be distilled to the following argument. Namely, the appellant’s evidence ought to have been accepted without qualification. This is not the correct approach. Rather, the Member undertook the process of weighing the evidence, both lay and medical, and was ultimately persuaded to reach the conclusion that he did based upon a detailed review of the medical evidence.
The second complaint under this ground is that the Member failed to give reasons for this approach to assessing the reliability of the appellant’s evidence.
For the same reasons that I have described above, I do not accept this assertion. A close reading of the Member’s decision as a whole, and in particular the passages starting at [16] leading up to the impugned paragraphs at reasons [38]–[39], sets out in some detail the reasons why the Member reached the view that he did. In particular, I refer to the Member’s finding at reasons [36] (set out above) which is not subject to any challenge in this appeal and which is a finding plainly available upon a consideration of the medical records.
Neither error alleged in Ground One has been established and, as a consequence, Ground One is dismissed.
As to Ground Two: Error of fact and/or law in failing to give consideration to the medical and lay evidence of the appellant’s post injury medical progress and functional capacity
The appellant maintains that the Member failed to give consideration to both lay and medical evidence of the appellant’s post injury medical progress and functional capacity. Whilst in the heading the ground is alleged to be an error of fact and/or law, the appellant ultimately alleges that the mistakes said to be made by the Member in construing the evidence constituted errors of fact.[69]
[69] Appellant’s submissions, [27].
Section 352(5) of the 1998 Act sets out the scope of an appeal from a Member’s decision. The question is was there error in how the Member dealt with the post injury evidence. In this regard the challenge is twofold, firstly in terms of the Member failing to give consideration to relevant evidence or being in error in terms of how it was dealt with.
The lay evidence
The appellant argues in the following manner:
“The focus for consideration, ought not have simply been the extent of the pre-existing condition but also the circumstances of injury and progress of her condition after that date.”[70]
[70] Appellant’s submissions, [14].
The appellant argues that before the injury on 8 January 2010, she could perform her duties and that afterwards she could not. This, it is acknowledged, does not determine issues of causation but is an important evidentiary component that required the Member’s consideration.[71] The appellant argues that the fact that she has alleged that she could not work after the 8 January 2010 incident needed to be dealt with by the Member in some way, and that if this statement had not been accepted, it needed to be dealt with. The appellant complains that she is left wondering whether this evidence was accepted or even considered.[72]
[71] Appellant’s submissions, [17].
[72] Appellant’s submissions, [18].
The appellant relied upon two statements in this matter.
In the first statement of 5 February 2013, the appellant gave lengthy evidence about her pain and discomfort after the 8 January 2010 incident and as a consequence her view that she could not work.[73] In her second statement, that of 12 September 2020, the appellant gave a lengthy description of her treatment and disabilities and expressed the factual statement that she had not been able to return to work since 8 January 2010.[74] In the same statement at paragraphs [241]–[247],[75] the appellant detailed her view that she had no capacity for work.
[73] See ARD, pp 3–5, [15], [24]–[25], [30].
[74] ARD p 9, [40].
[75] ARD, pp 22–23.
The Member has made no finding, based upon the appellant’s evidence, as to whether or not he accepted her statement that she was “unfit to resume any gainful employment of any kind”.[76] Equally it is true that the Member made no finding contrary to this proposition.
[76] Appellant’s statement, 12 September 2020, ARD p 22, [246].
At the hearing, counsel for the appellant submitted as follows:
“Perhaps I should say that the lumbar injury upon which the [appellant] relies, that is significant consequences of the injury on 8 January 2010 and [its] continuity and severity, in my submission, is demonstrated by the fact that whatever may have happened before, ever since that date the [appellant] has been totally without any capacity to work on any view, in my submission.”[77]
[77] T 35.12–19.
