German v International Floor Coverings Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	German v International Floor Coverings Australia Pty Ltd [2021] NSWPIC 273
APPLICANT:	Faith German
RESPONDENT:	International Floor Coverings Australia Pty Ltd
MEMBER:	Michael Perry
DATE OF DECISION:	3 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim under section 60 for cost of proposed lumbar spinal surgery for spondylolisthesis condition (condition); significant history of pre-existing symptoms and radiological evidence of the condition; whether employment injury on 3 September 2019 was main contributing factor to aggravation etc of the condition and whether employment materially contributed to the need for the surgery; Held- employment was main contributing factor to a temporary symptomatic exacerbation of the condition, such exacerbation ceasing by 19 September 2019; award for the respondent.
DETERMINATIONS MADE:	1. An award for the respondent.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute “(ARD)”, Fatih German (the applicant) has claimed against his former employer, International Floor Coverings Australia Pty Ltd (the respondent), the costs of and associated with lumbar spinal fusion surgery (the surgery) proposed by his treating neurosurgeon, Associate Professor James van Gelder
(Dr van Gelder).
The claim is made under s 60(5) of the Workers Compensation Act 1987 (the 1987 Act), and put on the basis of alleged injury to the lumbar spine on 3 September 2019 (deemed date). The injury description and cause of injury is put a number of ways. Firstly, that the nature and conditions of his employment as a carpet installer caused aggravation, acceleration, exacerbation or deterioration (aggravation) of an underlying spinal disease, as his duties were arduous, involving lifting, carrying, pulling, pushing and twisting of his torso. Secondly, he alleges he was carrying carpet on his shoulder when climbing stairs and experienced an aggravation to his lower back pain on 3 September 2019.
It is further alleged in the ARD that later that same day, the applicant was kneeling while laying and using a knee kicker to stretch carpet, repeatedly kicking the pad on the knee kicker. This involved “fast twisting of the torso”, and as he rotated his torso to strike with his left knee, he experienced a sharp onset of shooting pain throughout his left knee and lower back. The respondent accepts the applicant injured his left knee on 3 September 2019.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) Whether the applicant sustained an injury to his lumbar spine.
(b) Whether the proposed lumbar spine surgery is as a result of an injury received by the applicant (the parties agree the surgery is otherwise reasonably necessary).

PROCEDURE BEFORE THE COMMISSION

A conciliation and arbitration took place by audio-visual link on 29 June 2021. Luke Morgan of counsel, instructed by Nayven Taouk solicitor, appeared for the applicant. Lachlan Robison of counsel, instructed by Ron Galea solicitor, appeared for the respondent. The applicant attended with the benefit of two Auslan deaf and mute interpreters.
I am satisfied the parties understand the nature of the application and legal implications of any assertion made in the documents. I have used my best endeavours to bring them to a settlement. I am satisfied they have had sufficient opportunity to explore settlement and have been unable to reach an agreement for such settlement.

EVIDENCE

Documentary evidence

The ARD and Reply were put in evidence – with the exception of forensic opinion contained in the reports of Dr Eddie Price dated 26 February 2020 and 27 January 2021. The applicant objected to these reports given regulation 44 of the Workers Compensation Regulation 2016. Mr Morgan submitted that the respondent needed to elect between the forensic medical reports of Dr Graeme Doig on 16 April 2021 and the reports of Dr Price.
Mr Robison submitted that the definition of “forensic medical report” does not include a report from a specialist medical practitioner which had been obtained for the purpose of proving or disproving an entitlement in relation to injury Management and causation, and that causation reports, including from treating practitioners, are commonly admitted. In the alternative, he submitted that the whole of Dr Price’s first (26 February 2020) report should be allowed in as it was for the purposes of injury management and causation. As a last alternative, he put that both reports from Dr Price should be admitted but only as to history, not opinion. Otherwise, he stated he would elect to rely upon the forensic medical report of Dr Graeme Doig.
I did not understand Mr Morgan to strongly oppose Mr Robison’s last alternative, nor the submission as to injury management, but he put that once such report strayed from injury management into causation or other opinion it became inadmissible. I accept Mr Morgan’s submissions in this respect and find both reports from Dr Price are forensic medical reports except for those parts dealing with injury management and/or history. I do not accept the submission that the reports are not forensic, despite containing forensic opinion, because they are part of a report otherwise validly obtained for injury management and/or causation purposes. Mr Robison was not able to point to any authority in support of that proposition.
I do accept Mr Robison’s last alternative and find that the history in Dr Price’s 26 February 2020 report can be admitted into evidence. I find that such history is contained in the content under the heading “Discussion with and examination of Injured Worker” and the first sentence under the heading “On Examination” (Reply 19-21). As to the 27 January 2021 report, the only history is that already appearing in the 26 February 2020 report or taken from documents as described as a “File Review”. This part contains comment as well as opinion. Accordingly, I will not have regard to any part of the 27 January 2021 report.

