Elliot v Franklins Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Elliot v Franklins Pty Ltd [2021] NSWPIC 513
APPLICANT:	Shayne Elliot
RESPONDENT:	Franklins Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	9 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation and medical and treatment expenses; respondent alleges effect of accepted lumbar injury has passed and applicant’s ongoing serious impairments relate to pre-existing conditions; respondent also denies alleged cervical spine injury together with consequential conditions to knees, shoulders and gastro-intestinal system; Held - the effects of the lumbar spine injury have passed and had passed before the applicant underwent surgery in 2014; the applicant suffered an injury to her cervical spine in the incident at issue, however, on the applicant’s own case that injury does not meet the threshold for permanent impairment compensation; the claims for consequential condition to the shoulders, hips and knees together with the gastrointestinal system are not made out; award for the respondent.
DETERMINATIONS MADE:	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 applicant’s reasonably necessary medical and treatment expenses with respect to the cervical spine claim. 3. Otherwise, award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Shayne Elliot (the applicant) brings proceedings seeking the payment of medical and treatment expenses together with permanent impairment compensation in respect of an injury which he alleges took place in the course of his employment with Franklins Pty Ltd (the respondent) on 8 January 2010.
The proceedings originally included a claim for weekly benefits, however, that claim was discontinued at the hearing. The respondent admits the fact of an injury to the applicant's lumbar spine, however, it says the effects of that injury have passed. The applicant also claims injury and consequential condition to a plethora of other body parts, each of which are refuted by the respondent.
The applicant alleges she suffered injuries to her cervical spine, lumbar spine and sacroiliac joints on 8 January 2010. Additionally, she alleges that as a result of those injuries, she developed consequential conditions to her hips, knees, shoulders, upper and lower gastrointestinal systems and scarring consequent to surgery. The injuries are said to have arisen as a result of having to carry out what is described in the Application to Resolve a Dispute (the Application) as extensive measuring in a store which was being renovated/ refitted on 8 January 2010. The duties complained of allegedly required bending and twisting, lifting and other repetitive movements.
The matter is complicated by a history disclosed in the clinical records attached to the pleadings which demonstrates extensive pre-existing lumbar spine problems. The respondent alleges that the three rounds of spinal surgery performed in or about January 2014, on or about 20 October 2017 and on or about 19 October 2018 were not brought about by any work related injury, and instead were a result of the development and progression of the applicant’s pre-existing condition.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant has fully recovered from any injury to her lumbar spine;
(b) whether the spinal surgery performed in or about January 2014, 20 October 2017 and 19 October 2018 was reasonably necessary as a result of any injury arising or occurring in the course of the applicant’s employment on 8 January 2010, and

(c) whether the applicant suffered any injury or consequential condition to her cervical spine, sacroiliac joints, hips, knees, shoulders and the gastrointestinal system as a result of her injury on 8 January 2010.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the representations made in the pleadings. I attempted to use my best endeavours to assist the parties to reach a resolution acceptable to them all, however, I have been unable to do so. Accordingly, the matter proceeded to hearing before me via telephone on 22 October 2021.
At the hearing, Mr P Stockley of counsel instructed by Mr M Garling, solicitor, appeared for the applicant. Mr S Harris, solicitor, appeared for the respondent.
As already noted, at the hearing, the applicant discontinued her claim for weekly compensation. The compensation therefore the subjective of this decision is a claim for reasonably necessary medical and treatment expenses together with a claim for permanent impairment compensation.
It should be noted that there is an extraordinary amount of material annexed to the Application given the nature of these proceedings. I indicated to the parties before the hearing that unless I was specifically taken to a document, I would not be relying upon it in making this decision. That approach is consistent with the observations of the High Court in GamesterPty Ltdv Lockhart (1993) 112 ALR 623, where it was observed that a Court is not required to “search for supporting evidence” in support of a claim. In that matter, the High Court stated:
“In Court proceedings, the Judge is bound to give a party a reasonable opportunity to state the parties’ claim for relief and to point to the evidence which supports it. But if the opportunity is not taken, the Judge is not bound to set out on a search for supportive evidence to support a claim which the party has failed to articulate intelligibly. Gaudron J was correct in holding that there was no denial of natural justice.”
These observations have been applied in the Workers Compensation Commission (see for example, Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2 at [208]; Carter v Star Track Express Pty Ltd [2015] NSWWCCPD 60 at [34] and in the Personal Injury Commission particularly when the material is extensive, and the parties are on notice (Sara v G & SSara Pty Ltd [2021] NSWPIC 286). The principle is otherwise consistent with the objects of the Personal Injury Commission Act 2020 which provide that the Commission is to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible” (section 3, Personal Injury Commission Act 2020).