There was no dispute raised by the respondent at the hearing with respect to the appellant’s lack of capacity for work. Nowhere was there any dispute raised at the hearing that, contrary to the appellant’s evidence, she did in fact have a residual work capacity. Pausing here, the central medical opinion relied upon by the respondent, that of Dr Millons, does not dispute that she has no capacity for work.[78] Indeed Dr Millons says as follows:
“With a poor outcome from surgery, I believe that Ms Elliot would have difficulty returning to her pre-injury duties.
I believe that she would have difficulty performing tasks on the open labour market.
She needs a carer at home to watch out for her in her personal activities of daily living and in the domestic duties.
Realistically, having not worked now for 10 years and having carried problems with her back for at least some 20 years and probably longer than that, it would be difficult to restore her to the workforce.”[79]
[78] Report of Dr Millons dated 28 September 2020, ARD, p 830.
[79] ARD, p 853.
In short, the appellant’s work capacity was not a matter in issue. Rather the matter in issue was causation.[80]
[80] Reasons, [16].
The statutory obligation setting out the Member’s requirement to give reasons is found at s 294(2) of the 1998 Act and r 78 of the Personal Injury Commission Rules 2020. In summary, reasons must be “brief”. But additionally, where evidence is disputed, this dispute and how it is resolved must be explained by the Member.[81]
[81] Jennifer Tyack formerly t/as Country Kidz v Cain [2007] NSWWCCPD 119.
In the circumstances of this case, where the appellant’s evidence regarding her post injury capacity was not disputed, this is the relevant context within which the appellant’s complaint must be considered. There was no obligation upon the Member to resolve an issue that was not put in dispute.
Indeed it is the parties’ obligation under the 2020 Act to facilitate “the just, quick and cost effective resolution of the real issues in the proceedings”.[82]
[82] Section 42(1) of the 2020 Act.
The Member was not in error in terms of how the appellant’s evidence was dealt with. It was not necessary for the Member to make a positive finding with respect to a matter that was not in dispute and which, as the appellant correctly acknowledges, was not germane to the question of causation.
As a consequence, no error in terms of how the Member dealt the appellant’s lay evidence has been established and this aspect of Ground Two is dismissed.
The medical evidence
The appellant complains that the Member failed to give consideration to medical evidence that was relied upon by her in attempting to establish her case. The medical evidence referred to is that of her treating neurosurgeon, Dr Donnellan, and Dr Cohen, the appellant’s treating rheumatologist and pain management specialist.
Reference is made to the appellant’s qualified doctor, Dr Bodel, but no error on the part of the Member in dealing with Dr Bodel’s evidence is advanced. Consequently, it is only necessary for me to deal with how the Member treated the evidence of Dr Donnellan and Dr Cohen.
Prior to dealing with these reports, I address the appellant’s submission that Member’s focus “ought not to have simply been the extent of the pre-existing condition but also the circumstances of injury and progress of her condition after that date”[83] (emphasis added). It is the appellant’s assertion in this submission, that the Member failed to consider evidence regarding the appellant’s condition after the injury of 8 January 2010 in determining the appellant’s lumbar spine injury. I reject this, as at the outset of his reasons at [16], the Member advises that in the process of determining whether the effects of the appellant’s injury of 8 January 2010 have resolved, “it is necessary not only to deal with the [appellant’s] condition after January 2010, but to examine the records in the lead up to that timeframe, given her extensive history of low back pain” (emphasis added). The Member then proceeds to refer to various medical opinions, including Dr Powell at reasons [19], who provided the following commentary in respect of the appellant’s condition after 8 January 2010:
“It is likely that any local strain or aggravation in the lumbar spine that occurred around the time of the incident has resolved.
This has been overtaken by the broader pain problems that she now has
… The symptom is pain and she has continued more widespread pain. Although she dates some of this to the incident of January 2010, her current symptoms revolve around the broader pain.”
[83] Appellant’s submissions, [14].
