Farrell v Specialist Diagnostic Services Pty Limited t/as Laverty Pathology

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Farrell v Specialist Diagnostic Services Pty Limited t/as Laverty Pathology [2021] NSWPIC 191
APPLICANT:	Debbie Farrell
RESPONDENT:	Specialist Diagnostic Services Pty Limited t/as Laverty Pathology
MEMBER:	Kerry Haddock
DATE OF DECISION:	18 June 2021
CATCHWORDS:	WORKERS COMPENSATION- The applicant claimed to have sustained injury to her lumbar spine as a result of the nature and conditions of employment as a pathology collector; claim for weekly benefits and medical expenses; the applicant initially ceased work due to a psychological condition; lack of contemporaneous report of work-related injury to the lumbar spine; lack of evidence of causation from treating practitioners; application of section 4(b)(ii) of the 1987 Act; AV v AW applied; Held- the applicant has not met the onus of establishing injury pursuant to section 4 of the 1987 Act; award for the respondent.
DETERMINATIONS MADE:	1. That there is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Debbie Farrell (Ms Farrell) was employed by the respondent, Specialist Diagnostic Services Pty Limited trading as Laverty Pathology as a pathology collector.

Ms Farrell claims to have sustained injury to her lumbar spine as a result of the nature and conditions of her employment. The injury is claimed to be due to the aggravation of a disease with the deemed date of 23 March 2020.

The applicant has completed two Worker’s Injury Claim Forms (the Claim Forms). One is undated and the other is dated 31 March 2020, although it appears they may have been completed at the same time.

The undated Claim Form states that the date of injury was 23 March 2020. The applicant stated that when she was injured, she was performing repetitive lifting of patients onto a high bed and repetitive squatting to use a printer. She felt “extreme lumbar spine pain as a result of repetitive lifting” and “bullying/harassment once requests made to change workplace”. Her injuries were described as lumbar spine injury and psychiatric injury.

The Claim Form dated 31 March 2020 states that the applicant had had ongoing lower back pain since April 2019. She had sustained “exacerbation of lumbar pain due to poor work ergonomics and psychological conditions”. The Claim Form referred to depression, anxiety and stress. The injury was described as lower back/psychological injuries.

On 25 June 2020, the respondent’s workers’ compensation insurer, Healius Limited (Healius) issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Healius disputed liability for both the injury to the applicant’s lower back and psychological injury. It disputed that Ms Farrell had sustained injury to her lower back to which her employment was the main contributing factor, as required by section 4(b) of the Workers Compensation Act 1987 (the 1987 Act). It also relied on section 9A of the 1987 Act, to the extent that it was necessary.

Healius also disputed that Ms Farrell had sustained a psychological injury, pursuant to section 4 of the 1987 Act and relied on a defence pursuant to section 11A of the Act, in that any such injury was wholly or predominantly caused by the respondent’s reasonable action with respect to performance appraisal, discipline, transfer and/or provision of employment benefits. Liability for payment of weekly benefits and medical expenses was therefore disputed.

On 10 August 2020, the applicant’s solicitors requested a review of the decision to dispute liability for injury to her lower back. There was no request for a review of the decision to dispute liability for psychological injury.

By notice dated 2 September 2020, Healius advised that it had reviewed its decision with respect to the claim for injury to the applicant’s lumbar spine (lower back). It maintained its decision to dispute liability.

The applicant lodged an Application to Resolve a Dispute (the Application) on 8 February 2021. She claimed that she sustained injury to her lumbar spine as a result of the nature and conditions of her employment. She claimed to have developed lower back pain, which gradually deteriorated over time, in or around 2019. As a result of the injury, she had required lumbar spine L4/L5 laminectomy and lumbar interbody fusion. The injury was pleaded as a disease, with deemed date of injury of 23 March 2020.

The Application claimed weekly benefits from 25 May 2020 ongoing, and medical expenses of $560.

The respondent lodged its Reply on 2 March 2021. In addition to the matters notified to the applicant on 25 June 2020, it sought leave to raise the degree of the applicant’s incapacity; that the applicant has at all times been capable of earning at least her pre-injury earnings in suitable employment, as defined in section 32A of the 1987 Act; and to dispute the applicant’s wage schedule.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) Whether the applicant has sustained injury arising out of or in the course of her employment, including injury in the nature of a disease, pursuant to section 4(b)(ii) of the 1987 Act;
(b)    Whether employment was a substantial contributing factor to any injury;
(c)    Whether employment was the main contributing factor to any disease injury;
(d)    The applicant’s capacity for work, and
(e)    Whether the surgery undergone by the applicant was reasonably necessary, and if, so, whether it was reasonably necessary as a result of the injury.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 5 May 2021.
Mr Tanner of counsel, instructed by Mr Dababneh, appeared for the applicant; and Mr Saul of counsel, instructed by Mr Thomas Murray, appeared for the respondent. Ms Farrell was present.

The name of the respondent was amended by consent to Specialist Diagnostic Services Pty Limited trading as Laverty Pathology.

The respondent sought leave pursuant to section 289A of the 1998 Act to raise the issue of the reasonable necessity of the surgery undergone by the applicant as a result of the alleged injury. The applicant did not object and leave was granted.

The applicant sought a general order for medical expenses pursuant to section 60 of the 1987 Act, should she be successful in her claim.

The parties were unable to agree on the applicant’s pre-injury average weekly earnings (PIAWE).

The respondent was directed to provide the applicant with her pay records for the period from 23 March 2019 to 22 March 2020, on or before 12 May 2021.

The parties were directed to file an agreed wage schedule, or their respective wage schedules should they not be able to agree, on or before 19 May 2021.

The parties have agreed that the applicant’s PIAWE was $936.73 per week, and that any award in her favour would be made pursuant to section 37 of the 1987 Act, commencing on 17 July 2020. The maximum rate payable, should she be found to have no work capacity, would be $749.38 per week.

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

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

(a)    The Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 11 March 2021, filed by the applicant and admitted by consent, and
(d)    Application to Admit Late Documents dated 28 April 2021, filed by the respondent and admitted by consent.

Oral Evidence

There was no application by either party to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Debbie Farrell

The applicant’s first statement is dated 28 April 2020.

Ms Farrell stated that she had been employed by the respondent since 11 October 2011. She was employed at the My Health Medical Centre (My Health) in Baulkham Hills Shopping Mall, but as a result of “the events” she was moved to the Merindah Road Medical Centre, Baulkham Hills (Merindah), and the Rouse Hill Medical Centre (Rouse Hill), but only for two weeks, before her WorkCover claim was lodged.

The applicant described My Health as extremely busy. She worked on her own, apart from three or four times over several years when a trainee would be sent to learn all the rooms. Ninety percent of her workload would be for blood tests. She also conducted ECG’s and swabs. There was “a fair bit of paperwork.”

It was not until about April 2019 that the applicant started to get a “few little niggles” in her back, and it started to worry her. Before that she might have had an extra busy day and felt a little sore but thought this was quite normal.

One day in April the applicant had what was like a bolt of lightning in her back and from that moment it seemed to get worse. She can’t remember exactly what she was doing when it happened. As she was quite busy, she just kept going and had a couple of Panadol. She may have had one or two days off after that. It was not until November 2019 that she “had pretty much all of the month off” due to pain. There were some days when she could not get out of bed.

The applicant’s boss, Kristy Donnelly (Area Coordinator) “would have been aware” of her back problems as she had time off for investigations and cortisone injections. The details and results were forwarded to Kristy. Apart from occasional enquiries as to her general health, no real assistance was offered. She continually let Kristy know she needed an extra person for a few hours at the busiest time. Kristy was always nice but didn’t seem able to offer assistance. Ms Farrell’s room was just known as a busy room.

When she took time off in November, the applicant was just resting. It was so bad that if she had to go anywhere she had to get her mother to take her. She had acupuncture and found the best balance with pain relief, with the help of her doctor.
The applicant went back to work on 2 December (2019). On that day she had a visit from Kristy and her boss, Capri Tuwhangai (Area Manager). They “just turned up”, which was a little unusual. She hadn’t seen them for about six months. They wanted to know how she had been doing and she let them know the pain killers were working well and she was doing fine.

Kristy mentioned that while the applicant was away, it had been noted that some of her WHS filing wasn’t up to date. They also mentioned that she had too much stock in her room and asked her to learn to forecast future demand and adjust stock levels accordingly. They never presented any set company standards to follow.

The applicant was also asked to take down photos of her grandchildren. They had been there for years without previous comment. She took them down but got “a bit teary”. They also mentioned that she did not display an official sign when she was on her lunch break. She told them she had never had one and asked if they could send her one. She received one two or three weeks later, and then used it. This seemed quite trivial. She thought as Healius had taken them over, there may be some new protocols.

The applicant thought it was strange that these points were brought up at all. It “sort of sent my alarm bells off”. Kristy asked if she would like to move to a quieter room, but Ms Farrell said she was coping, it was her first day back and everything was fine.

None of these issues was documented at the time, but when Kristy and Capri visited on 2 March 2020, the applicant was asked to sign a piece of paper, which she thinks was a Record of Discussion. They said they had forgotten to ask her to sign it and asked her to do so. She was “in tears and an absolute wreck”, so she did.

The applicant continued to work as normal. No one approached her with complaints. There was one patient who complained of being kept waiting, and she emailed Kristy about the incident, but does not think she received a reply.

On 2 March 2020, Kristy and Capri came to visit and informed her of two complaints from doctors about waiting times for blood tests. They said they were not at liberty to tell her who had complained. They had also had three emails from different patients. She asked for copies but never received them. She agreed that waiting times were sometimes long, but “it was getting to crazy levels of 35 to 40 patients a day without assistance”.

Kristy indicated that it might be time for a change, and they may have to move Ms Farrell to Merindah, starting the next day. She was feeling sick and crying, as she felt a total failure. This had come completely out of the blue. Merindah only operated for four hours a day, which would be a reduction in hours, but Kristy said she would work something out. The applicant left for the day.