EVIDENCE

Documentary evidence

The following documents are in evidence before the Commission and considered in making the determination:

(a)     the Application and attached documents;
(b)     Reply and attached documents, and
(c)     applicant’s Application to Admit Late Documents (AALD) dated 12 October 2021.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant’s accepted lumbar injury has resolved

There is no issue the applicant suffered a long history of pre-injury lower back pain. The respondent’s contention is that the accepted injury on 8 January 2010 was relatively minor and the three spinal surgeries which the applicant has undergone were not necessitated by that injury.
The applicant brought prior proceedings concerning this injury which led to an award in her favour for the payment of weekly benefits for a closed period together with some medical expenses. The respondent’s Section 78 Notice dated 13 October 2020 alleges the applicant had recovered from her lumbar spine injury no later than 18 July 2011, which is when she was examined by Dr Powell, independent medical examiner (IME) on 15 July 2011.
It should, however, be noted that the respondent paid the applicant weekly payments of compensation until approximately 2012.
The question for determination is whether the effect of this injury, which was accepted by the respondent, has passed and indeed had passed by mid-2011 when the applicant was examined by Dr Powell, IME for the respondent. In examining this issue, it is necessary to deal not only with the applicant'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.
In his report, Dr Powell noted the mechanism of the injury at issue. He had a history concerning the prior lumbar condition as follows:
“She has had back pain since around 2001. At that time, she had a partner who was studying osteopathy and undertook massage and manipulation of her back as a preventative measure but during this, she developed severe low back pain with radiation to her buttocks and legs, particularly to the left side.
The pain was difficult to control and she was subsequently assessed and continued management through the pain clinic at Prince of Wales Hospital.”
After a year or so, there was some improvement in her overall pain. She continued to attend the clinic on a regular basis, mainly for check-up but also because of continuing fluctuating pains and her continued use of medication to help control this. This continued up until the time of her work incident. Dr Powell was then asked about his views regarding the nature of the applicant’s injury:
“If you consider the worker suffered an injury, please explain what actual pathology and diagnosable condition arose on 8 January 2010, and how that pathology is different from the condition prior to 8 January 2010.
As indicated above, there is no indication that a specific injury has occurred.
Ms Elliot has developed symptoms of pain in a long history of back pain. This is likely to arise from multiple areas of soft tissues in the back such as muscles, ligaments and supporting areas around joints and discs in the back of a non-specific nature as she has adopted a bent position, done twisting and so on through the course of the day and was already primed due to a long history of back pain and early degenerative change
occurring within the discs of the lumbar spine.”
When specifically asked whether the relevant injury is of the same or similar nature to the complaints of back pain between 2001 and 2010, Dr Powell opined “The work event is most likely an episode along a long history of non-specific musculoskeletal pain and it just happened to occur while she was working.” Dr Powell also stated:

“Whilst her employment has been a contributing factor to the development of symptoms at the time that these were aggravated in the low back, it is not responsible for her overall condition, these being contributed to by her previous history of widespread back pain, her bodyweight and the subsequent changes of enduring chronic pain…
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.
Symptoms however are somewhat more difficult to determine. 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 more around the broader pain.”

An examination of the applicant’s general practitioner records reveals that as early as January 2001, the applicant was diagnosed with disc pathology (Reply– hereafter “R” - 38). At that time the applicant was prescribed Valium, Celebrex and Endep. Later that year, the applicant was first prescribed morphine for her back pain.
An entry on 6 November 2003 reveals the applicant had already commenced treatment with the pain clinic at that time. The entry relevantly regards:
“patient has been under the care of the pain team and Rr Russell for back pain and is currently on 30mg of MS Contin mane and 20mg of MS Contin nocte. needing more scripts.”

The clinical records disclose that by November 2004, the applicant’s back pain was sufficiently serious that she was taking six Valium per day. She was advised to stop taking the medication and to deal with her back pain via the pain clinic and with physiotherapy. In 2005, she was still being prescribed MS Contin and Mobic. On 1 September 2005, the general practitioner records reveal the following relevant entry:

“Thursday 25 august - went to lift up what was thought to be a plastic stanchion – turned out to be steel and heavier – hurt lower back, R side groin and down back L thigh - painful that day - reported injury
by now has improved a lot with no special treatment
usual R groin worsened with injury, painful despite medication, though usually controlled by meds
back of L thigh pain still worrying her and intermittent
has not had any treatment fort this acute injury- hasn't been to physic for Pilates - to do so….
MOBILITY PARKING FORM FILLED IN”

In February 2006, the applicant again presented to her general practitioner, who noted she suffered a prolapsed disc, was on multiple pain killers and was “getting low back pain, leg pain and groin pain.” Another entry in May 2006 revealed a “back flare up” with a bone scan and MRI booked. In June 2006 the applicant was booked in for lumbar spinal block injections. The entry on 1 Jun e2006 also recorded pain in the applicant’s neck, with a history of “prolapse noted previously… – to do exercises.”
By September 2006, the applicant had undergone a workplace assessment to modify her work station to accommodate her restrictions with her low back. She was then absent from work owing to her back pain for one month (R77). On 30 September 2006, the applicant’s general practitioner recorded:
“worsening of pain ’agony’ can’t sleep or get comfortable
went to casualty last week
pain lower back rad groin also inner aspect l foot
appt for pain clinic brought forward.
has had spinal block in past
currently on ms contin 40 bd
and also ordine 40 bd breakthrough
also val/um 10mg tds
and? deptran 10 mg . not sure of dose
no sensory changes or loss of sensation
Examination:
distressed
difficulty walking
tearful
rorn markedly limited
slr 10 bilat
back lower back tender , marked muscle spasm with paravertebral tenderness
neuro
knee present bilat
equal
sensation intact
ankle reflexes diffic to elicit
Management:
pain Management:
disc with paul who knows her well
decision not to give pethidine
tramal has not worked in past
plan inc ms contin to 50 mg bd
coni breakthrough ordine
cont valium
add in allegron 25mg 3 nocte
letter written . if worse. if sensory changes to casualty, hopefully admission for pain mx”
The applicant had further spinal blocks on 17 October 2006 (R78). On 4 November 2006, the following GP entry was recorded:
“Been to pow a+e after spinal block rpah a+re before spinal block given endone and
Nurofen
Due to see pain clinic on tuesday but made bed on tuesday - painful back since - been on 50mg ms contin and 30mg breakthrough x 2
Taking 160mg daily at present -to increase ms contin short=term to 60mg
Wants inj - pethidine io0mg/2ml stat+ promethazine 50mg!2ml both deltoids-to take tax!
Home”