I also note that Dr Donnellan commenced treatment of the appellant on 22 February 2013, after the injury of 8 January 2010. The Member refers to specific extracts of Dr Donnellan’s reports in his decision, including the doctor’s opinion that the appellant’s injury of 8 January 2010 was the “injury that stopped her from re-joining the workforce” and acknowledges the doctor’s opinion of the requirement for surgical intervention in the years following 8 January 2010.[84] Although the Member did not accept the opinion of Dr Donnellan in this regard, it is apparent that the Member has placed focus on the appellant’s condition following 8 January 2010, as well as her condition in the lead up to this injury, contrary to the appellant’s submission.
Dr Donnellan
[84] Reasons, [52].
In turning to the specific grounds raised, the appellant alleges that the manner in which the Member dealt with Dr Donnellan’s opinion was unsatisfactory in two respects. Firstly, issue was taken with the Member’s conclusion that the doctor was wrongly describing the appellant as having had a reasonable recovery from her 2001 injury.[85] The appellant maintains that Dr Donnellan considered that she made a partial recovery from her 2001 lumbar injury, albeit being dependent upon opioid pain relief, but still able to work. The appellant states that the Member’s criticism of the doctor's opinion (at reasons [53]–[54]) was not warranted and led the Member into error.
[85] Appellant’s submissions, [21].
Secondly, it is said that the Member applied a circularity of reasoning to negative or impeach Dr Donnellan’s opinions. The criticism of the Member is stated in the following terms:
“He concluded that Dr [Donnellan] was wrong because the injury was one of a series of relatively prosaic incidents. However, this question was really the ultimate issue. What the Member seems to be saying is that Dr [Donnellan] is wrong because I have already found otherwise. With respect, that is not a permissible approach. If the evidence and reasoning supported such a finding, he was entitled to conclude that the injury of 8 January 2010 was relatively inconsequential because Dr Donnellan was wrong. But first he was obliged to say why Dr Donnellan was wrong. He didn’t do so and as a result erred.”[86] (appellant’s emphasis)
[86] Appellant’s submissions, [24].
An associated argument to this point is that the use of the term ‘prosaic’ to describe the 8 January 2010 incident was unhelpful.
By the time the Member commences to deal with Dr Donnellan’s opinions, he had carried out a very detailed examination of the medical records in this matter.[87] The Member, having carried out this examination of the records, then stated as follows at reasons [36]:
“These entries clearly demonstrate the [appellant] had significant and debilitating symptoms in her lumbar spine from 2001 until the injury at issue.”
[87] See reasons, [20]–[35].
It is to be noted that no issue has been taken by the appellant with any of the histories of her complaints and treatments recorded in the medical records during this period, namely from 2001 until 8 January 2010. The Member then examined the post 8 January 2010 treatment.[88]
[88] Reasons, [43]–[47].
The Member then proceeds to deal with Dr Donnellan’s opinions from reasons [50] onwards.
With regards to the incident on 8 January 2010 and Dr Donnellan’s opinion, the Member found as follows:
“The difficulty with Dr [Donnellan’s] view is that the mechanism of the injury at issue really represents merely the latest in a long line of comparatively prosaic incidents over the course of many years which have sadly caused flare ups of the [appellant’s] lower back.”[89]
[89] Reasons, [51].
This “opinion” though is stated as though it were a fact, without explanation. As I have set out above, this opinion is contested by both Dr Millons and Dr Powell. It is not necessary for me to resolve the difference in opinion between Dr Cohen on one hand and Drs Millons and Powell on the other as to whether or not the incident on 8 January 2010 was a new biomechanical event. The reason why I do not need to resolve this dispute is that Dr Cohen has not explained his path of reasoning as to why he holds that opinion. Dr Cohen in this report does refer to the appellant’s longstanding back problems, stating that she was on “stable medication”. Whilst I accept that this view is very much in summary form, it does not accord with the history which the medical records reveal between 2001 and 2010. The medication being taken by Ms Elliot was anything but “stable”, and once more I refer to the report of Dr Russell of 27 January 2009 where he says:
“She also admits to taking 100mg of Pethidine subcutaneously using a supply she obtains from a general practitioner on the North Shore. She is aware that Dr Khor does not approve of her use of Pethidine but feels that this is something that she finds useful in times of desperation. I was unable to pin her down on exactly how frequently she does use Pethidine but got the impression this was around once or twice a week.”[158]
[158] ARD, p 239.