For the rest of that week, the applicant did four hour shifts at Merindah. She discovered that the respondent was obliged to pay her if it couldn’t provide her contracted hours, and it did so. The applicant then began to work split shifts of four hours in the morning at Merindah from Monday to Friday; and 5.5 hours at Rouse Hill from Tuesday to Thursday. She often had to walk quite a distance to her car. She hated these shifts and they placed extra strain on her. She was exhausted at the end of each day.

On 20 March 2020 the applicant saw her doctor to obtain repeat prescriptions. She became teary as she told him of the shift changes, and he enquired why this had happened. He advised her to speak with Luke Powers [sic: Power], a lawyer, about this and the possibility of lodging a WorkCover claim, as he had been recommending for a while. He saw her monthly for pain medication and was concerned that continuing to work may make her back worse.

The applicant called Luke on 23 March 2020 and he wanted her to get the WorkCover certificate. Her doctor faxed it to Healius. She then left what had to be done with Luke.

The applicant’s last day at work was 23 March 2020. She had since been at home resting. She had been using crutches as she found it easier on her back. She had been doing this for about 12 months, although not at work. The room was so tiny she could manage. “Looking back”, it appears that as soon as they knew of the applicant’s back, they were possibly orchestrating things to either move her or make her leave her position.

As regards her back injury, Ms Farrell stated that from probably April 2019 it has been giving her problems. Kristy knew of them. There is an Incident Report, but it is more to do with reporting incidents with patients, and “they weren’t really for my situation”. It wasn’t really a particular incident but something that gradually came on, so it didn’t seem appropriate to use them. Kristy never suggested documenting the problem. The applicant thought she would have a cortisone injection and it would right itself, but it never did, and she just worked through it.

The applicant would occasionally get home from work with a sore back, but she put it down to a very busy day, and rested. She was on her feet all day, sitting continually to do paperwork and standing again, leaning over patients for procedures and helping people onto and off the examination bed. She put her back down to this at the time.

One day, “out of the blue it was like something shifted” in the applicant’s back and she caught her breath. She found out later she had two pinched nerves “and maybe a bone moved funnily on them or something”. She also found she had two bulging discs, which is why she needed surgery. At the time, she just gritted her teeth and continued with the day. It “would have been in April/early May”. She hates going to doctors so it was a while before she saw the doctor specifically about it.

In late 2019 or early 2020, the respondent installed a scanner, placed on the ground, in the Collection Room. Ms Farrell told Kristy that every time she saw a patient, she had to bend from her sitting position to about 30 cm off the ground. She did this at least 30 to 40 times a day. She was sure this wasn’t helping her back.

The examination bed was quite high and not adjustable. Helping patients onto and off the bed “also wouldn’t have helped” the applicant’s back. She never requested an adjustable bed as she knew what the answer would be. The only suggestion to help with her duties and back issues was to move to a quieter room, but the shorter shifts would not have provided her with the hours she required.

The applicant was not aware of anything in her employment agreement that would allow a change in her shifts without notice. She worked as normal on the Monday and her lawyer then informed Kristy she would not be in on Tuesday, “as part of lodging the claim”.

The applicant’s second statement is dated 21 October 2020.

The applicant repeated her evidence about her tasks and responsibilities. They required her to constantly stand and bend over. She often helped at times quite heavy elderly patients into and out of beds, requiring her to exert a lot of force. She was given no proper instruction as to how to install the scanner, which weighed approximately 20 kgs to 30 kgs.

The applicant started to experience lower back pain in about April 2019. It continued to deteriorate, and she was consulting her general practitioner, Dr Michael Panetta. He eventually referred her to Dr Andrew Kam, neurosurgeon, who performed two rounds of cortisone injections. They did not alleviate the pain.

The applicant had nearly all of November 2019 off work, due to back pain. She thinks she returned to work on or about 2 December 2019. She was instructed to change rooms and was moved the day after being told. She would constantly come home with a sore back.

The applicant underwent L4/5 laminectomy and lumbar interbody fusion, performed by
Dr Kam, on 14 September 2020.

Evidence of Kristy Donnelly

Ms Donnelly’s first statement is dated 14 April 2020.

The applicant was in Ms Donnelly’s team and they would regularly talk over the phone. Before the applicant was off work in November (2019), Ms Donnelly did not know of any injuries she had. She first heard of this when the applicant called in sick and said she was off with her back. She said she would be off for four weeks because she had seen her doctor and her back was playing up.

The applicant had a certificate from 28 October 2019 to 28 November 2019. Ms Donnelly had a couple of phone conversations with her, when she said she had been having problems with her back, but it had never been this bad. She required surgery and was on a waiting list, which could take up to 12 months.

Ms Donnelly stated that the applicant did not go into detail about why she had been having back problems, and she had not been able to find any incident or hazard report, or anything documented about back problems.

Before the applicant went on leave in November, Ms Donnelly and her upline manager had discussed going to see her about some issues, including complaints from patients and a doctor. The discussion was postponed. A Record of Discussion is completed, which is provided to employees to sign. If it is “quite serious” there is a formal meeting involving HR.

Ms Donnelly had noted an improvement in timing when the applicant was on leave, but the time taken depends on what is going on with the patient. She was going to bring this up with the applicant but thought she would leave it for a while when she mentioned the problems with her back, as some of this could be due to her back problems.

When the applicant proposed returning to work, Ms Donnelly asked her to get some clarification from her doctor, as she didn’t want her to injure herself further. She said she would be happy to temporarily give her another site with shorter hours and less patient demand, but the applicant wanted to come back to her room.

The applicant sent a certificate dated 28 November 2019. It was for four days a week, with Wednesdays off to rest and recuperate due to her medical condition (chronic spinal injury), commencing 2 December 2019.

Ms Donnelly and Ms Tuwhangai went to see the applicant on 2 December 2019 to see how she was coping. The applicant said she was fine and quite happy to stay in her room. They told her about the feedback they had received and they thought the wait times may have had to do with her back. She kept responding that she was fine.

Ms Donnelly brought up with the applicant the other issues to which the applicant referred in her statement. She went through the installation of the new printer. It was placed on the floor but is quite tall. When seated at the desk, it is at a good height to turn and scan documents with only limited bending. She explained to the applicant that she would get a stand to bring it to a higher level, but if it was too difficult, not to worry about scanning. She said she would see how she went.

The applicant was given a new certificate on 22 January 2020, to return to work for five days a week at normal hours. She called Ms Donnelly to inform her, and Ms Donnelly again asked about the surgery. The applicant was still on the waiting list, but her doctor was trying to get her pushed up.

Ms Donnelly and Ms Tuwhangai met the applicant on 3 March 2020. There had been complaints about her efficiency, skill and professionalism. They asked her about her back and how she was coping; and she reassured them she was doing well, and her injury had little or no impact on her work life.

Ms Donnelly provided details of the complaints and the applicant’s responses. She appeared surprised. She was shocked about the GP complaint. Ms Donnelly suggested a move to another centre in the short term. The applicant agreed to this. She asked if she could leave, with two hours of her shift remaining and became visibly upset. She said it had been a long week and she had just broken up with her fiancé. Ms Donnelly allowed her to leave.

The applicant started at Merindah and later also at Rouse Hill. They touched base by phone several times to make sure everything was settling in well, which appeared to be happening.

On 24 March 2020, Ms Donnelly received a call to say the applicant had not arrived for her shift at Merindah. The Practice Manager was very concerned as she had seen the applicant at work the previous day and she appeared normal. The applicant always called Ms Donnelly if there were problems, so she agreed with the concern.

Ms Donnelly tried to call the applicant and sent her a text message, with no response. When she opened her computer, she found three emails from the applicant’s lawyer. One email referred to physical injuries sustained in the course of employment. There was no mention of bullying or harassment. The applicant had sent an email giving permission for her solicitor to answer correspondence or calls and act on her behalf. There was a third email from the lawyer regarding her “continually” trying to contact the applicant.

Ms Donnelly then ceased contact with the applicant, contacted Ms Tuwhangai and forwarded the emails to the HR and Workers’ Compensation Departments, copying Ms Tuwhangai. She refuted that the back injury was sustained at work. The Record of Discussion from 2 December 2019 stated that they met with the applicant after her return to work “from a back injury (not work related)”. The claim noted the injury was due to the printer being on the floor, but the applicant had been off work prior to it being installed or used.

Ms Donnelly made a further statement dated 29 March 2021.

Ms Donnelly stated that “it was so long ago”, but she did not remember any particular conversation or incident regarding back issues for the applicant. She was surprised when
Ms Farrell informed her that she was going to have almost a month off in November 2019, as she thought this must be for something quite serious.

Before the applicant was off work in November, Ms Donnelly didn’t know of any injuries. The first she heard of this was when Ms Farrell called in sick and said she was off with her back. Some leave was taken as sick leave, but the majority was paid leave.

When the applicant informed Ms Donnelly she was suffering from a back issue, she looked through her phone records to see if there was anything she had missed that would indicate a problem. It wasn’t the same phone she had from April to November 2019, but she could not find any mention of the back issues.

Ms Donnelly kept in contact with the applicant throughout her leave. She is “pretty sure” she mentioned she hadn’t known the applicant was suffering from a back injury. The applicant mentioned “something like it had been a long-standing issue”. She didn’t mention it was from work. Ms Donnelly vaguely remembered discussing it, but nothing of it resulting from work activities, or that it started in about April 2019.

Ms Donnelly confirmed the applicant’s description of her work activities as requiring her to take samples and complete paperwork as accurate.

As regards assisting elderly patients, collectors normally do collections with patients sitting in chairs. They would only ask patients to lie down if they felt dizzy or lightheaded, or didn’t deal well with having blood taken, but this doesn’t happen often. They also lie patients down for an ECG test, but if the patient is not overly mobile, this can be done with them sitting in a chair. This would not be a daily activity, and would only involve offering a patient an arm, not physically lifting or moving them.

Ms Donnelly confirmed that the applicant’s daily activities were repetitive, as collections follow the same set procedure each time. The applicant was in an all-day room, and only the first couple of hours would be busy. Patient numbers would then slow and continual workloads would ease. She wouldn’t say the duties were heavy.