The applicant requested referral to a surgeon for her ongoing back problems in November 2006. She continued to attend her general practitioner throughout 2007 complaining of back problems. In February 2007 it was recorded she was absent from work owing to back pain.
On 27 March 2007, the applicant attended her general practitioner against a background of having been struck on the right side in a motor vehicle accident, the main problem from which was pain in her left lower back. In June of that year, it was reported the applicant was attending for a further nerve block at the Prince of Wales Hospital pain clinic. A consultation in August 2007 saw the applicant’s dosage of MS Contin increase.
A lumbar spine MRI of 30 April 2007 reported the following pathological findings:
“There is no significant abnormality at T11/12, T12/01, L1/2, L2/3, and L3/4 levels.
At L4/5, there is disc desiccation and mild central posterior focal disc protrusion with associated annular tear. This indents the thecal sac, but is not causing central canal or foraminal stenosis.
At L5/S1, there is minimal Grade 1 retrolisthesis of L5 and S1. They are associated to degenerative changes at the facet joints. There is very mild broad posterior disc herniation. There is no associated central canal or foraminal stenosis.
The visualised portion of the spinal cord and conus medullaris are normal. The conus ends normally at L1 level. The cauda equina have a normal appearance.
Comment:
L4/5 annular tear and mild focal disc herniation. No evidence of S1 root compromised or central canal stenosis”.
On 19 January 2008, the applicant attended her GP complaining of tenderness in the lumbar spine with limited movements secondary to pain against the following background:
“Injury at work yesterday- slipped on newly polished floors. last day of work yesterday.
Did not fall over. Stretched regs apart and twisted and skidded
Lower back initially sore and also pains down legs.
Stiffness increased today.
Now constant aching.
Has history of old back injury and pain. Prescriptions printed.”

The applicant’s symptoms after this fall persisted into February 2008 and improved over the ensuing months. However, in May 2008 there were still complaints of back pain which continued through July of that year when the applicant advised she was going to try swimming for her back pain.
The applicant’s complaints of back pain continued. In September 2008 she hurt her lower back while vacuuming at home and the pain worsened to the point she requested pethidine. There were further complaints of back pain over the course of 2008, and on 30 December 2008, the following entry was made:
“went to emergency dept powh - last thursday - as severe pain - given pethidine 100 and promethazine 50 - seen by pain clinic on thursday - increased rns contln to 60mg tds instead of bd
then on 28/12/2008 - pethidine 100. tramal 100, largactil 25 - by after hours
currently on:
ms contin 60mg tds
ordine 20mg qid
neurontin 800mg tds
mobic 15 daily
acute exacerbation brought on by changing wardrobe on sunday prior, then got under bed to get xmas presents out on tuesday - back pain got worse after that- did not get to xmas!
Examination Notes
very limited by pain in across lumbar spine ail movements - muscle spasm notable particularly on L paravertebral”

At [239] of the Application is a report of Dr Thomas Russell dated 27 January 2009, approximately one year before the injury in issue. That report relevantly provides as follows:
“She was recently admitted to hospital for five days for an exacerbation of her back pain. During this admission, her MS Contin was increased to 60 mg tds. and breakthrough pain was managed with hydromorphone 6 mg and subcutaneous morphine 30 mg pm. She found the subcutaneous morphine to be most effective in relieving pain symptoms during this admission and found that the hydromorphone made her feel very nauseated.
Since discharge, she has reduced the MS Contin back down to 60 mg twice a day. She is also taking Lyrica 150 mg t.d.s., duloxetine 60 mg at night and Ordine 20-30 mg usually twice daily as required. She also admits to taking 100 mg of pethidine subcutaneously using a supply she obtains from a general practitioner on the North Shore. She was 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.
She has just started a new full-time job working as a project manager for Franklins. She likes this job but is worried that she might lose the job if the pain gets worse and she needs more time off work. Her concerns are particularly amplified due to current uncertainty regarding the economic climate.
Shayne thinks that her pain is gradually getting worse and is often now 10/10. The location of pain varies and includes the lower back, the groin, the insides of both legs and feet. It varies from a severe ache to burning in nature”.
On 28 January 2009, after the applicant had commenced employment with the respondent, she attended her general practitioner (GP) and noted her chronic low back pain had been worsened by standing in a meeting and was “unbearable.” She presented not only with lumbar pain but burning feelings in both feet (described as “not new”) and bilateral groin pain. In June 2009, the applicant told her GP she was having a lot of back spasms during long periods of standing at work and also after a long car trip to Yass. At that time, she was taking pethidine from time to time together with her usual pain killing medication.