The applicant’s statement dated 5 March 2021 (statement)

The applicant was born deaf and communicates through visual and tactile modes. He attended high school until year 10, and then completed an apprenticeship in computers for deaf people. Before starting work with the respondent in May 2019 he worked as a general cleaner for about 15 years; vacuuming, mopping, wiping down desks and removing rubbish. He started to have problems with his back and hip from late 2016 and consulted his general practitioner (GP), Dr Emin (Main Street Family Medical Centre “the medical centre”). He “just dealt with the issue and kept working”. He saw Dr Emin again on 1 January 2017 when the results of a CT scan result were discussed and physiotherapy prescribed. He also saw Dr Emin on 6 March 2017 when more physiotherapy was prescribed.
On 17 June 2017, he saw another GP from the medical centre, Dr Hwang. He was hoping to get a referral to a physiotherapist; but was only given a referral for another CT scan and “this was another example of the difficulties I have had to deal with generally, over the years, due to my deafness and in particular with getting my story across to doctors”. On 17 July 2017 Dr Emin noted the applicant was feeling numbness in his legs, particularly down the right side. After that time and up to October 2017, his back pain came and went but he was able to perform his normal work and usual domestic activities.
In October 2017, the applicant discussed the CT scan results with Dr Emin and some potential treatment options. He was told his condition was best dealt with by engaging in particular exercises and weight loss.
Between October 2017 and June 2018, he had “back issues off and on but as before was able to continue working in my physical job as a cleaner … no significant issue with domestic activities”. He saw Dr Emin in June 2018 in relation to low back pain going down his legs, left hip and right knee pain. Between June 2018 and March 2019, he was “generally well and would only experience back pain intermittently … able to keep doing the cleaning work, look after my child and perform my domestic duties without significant issue”. On 5 March 2019, he consulted with Dr Emin about his low back and was referred for a further CT scan “for lumbar spine stenosis”. Although he had some back pain in March 2019, it was not significant and did not prevent him from working “and I had no lengthy periods of time off work … pain did radiate down my leg but only occasionally”.
The back pain he experienced after 3 September 2019 “was similar to that … up to March 2019 but after September 2019 I had it permanently as was the pain going down my leg”. The pain he experienced before the injury in September 2019 “was different … not constant … was periodic … would exacerbate on occasions of increased activity at work but … subside once managed … was manageable such that I was able to obtain work as a carpet layer … very physical job”. Between 12 December 2016 and 5 March 2019, his GP “only ever offered conservative treatment … never referred for specialist opinion … no one ever spoke to me about an operation or that I could not keep doing heavy physical work…” He was consulting his GP then as he “was being cautious of my health … am a new father and husband … needed to provide for my family … being deaf makes employment prospects more difficult ...”
In the months between March 2019 and September 2019 he “did not suffer … any significant back pain”. After commencing employment with the respondent in May 2019, he used hand gestures and writing notes to communicate “with the boss … we could get by but obviously … not as good as having somebody translate”.
While doing manual work as a cleaner “for 15 years before I started as a carpet layer, had not lost any time from work or had to modify my duties”. With the respondent, he was required to install carpets and he often had to carry heavy rolls of carpet up and down stairs, and be involved with regular overhead lifting and carrying and manipulating heavy rolls of carpets on his shoulders, often in awkward, cramped positions. He would need to lift the carpet rolls out of the work truck and carry them into the job, often up or down stairs; and then repeat the process to remove the carpets. He “had no issues performing my very physical duties and was able to keep working without restriction until 3 September 2019”.
On 3 September 2019, after doing the work for about five months “without an issue”, he was carrying a roll of carpet over his shoulders while climbing a flight of stairs and felt a twinge of pain in his lower back. He had experienced similar issues in the past and expected it would go away, so he continued working. Later that day, he was laying carpet, kneeling and using a knee kicker to stretch and fix the carpet in a tight space. This required repeatedly kicking the pad on the knee kicker with his left knee. This involved rapid rotation of his torso to get enough force to hit the pad with his left knee; then a jolting from that impact. Then, he felt an:
“ immediate …aggravation of pain in my back, left knee and elbow, the pain was so bad I couldn’t work … back pain was of a severity I had never experienced before … taken to the emergency department of Auburn Hospital (the hospital) … underwent an x-ray of my left knee … complained of back pain and shooting pain down my leg into my toes”.
He did not have the assistance of a translator at the hospital. This did not help as communication was always difficult, especially in circumstance such as this where he was in an unfamiliar environment and in real pain. He tried to provide details of all his injuries without an interpreter, needing to rely on lip reading and physical gestures to communicate.
He told Dr Emin on 10 September 2019 that he was in “bad pain when bending … back pain was much worse … numbness behind my leg”. Dr Emin sent him for an MRI of his left knee and a CT scan of his back. He also had an MRI of his left knee on 17 September and an injection for that knee on 21 October 2019. He was nevertheless experiencing ongoing pain, swelling and redness in his left knee. He was also referred for an ultrasound and injection of his right elbow around this time as well as a CT scan, MRI and injection to his back.
About 12 October 2019, due to the worsening stabbing pain and continued swelling of his left leg, he returned to the hospital and was referred for a further x-ray of his left knee. On 11 November 2019, he underwent a bone scan which he understood did not show significant findings, then returned to Dr Emin who gave him a referral to consult with Dr Bassam Moses, sports physician. On 18 November 2019, he commenced physiotherapy for his right elbow, left knee and lower back. He saw Dr Moses on 11 December 2019.
Since the alleged injury, his back has continued to be a serious issue. In January 2020, he saw Dr Nazha, pain specialist. He understands this doctor did not note anything about his back; but has stated, “my back was a real issue but as a deaf person it is sometimes difficult to explain my complaints in a clear expression to the doctor”.
The applicant recounted various attendances upon Dr Emin during 2020 until 17 March 2020. Due to his ongoing symptoms, was referred to Dr Van Gelder in April 2020 and “Due to the language barrier Dr Gelder initially only took down the carpet lifting incident but neglected to take down … that I exacerbated my back pain later in the day when I used the knee kicker”. He found the process very frustrating, was getting worse, “and no one appeared to want to listen to the full story or hear all the problems I have been having since September 2019 … despite … I had continued to suffer from ongoing pain in my lower back”.
He had not been able to work since September 2019, care for his son, or provide for his family. Up to then, he was able to work without a problem in probably his hardest job ever.
Dr Van Gelder explained the risks of the surgery and he wishes to proceed with it.