Ms Donnelly stated that the applicant “would have” completed two week’s training and would have been aware of and fully trained in the WHS requirements of her position. Whenever anyone joins the company, they work under the supervision of a preceptor for at least a month. The collection chairs are set to an appropriate height for the collectors so minimal or no bending is required. There are also annual risk assessments and workplace inspection every three months. There are hazard report forms and incident reports should an incident happen.

There are no workplace checklists, hazard or incident reports during 2019 and 2020 recording anything that may have caused the applicant’s lower back problem. While the applicant was off work in November 2019, she informed Ms Donnelly of the treatment she was having. She did a “kind of welfare check”, when the applicant would fill her in with what was happening.

Ms Donnelly recalled the applicant requesting an extra collector during the busier morning hours, but after complete reviews of patient flows and workloads, the company could not justify allocating a second collector. Both before and after the applicant returned to work,
Ms Donnelly offered to temporarily move her to Merindah Road, which had limited hours and lower patient flows. The applicant declined and made it quite clear she didn’t want to move. As she had been given a medical clearance, Ms Donnelly felt there was not much more she could do but allow the applicant to return to work and continue regular welfare checks.

Between November 2019 and March 2020 there were a number of work performance issues regarding the applicant. This caused concern that she wasn’t fully coping with the demands of the room and physically struggling with her back as well. She offered the applicant time off, but she declined as she didn’t have much sick leave or annual leave. She mentioned she was struggling financially and had to be treated through the public system. During these months there were again no formal records of hazard or incident reports.

While the applicant was on leave, a new printer was installed. Ms Donnelly had requested that it be installed on a shelf in the office, but it was placed on the floor. The applicant advised her of this by phone. While the printer was about 50 cm high and relatively easy to use without the need to bend, she told the applicant that she had ordered a little table/stand and until it arrived and the printer was moved, she shouldn’t use it. The applicant had not been using the previous printer, as she had issues with it, so not using the new one would not greatly affect her work.

Ms Donnelly stated that she does not recall the applicant mentioning problems with parking or the distance she had to walk to the new rooms. She had mentioned that collectors should contact those who worked regularly during the day for advice as to where the best free parking was situated.

The escalation in the applicant’s back issues came about two weeks after she moved. This surprised Ms Donnelly as she thought “this avenue” may have been taken during her mostly unpaid leave in November 2019 or when she was offered further leave when she came back to work.

Ms Donnelly does not see the applicant outside work. She cannot comment on how her back injury may have occurred, only that it wasn’t raised as being work related. Receiving the emails from the lawyer and the claim came as a complete shock to her.

Evidence of Capri Tuwhangai

Ms Tuwhangai’s first statement is dated 21 April 2020.

Ms Tuwhangai is Ms Donnelly’s upline manager. They have regular contact, at least once a week. She had not met the applicant until the issues arose.

My Health was a high performing collection centre, so it was fairly busy with constant flow of patients. The sites are important, and they know there is a particular expectation of service.

When Ms Donnelly first raised issues about the applicant, it was in about November 2019. She had mentioned that the applicant had been having issues with her back, “which definitely caught my attention”. She was alarmed that the applicant had had time off work and was concerned if it was work related. Ms Donnelly had asked enough to know it was not directly work related.

Ms Tuwhangai was quite concerned and wanted to do a site inspection to determine the situation. This took place in the first week of December. The applicant said she was doing OK and was on the waiting list for surgery, which surprised Ms Tuwhangai. She asked if the injury was work related and the applicant said it wasn’t. The applicant was physically fit looking for someone with a back injury, walking quite freely, sat and stood again, and did normal activities. She appeared quite well and happy.

Ms Tuwhangai allowed Ms Donnelly to address the issues. She inspected the site and found its presentation very poor. The applicant came across as surprised and defensive. She appeared to take the directives quite well and appeared quite happy. Before they left, she and Ms Donnelly again offered the applicant support regarding her injury.

There were further complaints and they decided to visit the applicant again to see how her health was and determine if her injuries were impacting on her performance. It was quite similar to the first meeting.

The meeting was in March 2020. The applicant said she was fine, but Ms Tuwhangai was not convinced. Her physical stature didn’t follow what she was telling them and looked more like someone with an injury. She was a little more hunched over and a little frail.

Ms Tuwhangai repeated Ms Donnelly’s evidence about the meeting. The applicant was quite shocked about the complaint from the GP. She appeared to accept responsibility and wanted to “fast track” things. She was really adamant that she didn’t want to leave her centre but then asked if she could be relocated as soon as possible.

The applicant “had a bit of a breakdown, was teary and obviously upset”. Ms Tuwhangai thinks the applicant apologised for breaking down and said she had been dealing with a few things outside work. The applicant asked if she could go home; and she and Ms Donnelly looked after the room until closing.

She followed up with Ms Donnelly, who advised the applicant had slotted in very well at her new location, there were no issues and she was very happy.

Ms Tuwhangai confirmed Ms Donnelly’s evidence about the circumstances of the applicant ceasing work and the subsequent notice of the claim. She was really quite surprised.
Ms Donnelly forwarded the emails, the first of which claimed the worker had a back injury and the next claiming bullying and harassment.

On 18 March 2021, Ms Tuwhangai provided a further statement.

Ms Tuwhangai confirmed that general back issues for the applicant were brought to her attention in November 2019. If there is an incident resulting in an injury, it is company policy for the collector to submit an Incident Report. It is expected to be submitted to their manager within 24 hours.

Ms Tuwhangai stated that one of the considerations in relocating Ms Farrell in about March 2020, in addition to the performance issues, was a high patient volume collection room, and relocating her to a room with lower volumes would also assist with any back issues.

Ms Tuwhangai stated that risk assessments have been completed for pathology tasks such as standing, collecting positions, disposal of sharps, unpacking and storage of physical stock. They all involve stretching, reaching, bending and twisting. The recommendations from the assessments are incorporated into the collectors’ training.

Ms Donnelly had informed Ms Tuwhangai that the printer, which was initially stored on a shelf, had been placed on the floor. The applicant had raised the issue of having to reach down to scan documents. Ms Donnelly had told the applicant to stop using the printer and she would organise a trolley on which to locate it.

Medical evidence
Dr Michael Panetta/Edge Medical Centre – General Practitioners

On 20 July 2019, Dr Panetta referred the applicant to Dr Kam with severe lumbar radiculopathy. Her past medical history included dyslipidaemia, osteoarthritis, left thigh pain, lumbar nerve root compression and overweight.

On 28 October 2019, Dr Panetta again referred the applicant to Dr Kam with “↑ pain despite steroid inj. Presented to hospital yesterday.? for surgery”. Her past medical history was unchanged.

Dr Panetta issued the applicant with medical certificates on 22 November 2019, 28 November 2019 and 22 January 2020. None is a SIRA Certificate of Capacity (COC) and none referred to a work injury.

On 23 March 2020, Dr Panetta issued the applicant with a COC, certifying her as having “repeated psychological injuries occurred while at work”. His diagnoses included “Exacerbation of Lumbar Pain due to poor work ergonomics and psychological conditions”. The applicant was certified as having no work capacity from 24 March 2020 to 6 April 2020.

Dr Panetta issued the applicant with COC’s, certifying her as having no capacity for work, until July 2020. She was then treated by either Dr Adib Obeid or Dr Therese Kanaan.

The clinical records of Edge Medical Centre cover only the period from 2 October 2020 to 11 November 2020.

Dr Kanaan recorded on 2 October 2020 that the applicant was a patient of Dr Panetta, “rooms closed suddenly”. The applicant was “under WorkCover”. She had had a lumbar fusion on 14 September 2020. Dr Kanaan issued a COC.

The applicant consulted Dr Obeid on 12 October 2020, 19 October 2020 and 10 November 2020, and he issued her with prescriptions and a COC. He recorded WorkCover on each occasion.

Dr Kanaan issued the applicant with a prescription on 4 November 2020. She recorded WorkCover. The applicant consulted her on 11 November 2020, but there is no record of the reason for the consultation.

Dr Andrew Kam – Neurosurgeon

The applicant completed a Clinical Information Form when she attended Dr Kam on 20 August 2019. The area that requested details of workers’ compensation or third party claim has been left blank. The applicant has acknowledged that she was seeing Dr Kam as a private patient and he would not be preparing medico-legal reports or providing reports or correspondence to any insurance company or solicitor.

Dr Kam reported to Dr Panetta on 28 August 2019.

Dr Kam recorded a history that the applicant had been struggling with some mild lower back pain but right sided leg pain since May 2019. There was no precipitating event. She was walking one day and felt a pulling sensation involving her right lower extremity. She described the symptoms as mainly a sense of pulling in her right thigh, with a sense of discomfort that would radiate from her thigh towards but never below her knee. She did not describe any numbness or tingling in her lower extremity. She found it more uncomfortable towards the end of the day. From time to time when she was standing for long periods, there was a sense of weakness in her right leg. Sitting and lying seemed quite comfortable. Her pain would escalate when she walked any distance. She had had a trial of Endep and Lyrica, which had not been effective, and was using a Fentanyl patch.

Dr Kam noted that the MRI of the applicant’s lumbar spine did not show any significant pathology involving the L4/5 and L5/S1 levels on the right side. She did have a subtle hypertrophic facet joint on the left side at L5/S1, potentially impacting on the left S1 nerve root, although it was not symptomatic. There was a suggestion that she may had a far lateral small disc bulge at L3/4, potentially impacting on the right L3 nerve root. This could potentially cause symptoms involving the anterior thigh and right knee.

Dr Kam advised the applicant to consider another steroid injection, as the last right L4 and L5 nerve block may not have addressed the cause of her symptoms. He suggested she have the L3/4 foramen targeted on the right, to deal with the right L3 nerve root at the exit foramen.

On 7 November 2019, Dr Kam reported that the applicant had presented with a two-week further exacerbation of right leg pain. She had been unable to work and at times her sleep was disturbed. She presented on crutches and was only able to walk or stand for five minutes.