On 16 July 1009, the applicant consulted her GP and advised she had undertaken five trips to hospital for her back and had received a spinal block but could not take time off work. The pain clinic at Prince of Wales Hospital had written to the GP on 23 July 2009 advising of a recent admission for severe pain and that the applicant was at that time taking MS Contin 60 mg, Lyrica 300 mg, Duloxetine 60 mg, Ordine 20-30 mg and occasional pethidine. The notes indicate the applicant was also still taking Valium.
In August 2009, the applicant underwent a further spinal block. In September 2009, she suffered a flare up of back pain with radiation after sitting on the floor on the preceding Friday night. There were further consultations for pain killing medication up to 31 January 2009.
These entries clearly demonstrate the applicant had significant and debilitating symptoms in her lumbar spine from 2001 until the injury at issue.
The applicant dealt with her prior injury in her initial statement dated 5 February 2013 in which she stated:
“5.     I sustained a prior injury to my lower back in or about 1987 whilst in the course of employment with Sport Fashions Pty Ltd. I was employed as a house model and sustained an injury to my lower back whilst lifting a bulk fabric. I made a complete recovery from this injury and returned to full-time work and recreational activities including playing squash, horse riding (show jumping) and skiing as well as other sports.
6.      In late 2000, I developed pain in the rear outside of my left thigh. This was following a manipulation performed by my former fiancé who was an osteopath. I was diagnosed in January 2001 as suffering prolapsed discs in my lower spine. This resulted in pain in my left thigh and left leg with some lower back pain.
7.      As a consequence of this injury I was off work for about six or seven weeks from my employment with AMP and then returned to full-time work. I attended my local general practitioner, Dr Paul Russell for treatment; however, the main care was undertaken at the pain clinic at the Prince of Wales Hospital. I was under the care of Dr Khor. I underwent a nerve block injection into my lumbar spine and was prescribed a number of analgesics and pain relief medication.
8.      After the initial injury, it took approximately 18 months to find the most appropriate medication to treat my pain. The dominant pain that I felt at this time was in the rear of my left leg/ thigh and not particularly the lower back. I was able to continue and then complete my university degree. I was also able to return to my work on a full-time basis and performed all duties required of me.
9.      I continue to attend the Prince of Wales Hospital Pain Clinic for check-ups and if I had sustained any aggravation of the predominant leg pain. I underwent some nerve block injections and my medication was varied from time to time.
10.    At the time of the most recent injury, I was being prescribed MS Contin twice per day and Lyrica four times per day.
11.    I was able to work full time in my employment at Franklins Pty Ltd as a contracts manager without difficulty and I remained so employed from January 2009 until the current incident on 8 January 2010”.
The applicant's description of her prior condition confirms she was taking heavy doses of strong painkilling medication in the form of OxyContin twice per day and Lyrica four times per day. Notwithstanding her statement evidence to the contrary, in my view it is inconsistent with the prescription and administration of such strong painkilling medication to state the applicant's low back symptoms immediately before the injury on 8 January 2010 were minor.
Likewise, in my view it is unlikely on balance that a patient would be the subject of ongoing care in a pain clinic setting unless their symptoms were both chronic and serious. It is apparent from the GP records that the applicant was not carrying out her work with the respondent “without difficulty.” She had made multiple hospital visits since commencing with the respondent and was suffering almost regular flare ups of serious low back pain. For example, in September 2009, the applicant advised the Neutral Bay Medical Centre where she also attended from time to time that had required lumbar injection in August 2009 and that after the injection she had suffered a “muscle tear” in her back which she said led to different pain o that which she’d previously experienced.
In his first report dated 23 April 2020, IME Dr Bodel took a history concerning the prior back injury of “she has had a previous injury to the lower part of the back at the age of 19. This was a work-related matter and it settled with physiotherapy”. Dr Bodel’s history in that regard is plainly incorrect.
In a second report dated 30 June 2021, Dr Bodel provided the following past medical history:
“This lady has had a long history of past problems with her back.
We are aware that there was a previous claim for an injury at the age of 19 which was a work-related matter but in addition to that she has had significant recurrences of back pain over the years.
She has at times, prior to the injury in January 2010 been under the care of Dr Khor, a pain management specialist at the Prince of Wales Hospital because of ‘lower back pain and left lower lumbar pain’. Prior to the initial onset of pain she had enjoyed an active lifestyle and she had regained those activities prior to the injury in January 2021.
I have also had recorded that she had the severe back pain episode at the age of 19 when working as an ‘in-house model for a fashion house’. There was the workers’ compensation claim for that and that issue settled with conservative care.
I also note that in about the year 2000, ten years prior to the injury under review she had undergone some osteopathic treatment from her then fiancé. The main treatment for the chronic pain has been with the pain specialist, Dr Khor. She continued to have back pain and left-sided sciatica although it was manageable although it flared up from time to time.
At times, particularly on 18 March 2002 she was seen at the Royal Prince Alfred Hospital Accident and Emergency Centre because of ‘chronic lower back pain due to L4/5 disc prolapse’. Again, she was referred back to Dr Khor at the Prince of Wales.
She later had MRI scans and was also referred to Dr Loefler, an orthopaedic surgeon who tried to assist her to ‘weaning off her medication’ and also advised against surgery. ‘In 2008, she had a fall further aggravating the lower part of the back with some referred pain down her leg particular the left leg to the feet and there is also a mention from her former general practitioner, Dr Paul Russell, and she was again seen at the pain management clinic at the Prince of Wales Hospital in January 2009 because of her continuing back pain and left leg pain. That was at about a time that she began the full-time work as a project manager with Franklins as I have indicated above.