This medical record paints a situation of the appellant, obviously in great distress, obtaining and administering powerful medications such as pethidine in addition to other drugs. Clearly Dr Russell is concerned about this when he records this in his report. This situation, with respect to Dr Cohen, is not “stable”.
It is unclear from Dr Cohen’s report exactly how much detail of the history he was aware of such as to substantiate his opinion that the pain had different characteristics from her previous pattern. This opinion, with respect, is close to an ipse dixit.
It is for these reasons that I prefer the opinion of Dr Millons to that of the appellant’s medical practitioners. As Dr Millons states:
“The history of events that have overtaken Ms Elliot through her life is extremely long and complex.”[159]
[159] Reply, p 230.
This is a correct statement, and it is clear that Dr Millons was placed in the best position possible to consider all relevant matters pertaining to the appellant’s history and medical treatment before arriving at his opinion that the injury of 8 January 2010 was a temporary aggravation, and unlikely to influence the appellant’s requirement for subsequent surgical intervention, which I accept. To the contrary, the appellant’s doctors upon whom reliance is placed do not have a detailed picture of the pre-January 2010 situation, although it is clear that they are aware of the fact that the appellant had a back injury in 2001 and was under medical supervision thereafter. I am fortified in relying upon Dr Millons’ opinion as quite separately, Dr Powell has reached a similar view. Dr Powell examined the appellant in 2011, that is the year after her 8 January 2010 incident. In Dr Powell’s report of 15 July 2011, he notes his awareness of the appellant’s back pain from 2001.[160] Dr Powell did not have the quantity of material that Dr Millons was instructed with, but he ultimately reached the following view:
“Her current incapacity relates to the development of widespread pain syndrome and is a condition pre-existing her event of January 2010 and her current condition being substantially contributed to by the subsequent development of a broader pain syndrome.”[161]
And further:
“It is likely that any local strain or aggravation in the lumbar spine that occurred around the time of the incident has resolved.
This has been overtaken by the broader pain problems that she now has.”[162]
[160] See section of report entitled “Previous History”, reply, p 218.
[161] Reply, p 225.
[162] Reply, p 226.
Dr Powell had earlier described how in his view the appellant acquired her “widespread pain problem”.[163] In short, Dr Powell has provided a reasoned basis for his opinion.
[163] Reply, p 224.
The respondent has established that the effects of the 8 January 2010 injury to the lumbar spine had ceased, and as a result there will be an award for the respondent in this regard. Whilst the error established in Ground Three requires me to redetermine the Member’s decision in respect of the claimed injury to the lumbar spine, it follows that having ultimately reached the same conclusion as the Member, I confirm the Member’s decisions in respect of the claims for the consequential conditions and surgical intervention to the lumbar spine and, also note that I have rejected any error in respect of the Member’s finding at Ground Four. The Member’s findings in respect of the cervical spine are not in question.
ORDERS
I confirm Orders 1 and 2 of the Member’s Certificate of Determination dated 9 December 2021.
Order 3 of the Member’s Certificate of Determination dated 9 December 2021 is revoked in so far as it relates to the lumbar spine injury of 8 January 2010.
In accordance with s 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998, upon redetermination, I enter an award in favour of the respondent in respect of the injury to the lumbar spine of 8 January 2010, and the claims for medical treatment pursuant to s 60 of the Workers Compensation Act 1987 and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.
I confirm the Member’s decision in respect of the consequential conditions and enter an award for the respondent in respect of these injuries, and for the claims for medical treatment pursuant to s 60 of the Workers Compensation Act 1987 and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.
Judge Phillips
President
18 October 2022
11
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