The applicant had presented to the Emergency Department in the last two weeks for exacerbation of pain and was using a range of medications and a Fentanyl patch. She had had three steroid injections that had failed to relieve her symptoms.

Dr Kam had discussed surgery with the applicant as she had effectively exhausted conservative management. She did not have private health insurance, and he had placed her on the waitlist at Westmead Public Hospital for an L4/5 posterior lumbar interbody fusion. He had placed her on the short notice list in the event of a cancellation, as the waiting time was six to 12 months.

Dr Peter Khong – Neurosurgeon and Spine Surgeon

Dr Khong was qualified by the applicant and reported on 22 July 2020.

Dr Khong recorded a history that the applicant developed lower back pain and leg pain around 2019, and it gradually worsened. He described her job as requiring constant standing and bending over; helping elderly patients into and out of bed; putting ECG stickers on and taking them off; and other such physically demanding tasks. She worked at Baulkham Hills for three years, dealing with up to 30 patients per day.

Dr Khong diagnosed lower back and bilateral thigh pain and exacerbation and acceleration of degenerative changes in the lumbar spine.

Dr Khong recorded that in April 2019, the applicant started experiencing lower back pain. In March 2020, she suddenly experienced a “lightning bolt” in the midline lumbar spine, lasting approximately 30 seconds. She gradually began to experience more niggling pain after that and took occasional Panadol.

The applicant told Dr Khong the pain gradually worsened, and she would have to put her feet up after a day at work. She then started to experience right leg pain, radiating down the anterior right thigh to the knee.

In November 2019, the applicant took one month off for back and right leg pain. Before that, she had taken a few days off “here and there” for back pain. She went back to work but after seeing a doctor in March stopped working on 23 March 2020.

Dr Khong recoded complaints of lower back pain with radiation down the anterior thighs and knees bilaterally. The pain sometimes radiated just past the knees. The applicant had difficulty bending over. Her feet always felt cold. She had no numbness, pins and needles or tingling, and no bladder or bowel dysfunction.

The applicant was taking medication. Acupuncture had been trialled without relief. She had right L4 and L5 perineural injections on 3 June 2019, but they did not help at all. She had undergone right L3/4 transforaminal injection on 18 September 2019 and it also did not help at all.

Dr Khong recorded that the applicant could do no work in the garden and was unable to vacuum or clean. She could do some ironing with difficulty. She could engage in self-care with difficulty. She was no longer able to walk her dog, go to the park or the movies or walk around, due to back and leg pain. Taking the six stairs to her backyard was very difficult. She mobilised with crutches to take the weight off her back and legs.

Dr Khong concluded that the applicant’s MRI and CT demonstrated severe degenerative changes at L4/5 and L5/S1. Her work with the respondent caused an exacerbation and possible acceleration of her pre-existing degenerative changes. She had no capacity to work due to severe lower back pain. Her incapacity was the result of the “workplace incident”, which was a substantial contributing factor to her injuries.

Dr Khong opined that the applicant’s lower back pain was unlikely to improve significantly without surgery. He recommended fusion at L4/5 and L5/S1. The applicant would likely be unable to work for three to six months post-operatively. She may be able to return to her previous work if her back improved post-operatively.

Dr Khong further opined that it was likely that the applicant’s work with the respondent caused a progressive deterioration in the degenerative changes in her lumbar spine, with acute exacerbations at times. Her work involved a lot of manual labour, including bending, twisting, lifting and holding herself in abnormal postures for periods at a time. She sustained a lumbar spine injury as a result of the nature and conditions of her employment.

The proposed surgery was reasonably necessary, resulting from her employment, and to which her employment was a main contributing factor. While her MRI demonstrated multi-level degenerative changes in the lumbar spine, Dr Khong felt her work may have accelerated its progression or caused it to become symptomatic through acute exacerbations.

Dr Yingda Li – Neurosurgeon and Spinal Surgeon

Dr Li reported to Dr Kam on 8 September 2020.

Dr Li recorded a history that the applicant had had progressive low back pain and right leg pain since about April 2019. The distribution of pain was in the anterior thigh, radiating to just below the knee. The applicant could not walk more than three to four steps without significant aggravation of her symptoms. They were associated with paraesthesia in the same distribution. She denied bladder or bowel disturbance. She had no significant left lower extremity symptoms. She had been using crutches since March 2020 and had not worked since then. She had tried various conservative measures.

Dr Li reported that imaging showed multi-level degenerative disc disease spanning L3-S1. At L4/5 the applicant had a degenerative spondylolisthesis as well as a right foraminal disc protrusion. This resulted in significant right foraminal stenosis.

Dr Li concluded that the applicant had had approximately 18 months of disabling low back pain and right leg pain, predominantly in a right L4 distribution. She had failed all reasonable conservative measures and remained debilitated by her symptoms.

Dr Li opined that it would be reasonable to proceed with L4/5 posterior lumbar interbody fusion. The surgery was to be performed at Norwest Private Hospital on the following Monday.

The operative report confirms that Dr Li performed L4/5 laminectomy, right total facetectomy, open transforaminal lumbar interbody fusion, pedicle screw fixation and posterolateral fusion on 14 September 2020.

On 27 October 2020, Dr Li reported that the applicant was about six weeks post-surgery. Her mobility and radicular symptoms had improved, but she continued to be bothered by predominantly right knee pain, and at times pain that radiated more proximally and distally, similar to what she experienced before surgery. She had a clicking sensation in her right knee, which he felt may be an issue with the joint. She had minimal low back pain, but “really didn’t have much pain in the back to start with”.

As the applicant’s symptoms had improved, albeit marginally, Dr Li would continue expectant management. He would like to see her six months post-operatively.

Dr Bhisham Singh – Orthopaedic and Spine Surgeon

Dr Singh reported on 29 January 2021 to Unified Healthcare Group.

Dr Singh had examined the applicant on 9 December 2020. She had given a history of work-related injury over several years and had back and leg pain. She was diagnosed with lumbar disease at L4/5 and underwent L4/5 decompression and interbody fusion. After initial improvement, she had recurrence of lower back pain with right leg sciatica.

Dr Singh opined that the applicant had no capacity for work for the foreseeable future. Her incapacity was the result of injury sustained in the workplace. It resulted from L4/5 structural disease as well as L5/S1 structural disease. Following her operation, the L5/S1 injury had become “unmasked and aggravated”. He opined therefore that her employment was a substantial contributing factor to her injuries.

Dr Singh believed that the applicant sustained the lumbar spine injury because of the nature and conditions of her employment. Her job involved prolonged sitting, repetitive bending and twisting movements. She was asymptomatic before her injury and became symptomatic in April 2019, gradually worsening. The conditions of her employment had substantially contributed to her current condition.

Dr Singh did not have access to the applicant’s pre-operative imaging or Dr Li’s notes. He opined that the evidence suggested the applicant had L4/5 anterolisthesis with lumbar canal stenosis. He therefore opined that the surgery was appropriate and reasonably necessary. It was effective and a recommended method of treatment of spinal canal stenosis with instability. It was an acceptable treatment, with positive benefit and cost benefit. The applicant’s employment was a major contributing factor to the need for surgery.

Dr Singh did not believe the applicant was capable of returning to her job, and for the near future she had no capacity for employment. He agreed with Dr Khong. It was “more likely than not” that the conditions of her employment had caused an aggravation of the lumbar spine and her repetitive injuries resulted in the requirement for surgical treatment.

Dr Raymond Wallace – Orthopaedic Surgeon

Dr Wallace was qualified by the respondent and reported first on 8 June 2020.

Dr Wallace recorded a history that the applicant had been employed by the respondent since October 2011. Her duties included taking blood, doing ECG’s, Holter monitors and blood pressure monitors, as well as computer work.

In April 2019, the applicant noted the gradual onset of pain at the lumbar spine, radiating to the lateral aspect of the thighs bilaterally, without a history of injury. She also complained of intermittent lightning bolt type pains at her lumbar spine.

The applicant was reviewed by Dr Panetta, who prescribed medication and Fentanyl patch. She had been prescribed Mobic for a concurrent condition and continued its use. She underwent CT-guided right L4 and L5 nerve block injections on 3 June 2019.

The applicant had taken four weeks off on leave without pay and sick leave in November 2019, due to ongoing lumbar spinal symptoms. She had acupuncture and continued with a home exercise program. In November 2019, she commenced using crutches due to ongoing lumbar spinal pain.

In December 2019, the applicant was reviewed by Dr Cairn [sic: Kam], who suggested lumbar spinal fusion. On 23 March 2020, she was reviewed by her local medical officer, who suggested her spinal condition was work-related, due to bending over to take blood. She was currently using medication and a Fentanyl patch.

Dr Wallace recorded no previous history of injury to the applicant’s lumbar spine before April 2019.

The applicant complained of constant aching pain at her lumbar spine in the region of the L5/S1 process, radiating to the paravertebral region bilaterally, as well as the anterolateral aspect of the right thigh, to the knee. The pain was worse at night, on gardening, lifting, bending and twisting movements, standing or doing housework, such as vacuuming or cooking. It was relieved by lying down with her legs supported by a pillow or taking medication. She noted intermittent paraesthesia at the lateral aspect of the right leg; and complained of weakness at her right leg, but no stiffness at the lumbar spine.

After the onset of symptoms in April 2019, the applicant continued her pre-injury duties but had the odd day off during periods of aggravation. She returned to her pre-injury duties after one month off in November 2019. She had been certified unfit for work under workers’ compensation since 23 March 2020.

The applicant had difficulty dressing, particularly putting on her shoes and socks, but could dress unaided. Her sleep was disturbed once or twice a week by lumbar spinal pain. She had difficulty driving for more than 10 minutes. She was unable to help with tasks like cleaning the shower, hanging washing, making beds, or mowing and gardening. She had been unable to resume walking her dog.

Dr Wallace referred to the applicant’s investigations, including CT on 21 May 2019 and MRI on 14 August 2019.

Dr Wallace diagnosed pre-existing multilevel degenerative lumbar spondylosis, non-work related. He noted the spontaneous onset of lumbar spinal pain on 23 March 2020.