There was also an entry in the medical records on 28 July 2009 indicating that there had been a number of admissions to accident and emergency because of recurring pain and she had had ‘continuing treatments including epidural injections’. She was also requesting ‘injectable morphine’.
Clearly, this lady has had continuing back pain for almost a decade prior to the injury which was made much worse by the event under review”.
The event in issue as described by Dr Bodel was the applicant undertaking a site survey at a supermarket which was undergoing refurbishment. The applicant was required to take a lot of measurements which involved a great deal of bending, lifting and moving of stock in order to undertake her work over the course of several days. On the second day, the applicant began to develop increasing lower back pain, left-sided groin pain and right hip and right thigh pain as well as left hip and thigh pain. According to Dr Bodel, the pain was so severe that she could not complete that particular day’s work.
The applicant reported the injury to her employer, then went home and attended Prince of Wales Hospital in Randwick because of the severity of her back pain, with associated minimal buttock and thigh pain at that time. She was then discharged to the care of her GP and eventually had some scans in or about 2013, at which time an MRI showed evidence of a disc protrusion at the lumbosacral junction.
The second history provided to Dr Bodel broadly accords with that contained in the applicant’s statement of 5 February 2013. In her statement, the applicant also notes that in February 2010 she mentioned to Dr Khor, pain management specialist she was also suffering from pain in her neck. It was her belief that the lower back pain was overshadowing her neck pain.
On 11 May 2010, the applicant was examined by Dr Gliksman, IME for the respondent. In that report, Dr Gliksman accepted that the applicant’s injury was an aggravation to pre-existing problems with her lumbar spine.
The applicant also underwent a CT scan on 23 December 2000 both her cervical spine and lumbar spine. Relevantly to the lumbar spine injury, the findings were:
“At L3/4, no disc lesion is seen. The spinal canal and intervertebral foramina are widely patent. There is mild narrowing of the facet joints posteriorly with posterior osteophyte formation.
At L4/5, there is left paracentral posterior disc protrusion seen on images 53 and 54 and sheet two. It may be involvement of the left L5 nerve root in the lateral recess. The L4 root exits normally. There is mild narrowing of the facet joints.
At L5/S1, no disc lesion is seen. The spinal canal and intervertebral foramina appear adequate. There is mild narrowing of the facet joints”.
The difficulty for the applicant in this matter is, in my opinion, the prolonged and serious pathological changes in her lumbar spine which were present before the incident in January 2010.
An examination of the clinical records reveals consistent visits to her GP, specialist and the pain clinic to deal with her lumbar spine from at least year 2000. Although the incident in January 2010 was, in my opinion, an aggravation of the pre-existing condition, it cannot be said the pre-existing condition was at that time asymptomatic. Rather, the applicant was from time to time having regular treatment through not only her GP but the pain clinic. She was also on a serious regime of extremely strong painkilling medication, including but not limited to opioids. Such medication is not given lightly, neither is multidisciplinary pain management treatment.
In my view, the applicant 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.
In a report to the applicant’s solicitors dated 5 October 2021, treating surgeon Dr Donellan said, when asked about the cause of the applicant’s low back pain:
“Shane [sic] Elliott initially suffered a disc injury to her lumbar spine in 2001. This was a result of chiropractic manipulation for some myofascial pain. She developed low back pain and some pain in the left thigh and left leg. She needed to take six to seven weeks off to recover from this injury. She underwent a steroid injection and oral medication and was under the care of the Pain Clinic at Prince of Wales Hospital during this time. She then returned to work, but she required ongoing care from the Pain Clinic at Prince of Wales Hospital and never really was able to wean herself off her MS Contin and Lyrica.
However, she was able to maintain employment until an incident on 8 January 2010. She was working as a shop assistant in the Pennant Hills Franklins store. This involved surveying and measuring the whole store. She had to do a lot of bending and twisting and repetitive movements in the course of this job. While she was at work in 2010 she started to develop low back pain and then she started to get pain down her left leg. She actually left work and the pain steadily increased to the point where she had to be taken by ambulance to Prince of Wales Hospital. She never really recovered from this injury.
She had ongoing neck and back pain as well as left sciatica. She first saw me on 22 February 2013. My diagnosis was that she had had an exacerbation of her injury from 2001.
That is, I suspect she injured her disc in 2001 and then made a reasonable recovery from that injury.
She then had a second injury to the same disc in 2010 which was the injury that stopped her from rejoining the workforce. I documented that most of her pain was coming from the L4/5 disc. After she failed conservative measures I actually performed L4/5 anterior lumbar interbody fusion in late 2013. She did reasonably well from that procedure. She was able to decrease her opioid requirement significantly after that operation. She never completely got off opioid analgesia, however.”
The difficulty with Dr Donellan’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 applicant’s lower back. Having examined all of the treating and medico-legal material, I am not satisfied on a common-sense evaluation of the causal chain that the applicant 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.
In his latest report dated 5 October 2021, Dr Donellan described the nature of the applicant’s injury as follows:
“She first saw me on 22 February 2013. My diagnosis was that she had had an exacerbation of her injury from 2001.
That is, I suspect she injured her disc in 2001 and then made a reasonable recovery from that injury. She then had a second injury to the same disc in 2010 which was the injury that stopped her from re-joining the workforce. I documented that most of her pain was coming from the L4/5 disc. After she failed conservative measures I actually performed L4/5 anterior lumbar interbody fusion in late 2013. She did reasonably well from that procedure. She was able to decrease her opioid requirement significantly after that operation. She never completely got off opioid analgesia, however.”

With respect to Dr Donellan, the clinical picture before the incident at issue does not reveal the applicant as having made a reasonable recovery from her earlier injury. Rather, the records disclose a consistent, longstanding pattern of lumbar spine issues requiring significant non-surgical intervention over the course of a decade. In my view, the clinical picture is supportive of Dr Millons’ opinion in his report dated 28 September 2020 in which he comprehensively reviewed the clinical records and noted:
“The work performed on 8 January 2010 may have caused some temporary aggravation of some degenerate changes in her back but I do not believe it particularly influenced the course that followed or the need for her to undergo her three spinal fusions performed on somewhat empirical grounds.”

Whether the applicant’s need for lumbar surgery was brought about by the injury in issue

It follows from the above findings surrounding the duration of the applicant’s lumbar injury that I do not accept the requirement for her surgery was as a result of the workplace injury. Dr Donellan performed surgery on the very lumbar discs which had long standing pathological changes to them. It is unclear, in my view, whether the requirement for the surgery was brought about by the injury at issue or indeed whether the injury brought forward the need for surgery. That is a matter for which the applicant bears the onus. Moreover, it is unclear on what basis Dr Donellan believes the applicant “made a reasonable recovery” from the earlier disc injury, given she was still regularly taking opioid medication and was still having regular visits to both her general practitioner, the pain clinic and to the emergency department in the months leading up to the relevant injury.
As such, I am not satisfied on the balance of probabilities, despite the report of Dr Donellan that the need for the applicant’s spinal surgery was brought about by the injury in issue. Rather, my view is that her pre-existing problems are the reason for the need for that surgery.
As has been noted, for the applicant to succeed she must demonstrate that the requirement for the surgeries which have been carried out to her lumbar spine are “as a result of" the injury in issue. Examining issues of causation in relation to medical expenses sometimes leads to confusion created by the fact at section 60 liability for medical expenses also has a requirement that treatment be reasonably necessary. In this matter, the medical requirement for surgery was not the subject of challenge at the hearing.
The principles of causation and those relating to the concept of reasonable necessity are different and must be kept distinct in claims for the cost of medical expenses. It is frequently a separation which is lost, or the differing principles misunderstood. If a worker sustains an injury as defined in section 4 of the Workers Compensation Act 1987 (the 1987 Act) which can be said, for example, to be an aggravation of osteoarthritis in the hip joint and associated with a level of pain one week after the injury, there would be an indicator of the need for a hip replacement which at that time would result from the injury. However, if the evidence established that all symptoms would resolve completely by their own accord in another week or so, hip replacement at that one week point would not be “reasonably necessary" as a result of the injury.
That is to say, a view may be formed that a worker who has aggravated an underlying condition as a result of the work injury may need foreshadowed medical treatment. By the same token, the facts of the matter may lead to a finding that without the injury that surgery would have come about in any event.

The question which is relevant, and highlights the distinction between the “mere but for” and “common sense” causation is: 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 a 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?
In Jenkins v State of Tasmania [2012] TASSC 22 (Jenkins), a worker was injured in a work-related motor vehicle accident the subject of a claim for permanent impairment. There is no question he suffered an impairment at the time of assessment, however, in order to establish an entitlement to compensation the worker had to establish the impairment resulted from the injury suffered in the motor accident. The worker had undergone an intervening medical procedure which called into question the causal link between the original injury and the agreed impairment.
In Jenkins, the original injury from which the worker suffered was a contusion to the cervical spine cord at C4/5. He also had pre-existing but asymptomatic cervical stenosis. The worker’s treating surgeon indicated that in the event of further trauma, his stenosis constituted a risk of further injury and therefore recommended a C3-C7 cervical laminoplasty. Following the surgery, the worker retained a degree of impairment, however, an MRI taken post-surgery showed the pathological change caused by the original injury had passed.
In determining whether the worker’s impairment resulted from the injury at issue, the Commission was required to ask whether the surgical procedure resulted from the injury. Relevantly, the cervical cord contusion healed, and the worker’s own treating surgeon indicated the correction of the canal stenosis was recommended regardless of the contusion already showing signs of healing. The Commission at first instance found the requirement for the surgery was brought about by the surgeon’s desire to protect the worker from the risk of catastrophic further spinal cord injury in the event of further trauma, rather than to address the work-related injury.