Dr Wallace opined that the applicant’s lumbar spinal condition was unrelated to her employment with the respondent. He referred to the American Medical Association Guides to the Evaluation of Disease and Injury Causation in regard to low back pain and the influence of trunk flexion “bending or twisting” that “There is insufficient evidence for an association between either trunk flexion and low back pain or twisting and low back pain”.

Dr Wallace further opined that the applicant’s lumbar spinal condition was due to pre-existing degenerative disc disease at L4/5 and L5/S1 levels, which was detailed on MRI investigation in August 2019. Her degenerative condition was aggravated by her body weight. She was then 59 and would have noted the onset of lumbar spinal symptoms at about the same time and stage of life if she had not been at work or employed by the respondent. Her employment was not a substantial contributing factor to any current lumbar spinal condition. The applicant did not require any treatment or medical review for any work-related condition at her lumbar spine. She had no work incapacity as a result of any such condition.

Dr Wallace reiterated that the applicant’s condition was constitutional and unrelated to her employment. She had suffered no work-related injury at her lumbar spine, within the meaning of section 4 of the 1987 Act. He opined that she had suffered no lumbar spinal injury by way of disease of gradual process. There was no medical evidence to support the notion that she had suffered a back injury as a result of repetitive bending in the course of her duties at work.

Dr Wallace opined that the applicant’s employment with the respondent was not the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of her lumbar spinal condition. The nature and conditions of her employment as a pathology collector were not consistent with being the cause of any lumbar spinal pathology. She had not suffered injury in the course of her employment.

Dr Wallace believed the applicant was fit to resume her pre-injury duties at her pre-injury hours of 75 hours per fortnight. She had no evidence of significant ongoing disability of her lumbar spine when he examined her.

Dr Wallace did not believe the applicant would benefit from surgery. The proposed surgery was not reasonably necessary in relation to any work-related condition at her lumbar spine. It was highly unlikely that lumbar spinal fusion would lead to a durable reduction in the level of symptoms or increase in function at her lumbar spine, in view of her widespread degenerative lumbar spinal condition. She had a guarded prognosis for ongoing normal function at her lumbar spine, due to pre-existing multilevel degenerative lumbar spondylosis.

Dr Wallace again reported on 12 April 2021.

Dr Wallace recorded a history that was consistent with his previous report.

The applicant had been reviewed by Dr Li. She had undergone L4/5 laminectomy and fusion on 14 September 2020. She had then been referred for physiotherapy. She took medication intermittently and continued a home exercise program and self-supervised hydrotherapy.

The applicant had an x-ray of her pelvis and hips on 30 December 2020, with evidence of severe degenerative osteoarthritis at the right hip, with bone on bone contact. She was to be reviewed by an orthopaedic surgeon for this condition on 26 May 2021.

Dr Wallace recorded that the applicant noted no improvement in her lumbar spine condition since the surgery. She complained of constant aching pain at the lumbar spine and right paralumbar region at L3, L4 and L5, radiating to the right buttock and anterior aspect of the right thigh, to the level of the knee. The pain was worse with lifting, bending or twisting movements or climbing stairs, and was relieved by using crutches or sitting and resting. The applicant noted intermittent paraesthesia globally about her right leg. She complained of weakness at her right leg and stiffness at her lumbar spine, worse early in the morning.

The applicant was slow to dress but could do so unaided. Her sleep was disturbed every night. She had difficulty climbing in and out of a car or driving for any period, and her mother usually drove her. She was able to do light housework but unable to do mopping or vacuuming. She was unable to help with mowing or gardening. She had been unable to resume walking her dog or visiting her daughter.

Dr Wallace diagnosed spontaneous onset of lumbar spinal pain on 23 March 2020. There was pre-existing multilevel degenerative lumbar spondylosis, which was non work-related.

Dr Wallace again opined that the applicant’s lumbar spinal condition was entirely unrelated to her employment with the respondent. The nature and conditions of her employment were not consistent with being the cause of any significant lumbar spinal pathology.

Dr Wallace noted that the applicant underwent CT of her lumbar spine in May 2019, 10 months before reporting symptoms to her employer, which showed evidence of severe multilevel degenerative disc disease, particularly involving the L4/5 and L5/S1 levels. She had recently undergone lumbar spinal fusion at L4/5, but it had failed to relieve her lumbar spinal pain. In December 2020, x-ray of her pelvis and right hip showed severe degenerative osteoarthritis at the right hip, which was constitutional and certainly unrelated to her employment.

Dr Wallace again opined that the applicant’s lumbar spinal symptoms are due to pre-existing age-related multilevel degenerative lumbar spondylosis, which was complicated by obesity. Her thigh symptoms were due to previously undiagnosed right hip degenerative osteoarthritis. Her employment was not a substantial contributing factor to her lumbar spinal condition. The nature and conditions of her employment were not consistent with being the cause of any significant lumbar spinal pathology. She had been employed in the same job for eight years before the onset of symptoms in April 2019 and noted no previous history of any work-related lumbar spinal symptoms.

Dr Wallace confirmed his previous opinion that the applicant had not suffered an aggravation, acceleration, exacerbation or deterioration of an underlying degenerative condition. Her employment was not the main contributing factor to any current lumbar spinal condition.

Dr Wallace opined that the lumbar spinal surgery performed on 14 September 2020 was not reasonably necessary as a result of any work-related injury. There was no work injury that had made a material contribution to the need for surgery. The surgery had failed to relieve the applicant’s symptoms.

Dr Wallace accepted that the applicant was not fit for activities requiring repetitive bending or twisting movements at her lumbar spine, sitting or standing in one position for prolonged periods or repetitive lifting above 5 kgs. However, he considered that her incapacity was unrelated to her employment. She had a poor prognosis for recovery of function at her lumbar spine, due to her pre-existing condition and increased body weight.

SUBMISSIONS

The parties’ submissions have been recorded and a transcript is available. I will therefore provide only a summary of the submissions.

Applicant

The applicant submitted that her claim is based on a gradual process of injury by reason of her work tasks. She referred to her first statement. Her last day at work was 23 March 2020.

The applicant submitted that the respondent had installed a scanner, which, she had told
Ms Donnelly, was sitting on the ground. She had to bend from a sitting position to about 30 cm off the ground to insert the paperwork, at least 30 to 40 times per day. That is obviously an example of repetitive and abnormal loads on the spine.

The applicant submitted that it is significant that Ms Donnelly was aware of her back condition. The condition of her back indicates a degenerative spine. The case is brought on the basis that the degenerative condition was aggravated by the variety of work she performed. It is significant that the workplace had this arrangement, where the applicant would have to repeatedly bend, placing a load on her degenerative spine.

Another source of aggravation was that the examination bed was quite high and not adjustable, and helping patients, especially elderly patients, onto and down from the bed, as the applicant put it, “wouldn’t have helped her back”. Her tasks included taking blood tests, ECG swabs and Holter monitors and she says they required her to constantly stand and bend over. She submitted that it was important that these accounts of work-related activities and exertion of force are not contested by the respondent.

The applicant submitted that it was relevant that she was constantly on her feet, as well as leaning over patients and helping people onto examination beds. She needed to lift and carry the scanner, which she said weighed approximately 20 kgs to 30 kgs, evidence that is not in dispute.

The applicant referred to the evidence of Ms Tuwhangai, who was told by Ms Donnelly that Ms Farrell had been having issues with her back. There was an understanding by management that she had back difficulties, which raises the question of what they did to ensure she was not aggravating that condition.

The applicant submitted that there was an important concession from Ms Tuwhangai that there was a discussion about moving her to a more suitable site, based on her capabilities with regard to her back injury and the patient volume. She said the room was too small for two to work efficiently, so the obvious answer was to relocate the applicant. The applicant submitted this was recognition that she was in a demanding, high-volume workplace and the notion of a more suitable site was a recognition that she had a weakness in her spine and traffic at the worksite would aggravate the condition of her spine.

The applicant referred to Ms Tuwhangai’s evidence about her physical appearance, which she submitted confirmed a deterioration in her condition. She also referred to the possibility of relocation as recognition that the workplace was placing significant load on her degenerative spine.

The applicant submitted that Ms Donnelly’s evidence about the printer sought to downplay the relevant posture required, but there was a concession there was the need to bend. Her evidence that she was going to get a stand is a concession that it was at an inappropriate level. She then said that if it was too difficult for the applicant in its present position, not to worry about scanning.

The applicant relies on the report of Dr Khong. He expressed the opinion that her work caused an exacerbation and possible acceleration of her pre-existing degenerative changes. Dr Khong reported that her work involved a lot of manual labour, including bending, twisting, lifting and holding herself in abnormal postures for periods at a time.

The applicant submitted that Dr Khong, when he examined her on 22 July 2020, noted she was not fit for any work, due to severe lower back pain. She could possibly return to her previous work after surgery. Given her most severe changes were at L4/5 and L5/S1, he recommended fusion at those levels.

The applicant also referred to Dr Singh’s evidence. She submitted that he believed her incapacity was the result of injury sustained in the workplace. It resulted from L4/5 and L5/S1 structural diseases. He suggested that her employment was a substantial contributing factor. She submitted that Dr Singh has explained the mechanism of injury. The activities to which he has referred are the very activities Dr Khong recognised as being injurious in effect. Dr Singh opined that her employment was a major contributing factor to her need for surgery. He expressed the view that in the near future she had no capacity for any employment whatsoever.

The applicant submitted that Dr Panetta issued a medical certificate on 22 November 2019, noting severe spinal degeneration and radiculopathy and he considered her to be unfit for work. He subsequently issued WorkCover certificates. Some record incapacity based on a psychological injury, but the spinal condition as a source of incapacity was certified on 19 October 2020. The description of poor work ergonomics would plainly describe what was noted in relation to the position of the scanner, and the variety of other tasks that required repetitive bending and twisting.

The applicant submitted that, in summary, we have the medical opinions of two spine specialists that her work activities were the cause of the aggravation of her condition and the surgery was reasonably necessary. We also have the opinion of Dr Panetta of a work-related feature of her lumbar spine condition.