On appeal, Tennent J in the Tasmanian Supreme Court discussed the relevant law regarding “results from” in the context of treatment and noted if there were multiple reasons for surgery and the workplace issue was one of them, that was sufficient to establish a relevant causal link between the injury and the surgery. His Honour, in finding the Commissioner at first instance had applied the correct principles, noted that findings in relation to causation are findings of fact. His Honour held the finding at first instance was open to the Commissioner, and at [25] rejected the notion that even if the worker may not have had surgery had he not suffered injury at issue, such a set of circumstances does not of itself establish causation, as the surgery was not carried out to correct the injury, but rather a pre-existing condition which only came to light after the work-related accident.
In this matter, in my view the applicant's position is even more tenuous than in Jenkins. That is because, the pre-existing condition from which the applicant was both known before the work-related injury and were very much symptomatic in the immediate lead up to the incident at issue. It is also unclear, having examined the treating and radiological material, whether the incident at issue caused any radiological change which brought about the requirement for surgery. Absent evidence which satisfied this question, in my view the applicant cannot be said to have 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.
In TaxisCombined Services(Victoria)Pty Ltd v Schokman [2014] NSWWCCPD 18, the worker who was a taxi driver was assaulted in the course of his employment. He suffered extensive facial injuries during the assault, which eventually resulted in the loss of four teeth, requiring treatment with a full unit fixed bridge. At the time of his treatment, it was noted that the applicant had pre-existing periodontitis unrelated to the assault. In 2012, Mr Schokman’s bridge broke. In examining the worker in relation to this issue, a further complication of periimplantitis was identified, requiring treatment. The insurer denied liability for treatment related to the periimplantitis and periodontitis, in part due to Mr Schokman’s pre-existing periodontitis, as well as his poor oral hygiene and history of smoking.
Roche DP confirmed the Arbitrator’s decision finding that treatment was reasonably necessary as a result of the injury. The Deputy President stated on causation:
“It follows that, even if it were accepted that that the periimplantitis was ‘caused’ (in the sense of having been materially contributed to) by the non-work factors listed by Dr Bowen, that would not prevent to finding that, as a matter of common sense, the need for the proposed treatment has a reason ‘as a result of’ the injury. That is because, as Dr Roessler explained, the periimplantitis is ‘only there because Mr Schokman has implants’. This is not a matter of merely saying that ‘but for’ the presence of the implants Mr Schokman would not have the periimplantitis, for that is undoubtedly true. It is a matter of concluding that, as a matter of common sense, the injury was a material cause of the need for the proposed treatment (because it pulled about the need for the implants), even if other factors were also present that may have also contributed to that need”. (at [54])
In my view, the difference in this matter is that the applicant’s pre-existing condition was plainly serious and, on balance the evidence discloses that she would have required the three rounds of surgery in any event. On balance, I prefer the view of Dr Millons, IME for the respondent to that of Dr Bodel. Although Dr Bodel corrects the record in relation to the history provided to him in his second report, he nevertheless does not provide sufficiently persuasive reasoning as to why the requirement for surgery is related to the injury at issue. Dr Powell, in a report dated 15 July 2011 provides a similar finding to Dr Millons.
Dr Powell had a correct history regarding the applicant’s pre-existing condition and having examined all of the post injury radiological investigations determined “she developed an increase of lower back symptoms when undertaking work that involved bending and twisting and this has led to an escalation and broadening scope of her pain that she has had difficulty in managing”.
When directly asked whether the applicant’s pathology was different to that which she suffered before the injury on 8 January 2010, Dr Powell stated:
“Ms Elliot has developed symptoms of pain in a long history of back pain. This is likely to arise from multiple areas of soft tissue in the back such as muscles, ligaments and supporting areas around joints and discs in the back of a non-specific nature if she has adopted a bent position, prolonged twisting and so on through the course of the day and was already primed due to a long history of back pain and early degenerative change occurring within the discs on the lumbar spine”.
Dr Powell described the applicant’s difficulties as those of an overriding pain syndrome involving multiple areas of her body, and although that this had developed after January 2010, the overriding factor was a previous tendency towards uncontrolled pain syndrome.
Dr Donellan, treating surgeon noted the applicant suffered an annular tear at L4/5 in an MRI taken in May 2013, consistent with the findings after the workplace accident in 2010. However, that pathology is also consistent with the findings of an MRI taken on 3 May 2007 where, at L4/5 there was disc desiccation and mild central posterior focal disc protrusion with an associated annular tear indenting the thecal sac. In other words, in 2007 there was discogenic pain consistent with that for which the applicant underwent surgery after the 2010 injury.
For these reasons, I do not believe the applicant has satisfied 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 spine surgery at the hands of Dr Donellan. It follows that, having found the effects of the 2010 injury had passed before the surgeries undertaken by Dr Donellan, the requirement for that surgery cannot be said to have resulted from the workplace injury.

Whether the applicant sustained injury to her cervical spine

I am satisfied the applicant suffered cervical spine injury in the January 2010 incident. Although there was no immediate complaint of cervical spine pain after the incident at issue, I accept the very serious lumbar symptoms masked her neck pain for some time. In a report dated 17 June 2010, Dr Grant IME for the respondent recorded the applicant having suffered severe pain in her neck since the injury with associated altered sensation in her upper limbs. Unlike the clinical picture with the applicant’s lumbar spine, the records do not disclose a history of pre-existing cervical spine symptoms.
In her statement, the applicant describes the onset of neck symptoms as follows:
“In February 2010 I mentioned to Dr Khor that I had pain in my neck. Previously I had just noticed severe pain in my lumbar spine radiating up and down the whole spine. I believe the low back pain was overshadowing my neck pain. I had told my doctors about the neck pain but hey were more concerned with my back pain.”

I accept that evidence. There is nothing in the clinical picture which contradicts the applicant’s evidence surrounding the onset of her neck pain, nor is there anything to suggest a protracted history of cervical issues. I therefore accept a finding of injury to the cervical spine. I note, however, the applicant’s own IME Dr Low indicates a 6% whole person impairment for the cervical spine, and a claim is made for 5% whole person impairment to the lumbar spine. This being so, notwithstanding a finding of injury, the cervical spine, on the applicant’s own case it does not meet the threshold for whole person impairment, and in the context of the claim for permanent impairment, there will also be an award for the respondent with respect to that body system.
The respondent will, however, be ordered to pay the applicant’s reasonably necessary medical and treatment expenses with respect to the cervical spine injury.

Alleged gastrointestinal consequential condition

There is no doubt the applicant suffers a gastrointestinal condition. The issue is whether that condition was brought on by prolonged taking of strong painkilling and non-steroidal anti-inflammatory medication, and if so whether that need resulted from the injury at issue. It apparent from the material before the Commission is that the applicant was taking this very strong medication for many years before the injury in issue. The respondent argues through Dr Garvey, IME that the gastrointestinal condition is congenital in nature. The applicant relies on the report of Dr Greenberg, IME who finds a 6% whole person impairment. This impairment, however, is taken against the following history:
“Ms Elliot was employed by Franklins and injured herself in January 2010. She was employed as a contract manager and her responsibilities included the operating function of the Franklin’s stores. On the day of Ms Elliot’s injury, her work involved a lot of lifting, climbing, moving stock, bending and measuring etc as has been documented previously.
It is my understanding that Ms Elliot sustained an injury to her lumbar spine and has been unable to work as a consequence.
Ms Elliot has required several spinal operations that has been addressed in previous reports.
Ms Elliot has been taking medication since 2010 up to December 2019 when I interviewed her.
She will require ongoing medication for pain relief.
Ms Elliot said that the medications have had a particularly profound effect on her and she has found that the adverse events have been extremely difficult to deal with.
Ms Elliot: ‘the medications have affected my ability to have think normally and function. I have tried various combinations of the various medications as I needed pain relief otherwise I could not cope with the pain from my spinal injury. More recently I have been trying to wean myself off the drugs as much as possible and take my medication a little more intermittently rather than on a regular basis’.
Be that as it may, Ms Elliot said she still relies very much on the opioids to get adequate pain relief and still needs drugs such as Neurontin for the ongoing neuropathic pain.”
The history relied on by Dr Greenberg is manifestly inadequate and incomplete. It is plain from an examination of the clinical records that the applicant has been taking strong pain killing medication for a decade before the injury at issue. This being so, I am not satisfied on the balance of probabilities that the applicant’s gastrointestinal problems relate to the injury in issue. Dr Greenberg’s conclusion that “long-term uses of analgesics and antidepressants are recognised to alter bowel motility and have significant side effects. The symptoms described are consistent with the history and the diagnosis” is, owing to the incomplete history he received, unreliable. As a result, I do not consider the applicant has discharged her onus of proof in establishing a causal link between the gastrointestinal condition and the injury at issue.

Consequential conditions to the shoulders, hips and knees

The applicant’s IME Dr Low rules out a connection between the applicant’s shoulder conditions and the work injury. Dr Bodel, however, finds there is such an impairment. He also finds the applicant’s hip, sacro-iliac and knee pathology “is consequential upon the abnormal gait pattern associated with the original disc injury at the lumbosacral junction.” I do not accept that opinion. Having found the effects of the applicant’s injury have long been superseded by the effects of the pre-existing condition and noting the lengthy history of pre-existing back issues, including occasions where the applicant could barely walk and required hospitalisation together with the prescription of powerful pain killers and spinal injections, I am not satisfied on a common-sense basis that the injury at issue has caused the consequential conditions claimed. Rather, I am of the view they represent conditions which have arisen from the applicant’s pre-existing lumbar problems and the effect that condition has had on her.

SUMMARY

For these reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2021] NSWPIC 513

9 December 2021