The applicant submitted that Dr Wallace’s opinions start with an inadequate understanding of what her work involved. He made no enquiry into the physical requirements of her work, so he took no details of the kind recorded by Drs Khong and Singh. The history of the spontaneous onset of lumbar spine pain in March 2020 is plainly incorrect, as the respondent’s lay witnesses were aware, certainly in 2019, that the applicant had spine problems. This would give cause to treat Dr Wallace’s report with a degree of circumspection.

The applicant submitted that Dr Wallace had a pre-determined view as to whether it is possible to injure oneself from bending or twisting. He referred to the American Medical Association Guides, which is not a source of authority in this jurisdiction. It does not have the status of AMA5 and the conclusion on which he relies is contrary to hundreds of decisions in the Commission.

The applicant submitted that Dr Wallace said her lumbar spinal condition is due to pre-existing degenerative disease of the L4/5 and L5/S1 levels, so he noted the pathology, and said it is aggravated by her body weight. He came up with an explanation of a factor without acknowledging the repetitive activities she was performing, because he relied on a particular publication.

Dr Wallace said the applicant would have noted the onset of lumbar spinal symptoms at about the same time and same age. She submitted that wouldn’t be the case if she was in a sedentary position, or not working at all. Clearly, she was subjecting her spine to repetitive stresses in the course of her employment, which would explain the aggravation of her condition in the workplace and the deterioration, as observed by the two managers.

The applicant submitted that Dr Wallace’s view that the proposed surgical intervention was not reasonably necessary wasn’t the view of Dr Singh, Dr Khong, Dr Kam and Dr Li, who operated on her. We have three spine specialists, all of whom considered it was appropriate to proceed with surgery.

The applicant referred to Dr Wallace’s second report. He asserted that her lumbar condition was entirely unrelated to her employment. He noted she would not currently be fit for activities requiring repetitive bending or twisting movements at her lumbar spine, sitting or standing in one position or prolonged periods of repetitive lifting above 5 kgs. She submitted that was a significant acknowledgment because he recognised as a matter of common sense that she would not be able to do activities that involved repetitive bending or twisting because they would have an aggravating effect on her lumbar spine.

That is evidence that supports the applicant’s claim for weekly compensation.
Dr Wallace noted her incapacity was due entirely to her pre-existing multilevel degenerative lumbar spondylosis. She submitted that it wasn’t when she was working for almost eight years before she started experiencing symptoms in 2019, and those repetitive activities over that time would, as a matter of common sense, have aggravated the condition, rendering it symptomatic.

As regards the surgery, the applicant submitted that the first question is whether it was reasonably necessary to treat the pathology, and there are the views of a number of specialists. She submitted that the aggravation on the background of a degenerative spine, which then caused symptoms and pain, was the basis for them to consider surgery was appropriate. She is entitled to have her medical expenses paid, pursuant to section 60.

As regards incapacity, the applicant submitted that the respondent acknowledged she lacked the capacity to work in that workplace and needed to be moved to a less demanding one. Her condition, as noted by a number of people, including Dr Wallace, is such that she is unable to do practically anything in an employment setting, and she sought orders pursuant to sections 36 and 37 at a quantum based on her pre-injury average weekly earnings.

In reply to the respondent, the applicant referred to Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, and the requirement that the respondent satisfy the member as to the actual job a worker can perform. The respondent hasn’t put any evidence indicating the tasks the applicant in her injured state would be able to perform.

The applicant submitted that Dr Khong said she could possibly return to her previous work after surgery. We can take it that prior to the surgery there was no capacity. It would have taken months following surgery for the applicant to have any ability to move around at all.
Dr Singh said on 29 January 2021 that she was unfit for any employment for the near future. She submitted we are still within the ambit of the near future.

The applicant submitted that Dr Wallace indicated a profound incapacity. The respondent suggested there were sedentary jobs, but the doctors have already identified sitting and standing as a problem. There is no evidence from the respondent as to an actual job that would not be affected by the opinion of its own examiner as to her capacity.

The applicant submitted she is a worker who cannot conceivably be considered fit to return to the workforce. I don’t even have an opinion from the respondent as to a gradual re-entry into the labour market. For that reason, she submitted she obviously has no capacity at all for work.

As for the respondent’s submission that, because the GP initially didn’t issue WorkCover certificates, I can draw the inference that he didn’t at that stage consider the condition to be work-related, the applicant submitted that we don’t know whether he considered that question. We don’t know whether he asked that question. At best, for the respondent, he started off not appreciating the condition was work-related. More recently, he was of the view that it was, and issued WorkCover certificates accordingly. The applicant doesn’t require a report from the GP on causation. He certified that the condition is work-related, so he plainly is of that opinion.

The applicant submitted that I cannot draw an inference that the treating specialists consider her condition is not work-related because they are silent on causation. They haven’t expressed a view on causation, so that is of no relevance to me in considering the balance between what Dr Wallace has to say and what Dr Singh and Dr Khong, supported by
Dr Panetta, had to say. She submitted that the preponderance of medical opinion is supportive of her case on causation, that is that her condition was aggravated by her work activities.

The applicant submitted that the history taken by Dr Khong as to her work activities is consistent with her evidence, which there is no reason not to accept. His opinion is based on her evidence, which cannot be properly placed in dispute. His use of the word “incident” was clearly a matter of poor expression. Reading the report as a whole, it’s obvious that he understood the mechanism of injury to be a repetitive one, as a result of activities over a period of time.

As regards the respondent’s submission that Dr Singh took a cursory view of the applicant’s job, she submitted that Dr Wallace recorded her work in the briefest detail. Dr Singh has recorded a more comprehensive record.

On the question of the reasonable necessity of surgery, the applicant submitted that the fact that after a procedure she didn’t derive benefit is no basis to reject the medical opinion prior to surgery that it was an appropriate mode of treatment. There are a variety of spinal surgeons who considered it appropriate.

As regards section 4(b)(ii), the applicant submitted that we start with an underlying degenerative spinal condition, and can see from what was observed by the respondent’s witnesses from 2019 to the stage at which she became incapacitated that there was a successive deterioration in her condition. It occurred in circumstances where there is evidence of repetitive duties, not disputed by the respondent, which Drs Khong and Singh accept as having contributed to the deterioration of her condition. Dr Panetta referred to an exacerbation.

It cannot be asserted, as Dr Wallace does, that this is purely constitutional. There is an underlying constitutional condition. The question is whether those repetitive activities on a daily basis aggravated the applicant’s condition. Clearly, the respondent accepted that her work did involve an aggravation, hence its proposal to move her. That would acknowledge a recognition that keeping her in the same workplace was injurious and contributing to the deterioration of that condition.

Respondent

The respondent submitted that the applicant commenced work in about 2011 and appears to have been able to perform her usual duties without issue until some time in April 2019, when, she said, she first started to complain of back pain. It is true that in about October-November 2019 she complained about a sore back, but what is notable is that nowhere did she complain of any work involvement in her back problems.

The respondent submitted that there are no clinical records that substantiate complaints that her back was being aggravated by the duties she was doing. It was not until she was “pulled up” for performance issues that she first went off work, but the first WorkCover certificate relates to psychological issues and has nothing to do with her back. It was in about March 2020 that the applicant started to say all those prior back problems were to do with her work and a case was then constructed based on that.

The respondent submitted that, as a specialist tribunal, I would have knowledge of a pathology collector. This is not a nurse, where there is daily repetitive heavy lifting, bending and twisting and such activities. There may be some twisting and bending, but it is not the main dictate of that kind of employment.

The respondent referred to the applicant’s first statement, in which she said that in April (2019) she had what was like a bolt of lightning in her back, and, critically, “I can’t remember what I was doing exactly when it happened but I was quite busy.” The respondent submitted that “doesn’t carry the can in terms of an injury”. We don’t know what the applicant was doing. Everybody has busy days. She carries the onus of establishing not only injury, but that employment was the main contributing factor to it, given that this is being cast as a disease case.

The respondent then referred to the evidence of its lay witnesses. No report was made of any kind of injury, either officially or verbally. Ms Tuwhangai asked the applicant if her injury was work-related and the applicant replied that it wasn’t. She was quite surprised that the applicant was physically fit-looking.

The respondent submitted that there are no contemporaneous records of any work-related complaints. There are no records of Dr Panetta, and the certificates are not WorkCover certificates. There is an inference to be drawn that he was not told the applicant had any work-related injury, otherwise he would have been minded to issue a WorkCover certificate.

The respondent submitted that the first WorkCover certificate is dated 23 March 2020 and does not mention the back, except for “exacerbation of lumbar pain due to poor work ergonomics and psychological conditions”. This is at about the same time the Claim Form was put in. Somehow, the psychological allegations have prompted the applicant to attribute her bad back to work, and from then it escalated.

The respondent submitted that we don’t have a report from the GP on causation. Dr Panetta referred the applicant to Dr Kam at the end of October 2019. There is no mention or suggestion of any work issue, and the respondent referred to the past medical history. It submitted that these are relevant to the issues I have to determine. The applicant carries the onus to prove main contributing factor, either to the cause or the aggravation. The respondent understood the applicant to rely solely on section 16 (of the 1987 Act). There were clearly other factors that Dr Panetta was drawing to the attention of Dr Kam.

The respondent submitted that there is no suggestion the applicant doesn’t have a bad back – “of course she does” – and the radiological investigations are “littered with multilevel disc problems”. I must determine causation and main contributing factor.

The respondent then referred to the reports of Dr Kam and submitted that what is “deafening in its silence” is there is no opinion or history of the work involvement, and one would have expected, either from the GP or certainly from the specialist, that the applicant would either have given a history if she thought there was a work involvement, or Dr Kam would have attributed any of her problems to work.

The respondent submitted that it was not as though Dr Kam didn’t know the sort of work the applicant was doing, as he recorded that she worked as a pathology collector. The respondent then referred to the history recorded by Dr Kam. It submitted that it does not lend itself readily to the applicant performing any of the tasks that her counsel has submitted were responsible for her aggravation. The activities she described were activities she would perform whether she was at work or not.

The respondent submitted that I would draw a Jones v Dunkel inference (Jones v Dunkel [1959] HCA 8; 101 CLR 298) that either the applicant hasn’t sought an opinion on causation from the treating specialist or it doesn’t assist her case. The respondent made a similar submission in respect of the reports of Dr Li. His report of 8 September 2020 is deafening in its silence in any reference to work, either in the history or his opinion. There are all these reports from Dr Li and no mention of causation. The respondent submitted this is a very serious matter, because “it’s all well and good” for the applicant to rely on Dr Khong, but he and Dr Wallace are IME’s. The treating specialists are the ones who took the radiological investigations and operated on the applicant and are completely silent when it comes to any work-related involvement.

The respondent submitted that Dr Khong’s history about the applicant’s duties, and the applicant’s evidence, was exaggerated. It may well be that she had to stand, twist or bend at times, but to suggest that it was constant bending and constantly helping elderly patients into and out of beds, could not possibly describe the duties of a pathology collector. The respondent puts the applicant to proof and asks me to determine whether this employment is as heavy, repetitive, et cetera as the brief job description given by Dr Khong. If I am not satisfied that such physically demanding jobs were the flavour of the applicant’s occupation, then his report and opinions on causation must disappear and I would place little weight on them.

The respondent submitted that Dr Khong did not have access to the contemporaneous reports of Drs Kam, Li or Panetta. He doesn’t seem to appreciate that the applicant, while possibly complaining of back problems in April 2019 and again in October-November 2019, made no mention to her superiors or her doctors of any work involvement. It submitted that I would not be satisfied under Hancock v East Coast Timbers and Makita v Sprowles (Hancock v EastCoast Timber Products Pty Limited [2011] NSWCA 11; and Makita (Australia) Pty Ltd v Sprowles [2011] NSWCA 305) that there was a proper basis for the doctor to come to that conclusion.

The respondent referred to Dr Khong’s opinion that the applicant’s incapacity was a result of a workplace incident and it was a substantial contributing factor to her injuries. It submitted it was not aware of any incident, any section 4(a) injury or particular frank injury. The whole case is based on a gradual onset of back problems from April 2019, and aggravation of underlying degenerative changes.

The respondent submitted that Dr Wallace, being an orthopaedic surgeon of some experience, knows what a pathology collector does; and in his opinion the nature of that employment would not be such as to cause aggravation, acceleration et cetera of an underlying condition. There is no reason why he would not be accepted on causation. The fact that he referred to an American guide “is neither here nor there”. He is a specialist and I must decide which medico-legal opinion I am more satisfied with. But the applicant carries the onus, so there is an extra duty on her to establish the case on the balance of probabilities.

The respondent submitted that Dr Singh’s report is unusual in that we have no knowledge of the circumstances in which it was prepared or why. He took a very cursory view of the applicant’s job. He talked about “nature and conditions”, which the respondent submitted “should ring an alarm bell straightaway”, as no doctor talks about nature and conditions. The phrase is well-known to this jurisdiction, so clearly it has something to do with compensation. Dr Singh said the applicant was asymptomatic before the injury (the respondent asked, “which injury?”) and became symptomatic in April 2019. The respondent submitted while it is true that the applicant became symptomatic in April 2019, she herself doesn’t know what she was doing. The report is more a medicolegal report than the report of a treating specialist.

As regards the reasonable necessity of the surgery, the respondent submitted that
Dr Wallace is the only doctor who was prescient in relation to the surgery. His most recent report, dated April 2021, gives the clearest indication of what the applicant says in relation to her condition; and he took a history that there was no improvement. The respondent referred to the summary of the case law in Diab v NRMA Ltd [2014] NSWWCCPD 72 and submitted part of the test for reasonable necessity is whether the proposed treatment is going to be of benefit. Dr Wallace was of the view that it would not, and it is confirmed by the applicant herself.

The respondent submitted that the applicant failed to prove that surgical intervention was reasonably necessary in itself, and secondly that it resulted from any injury. It further submitted that even if I found employment caused some form of injury, I must use the Kooragang test (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796) to feel an actual persuasion that the injury has materially contributed to the need for surgery. Neither Dr Kam nor Dr Li supports that contention.

The respondent referred to the second statements of Ms Donnelly and Ms Tuwhangai, in which they disagree that the applicant was performing constant heavy and repetitive work. The respondent submitted that moving the applicant to lighter or less onerous duties in October and November 2019 was not an admission. Any responsible employer, hearing that the applicant had any physical problem, will do their very best to accommodate her and place her in a type of job that might be even less onerous than the job they were doing earlier. At the time this occurred, there was no suggestion of any type of work involvement.

The respondent submitted that Mannie v Bauer Media Pty Ltd [2016] NSWWCCPD 47 is authority that the test is not whether the employment was capable of causing an injury. I must be satisfied that an injury occurred as a result of the actual activities the applicant was performing.

The respondent relied on AV v AW [2020] NSWWCCPD 9 in addressing the issue of main contributing factor. It submitted that this is a more stringent test than section 9A. The applicant carries the onus. The respondent also relied on the section 78 notice, which goes into the evidence in some detail.

As to the applicant’s capacity, the respondent conceded that it could not make any submission that immediately following the surgery she would have been other than totally incapacitated. However, I have to take into account the medical certifications before and after the surgery. There is clearly a psychological component to the certifications, and there is no evidence to weed out what it might be, relevant to any physical component. The evidence doesn’t suggest the applicant is totally incapacitated but seems to be quite optimistic that she is going to be able to return to her duties as a pathology collector some time in the future.

The respondent submitted I must look at section 32A of the 1987 Act. The applicant is educated enough and could perform a wide variety of suitable duties once the period immediately following the operation subsided. The applicant also had capacity before the operation, as she demonstrated until the performance issues came to light in March 2020.

The respondent submitted that the applicant was not totally incapacitated for work. The medical certificates “prove nothing”. They are not supported by any reasoning or reports from their author. Dr Khong reported in July last year that “currently” the applicant was not fit for any work due to severe lower back pain. We are nearly a year beyond that report.
Dr Wallace thinks the applicant has capacity. Dr Singh did not believe she had any capacity for work for the foreseeable future, which the respondent submitted was ridiculous. There would be a lot of sedentary duties, not the least of which would be the kind of duties she was moved to in October or November 2019, that she could perform. She could perform clerical type duties that do not involve a great strain on the lumbar spine.

SUMMARY

The applicant claims to have sustained injury to her lumbar spine by way of gradual process as a result of her work tasks. The injury is pleaded as being the result of the nature and conditions of employment, with a deemed date of injury of 23 March 2020.
The applicant’s case is essentially that she has an underlying degenerative disease condition of her lumbar spine, which was aggravated, accelerated, exacerbated or deteriorated by her employment with the respondent. The parties approached the dispute on the basis that section 4(b)(ii) of the 1987 Act applied, which I believe is appropriate.
Section 4 of the 1987 Act provides:
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.”

The applicant bears the onus of establishing on the balance of probabilities that she has sustained injury arising out of or in the course of her employment with the respondent. Her employment with the respondent must be the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease. It need not be the main contributing factor to the disease itself.

A finding of aggravation (for convenience I will use the term “aggravation” where the phrase “aggravation, acceleration, exacerbation or deterioration” appears in section 4(b)(ii) of the 1987 Act) does not amount to a finding of “injury”.

Deputy President Snell held in AV v AW that the requirement that “main contributing factor” be established forms part of the definition of “injury” in section 4(b)(ii). Snell DP said [at 63]: “It was, on the clear words of the provision, necessary that ‘main contributing factor’ be established before there could be a finding of injury”.

There is no issue that the applicant has what the respondent’s counsel colloquially referred to as a “bad back”. Her evidence is that her back started to worry her in about April 2019. There was one day when she had what felt like lightning in her back. She cannot remember what she was doing at the time, but her back seemed to get worse after that.

The applicant stated that her manager, Ms Donnelly, “would have been aware” of her back problems because she was having investigations and treatment, and the results were being forwarded to her. Ms Donnelly’s evidence is that she became aware that the applicant had back problems in November 2019 when Ms Farrell told her she would be off work for four weeks because her back was “playing up”. She stayed in touch with the applicant during this time.

The applicant does not say that she told either Ms Donnelly or Ms Donnelly’s manager,
Ms Tuwhangai, that she had injured her back at work, or that her condition was related to her duties for the respondent. She had told Ms Donnelly she needed an extra person for a few hours at the busiest time. Ms Donnelly confirmed that the applicant had requested an extra collector during the busier morning hours, but the patient flows and workloads did not justify this.

The applicant was resting during November 2019 and on her return to work Ms Donnelly and Ms Tuwhangai raised with her some performance issues. She was asked if she would like to move to a quieter room, but said she was coping, it was her first day back, and everything was fine. She did not say that her duties had been affecting the condition of her back.

While the applicant was on leave, a new printer was installed, and was placed on the floor. The applicant stated that she told Ms Donnelly she had to bend to about 30 cm off the ground, at least 30 to 40 times a day, to use it. She “was sure this wasn’t helping her back”. Ms Donnelly has stated that the printer was at a good height and required only limited bending, but she told the applicant not to use it if it was too difficult. The applicant said she would see how it went.

When it was suggested on 2 March 2020 that the applicant be moved to another room, she was distressed, but again does not seem to have mentioned that her workload was affecting her back. She has stated that “it was getting to crazy levels of 35 to 40 patients a day without assistance”. Ms Tuwhangai confirmed that the centre was fairly busy, with a constant flow of patients.

The applicant’s evidence about her workload, apart from the issue with the printer, is that 90% of it involved blood tests. She also conducted ECG’s and swabs and did a fair bit of paperwork. She was on her feet all day, sitting and standing again, leaning over and helping at times quite heavy and elderly people onto and off the bed.

Ms Donnelly was herself a collector before taking up her current position. She came from a busy room. She confirmed that the applicant’s daily activities were “repetitive”, as collections follow a set procedure. She stated that patients usually sit and are only asked to lie down if there are issues, which does not happen often. Lying a patient down would not be required daily and would not involve lifting or moving them.

Ms Donnelly stated that the collection chairs are set to an appropriate height for the collectors, so minimal or no bending was required. The applicant was in an all-day room. The first couple of hours would be busy, after which numbers would slow and continual workloads would ease. She would not say the duties were heavy. The collection equipment is placed at the correct height to avoid the need for bending or twisting motions. While a collector’s duties require a lot of standing and some limited twisting and leaning, it is not a physical position.

Ms Tuwhangai was also previously a collector. She described My Health as a fairly busy centre with a constant flow of patients. More than 20 patients a day would qualify a centre as high volume. She did not observe anything noticeably different to any other collection room.

The applicant was consulting Dr Panetta, who issued her with non-WorkCover medical certificates in July 2019, October 2019, November 2019 and January 2020. He also referred her to Dr Kam, but the referral did not mention a work-related injury or condition. Dr Panetta certified Ms Farrell as fit to return to work for five days a week, at her normal hours, on 22 January 2020.

Dr Panetta issued the applicant with a COC on 23 March 2020, in respect of a psychological condition. He added the diagnosis of exacerbation of lumbar pain.

The applicant’s evidence is that Dr Panetta advised her on 20 March 2020 to consult a lawyer about the possibility of lodging a WorkCover claim. He had been recommending this for a while and was concerned that continuing to work may make her back worse.

It is difficult to understand why, if Dr Panetta had been suggesting the applicant make a claim for her back condition, he would not have issued her with COC’s before 23 March 2020. He also certified her as fit for her pre-injury duties and hours in January 2020, which is inconsistent with a concern on his part that working may make her back worse. The applicant has not given evidence of any reluctance to make a claim for compensation, and she obtained legal advice as soon as Dr Panetta suggested she do so. Her solicitor then submitted a claim on her behalf.

The applicant submitted that Dr Panetta may have started off not appreciating that her condition was work-related but more recently came to the view that it was. There is no evidence from Dr Panetta to explain this, if it occurred, and the clinical records do not assist. It is also inconsistent with her evidence that he had been suggesting for some time that she make a claim.

Ms Donnelly gave evidence that the applicant was struggling financially, did not have much leave, and had to be treated through the public system. The applicant declined the offer of time off for these reasons. If Dr Panetta believed she had sustained a work injury, I would have expected him to issue COC’s, which would potentially have allowed the applicant to take paid leave and obtain treatment, without being placed on a waiting list.

The absence of evidence from Dr Panetta is not explained, apart from a reference in the records to his rooms having closed suddenly.

When Dr Panetta referred the applicant to Dr Kam, he made no reference to her back condition being work related. Once again, if he was concerned that her work was aggravating her condition, I would expect that he would have mentioned this in the referral.

The applicant presented to Dr Kam as a private patient. Dr Kam did not record any history of any work injury or any relationship between the applicant’s condition and her employment. The history he recorded was that there was no precipitating event. He has not recorded any specific work activity that aggravated the applicant’s condition, or that she was required to repetitively twist and bend or lift anything heavy.

Dr Kam recorded on 7 November 2019 that the applicant had a two-week further exacerbation of right leg pain and was unable to work. There is no history of what, if anything, caused the exacerbation. He placed the applicant on the public waiting list for surgery, noting that the waiting time was from 6 to 12 months. Had he believed her condition was related to her work for the respondent, one would expect him to recommend that she make a claim for the cost of surgery, which may have taken place sooner if the claim was accepted.

There is no evidence from Dr Kam that supports a causal link between the applicant’s employment and her injury. It may be, as noted on the Clinical Information Form, that he would not prepare medico-legal reports or correspond with insurers or solicitors, as the applicant had consulted him as a private patient, but there is also no evidence of any attempt to obtain a report from him.

The applicant has also been treated by Dr Li, who performed the surgery. There is no evidence from him as to causation of her condition. The history he recorded was of progressive low back pain since about April 2019, which is consistent with the applicant’s evidence.

I accept that the lack of evidence on causation from Dr Li is not necessarily fatal to the applicant’s claim. He was obviously concerned with the appropriate treatment, rather than with a possible claim or liability issues.

The applicant submitted that I cannot draw an inference that her treating specialists do not consider her condition is work-related because they are silent on causation. I accept that I am not required to draw that inference. However, she bears the onus, and the unexplained lack of evidence on causation from two treating specialists means I am left with the opinions of Drs Singh, Khong and Wallace with respect to causation. The applicant submitted that I also have the evidence of Dr Panetta, but I regard it as unsatisfactory, for the reasons above.

Dr Singh does not appear to have treated the applicant. His report is addressed to “Boyan” at Unified Health Group. He refers to Boyan’s letter dated 2 December 2020, requesting a medical report, and notes having examined Ms Farrell on 9 December 2020. Dr Singh was asked questions about “our client”, suggesting that Ms Farrell was a client of Unified Health Group, but Boyan’s letter is not in evidence.

Dr Singh has accepted the applicant’s history of a work-related injury over several years, and of back and leg pain. He also noted that x-rays had revealed severe right sided hip osteoarthritis, which may be a major contributing factor to her current disability.

Dr Singh believed that the applicant’s injuries resulted from L4/5 structural disease as well as L5/S1 structural disease. Following surgery at L4/5, the L5/S1 injury has become unmasked and aggravated. I am not sure what Dr Singh meant by that.

Dr Singh was asked whether he believed that the applicant had sustained a lumbar spine injury as a result of the nature and conditions of her employment. He recorded that her job involved prolonged sitting, repetitive bending, and twisting movements. The conditions of employment “have substantially contributed to her current condition”. He opined that it was more likely than not that they caused an aggravation of the lumbar spine.

I accept that the applicant herself may not have appreciated that she could make a claim for compensation with respect to an injury to her back, if there was no frank incident and she was unable to recall exactly when she experienced the “lightning” episode or what she was doing at the time. Her evidence is that it didn’t seem appropriate to use an Incident Report.

However, the applicant has given evidence that she believed her duties were causing problems with her back, but when she was asked by Ms Donnelly and Ms Tuwhangai if the injury was work-related she responded that it was not. It appears to me that the applicant’s evidence involves a degree of reconstruction, after ceasing work due to her psychological condition. Her undated Claim Form states that she was subjected to “bullying/harassment once request made to change workplace”. That is not the case, on her own evidence. She was offered a move, which she did not accept, and did not want to move when that finally occurred. It was only then that she claimed her back condition was related to her employment. She said in her statement she had to bend from a sitting position to the printer. Her Claim Form says she was squatting to use the printer.

I am not persuaded that the applicant has sustained injury arising out of or in the course of her employment with the respondent. I accept that she had busy days at work, and the respondent’s witnesses conceded she was employed in what Ms Tuwhangai described as a “fairly busy” room. However, Ms Donnelly, who was the applicant’s direct supervisor, has given evidence that while the first couple of hours would be busy, patient numbers would then slow. She would not describe the applicant’s duties as heavy.

Ms Donnelly has also given evidence that it does not often happen that patients lie down to have blood taken or require assistance on and off a bed. She also stated that this assistance would not involve physically lifting or moving a patient. Her evidence about the printer is that it required only limited bending, and she had told the applicant not to use it if it was difficult for her. It is unlikely, in my view, that the applicant was required to repetitively twist and bend throughout the day. Ms Donnelly’s evidence, which I accept, is that the collection chairs are set at an appropriate height, so that minimal or no bending is required.

Dr Khong appears to have accepted the history that the applicant’s employment required her to constantly stand and bend, help elderly patients in and out of bed, and other physically demanding tasks. He recorded that it involved a lot of manual labour and holding herself in abnormal postures for periods of time. I do not accept that that is an accurate description of what the applicant’s duties entailed.

Dr Singh described the applicant’s employment as involving prolonged sitting, repetitive twisting and bending movements. Her own evidence is that she was on her feet all day, sitting “continually” to do paperwork and standing again, leaning over and helping people onto and off the examination bed. I have already said that I am not persuaded that the applicant’s description of her duties is accurate.

Dr Wallace recorded the applicant’s duties only briefly. However, it appears to be an accurate summary. The applicant stated that she took blood, conducted ECG’s and swabs, and did “a fair bit of paperwork”. Ms Donnelly confirmed this was accurate. Dr Wallace recorded that the applicant’s duties included taking blood, doing ECG’s, Holter monitors and blood pressure monitors, as well as computer work. I would accept that, as a medical specialist, Dr Wallace would be familiar with the duties of a pathology collector.

Dr Wallace’s opinion, in any event, was that even if the applicant had been required to bend and twist, her lumbar spinal condition was unrelated to her employment for the respondent. She had not sustained a lumbar spinal injury by way of disease of gradual process. Her employment with the respondent was not the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of her lumbar spinal condition.

Dr Wallace is the only doctor to specifically address the issue of “main contributing factor”.
Dr Khong opined that the proposed surgery was reasonably necessary, resulting from the applicant’s employment, and to which her employment was a main contributing factor (that is, to the surgery). Dr Singh opined that it was “more likely than not” that the conditions of her employment had caused an aggravation of the lumbar spine and her repetitive injuries resulted in the requirement for surgical treatment.

In State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71, Acting President Roche, considering the application of the test in section 4(b)(ii) of the 1987 Act said [at 72]:

“That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence[2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”

The test of “main contributing factor” is more stringent than “substantial contributing factor”, and more demanding to satisfy, as held by Snell DP in Flanagan v NSW Police Force [2017] NSWWCCPD 33, applied in AV v AW. I am not satisfied that either Dr Khong or Dr Singh’s evidence properly addresses the issue of “main contributing factor”. I prefer Dr Wallace’s evidence, and I am not satisfied that the applicant’s employment was the main contributing factor to any aggravation of the underlying disease condition of her lumbar spine. I find that on the balance of probabilities the applicant has not met her onus.

There will therefore be an award for the respondent.

[2021] NSWPIC 191

18 June 2021