Auburn District Hospital records including clinical notes

The following summarises notes of the applicant’s attendance at the hospital on 3 September 2019 as follows:
“… triage … 03/09/2019 10:47 … tender on lft lateral knee/DEAF/MURTE (sic) … presented with Lft knee pain / ? twisted while at work … works as carpet layer … stated had similar injury with lft kene (sic) … AUSLAN interpreter contacted – will call back in 1 hr … triage visit reason: injury – lower limb … 12:41 AEST … nurse … s/b Dr Christian given 5mg … Endone with good effect … communicating with pt on paper … difficult history as patient deaf and mute. History written … working as carpet/rug layer today and hitting left knee with tool around 09:00 … onset of pain … difficulty walking/weight bearing … not able to drive normally secondary to pain … notes some back pain in addition – unable to ascertain if new or existing … shoots down leg to toe (S1) distribution … feels that something has stretched … PMHx … similar history previously … ? sciatica … tender on palpation … medial aspect of knee … left knee – decreased ROM – tender on flexion … no tenderness on palpation of back … clinical impression … knee injury – work related … discharge … 14:24 AEST …”
On 12 October 2019, the applicant returned to the hospital, having been referred that day by Dr Emin. The discharge summary notes the applicant having attended for left knee pain and:
“… deaf and mute man …communicated by lip reading and writing … injured L knee at work in early September … presents today as the knee is still painful …taking Panadol Osteo … no fevers/chills/sweats …occasional grabbing and stabbing pain … no locking or clicking, not even when walking up or down stairs … sometimes …wakened during … night with pain that the knee feels stiff and difficult to move … GP has arranged an appointment with Dr Ed Graham orthopaedic surgeon …14/10/2019 … alert and communicative using lip reading and written communication … can walk with an antalgic gait and protector attitude … L knee exam … clinical impression … existing work-related knee injury…”
On 27 December 2019, the applicant again attended the hospital. Hospital staff noted:
“… knee pain … left knee injury 3/12 ago at work … taking Panadol Osteo … physio review under WC … noted pain and swelling on medial side of … knee for last week after physio session … no recent trauma or fall … past … history knee injury … alert, not in distress … left knee … mild swelling … tender medial ligament … clinical impression … knee pain …”
There were other visits made by the applicant to the hospital that relate to matters other than his back or left knee. On 17 August 2017, he attended the hospital with fever and had general unwellness, “pointing chest” and headache. There was another admission on 12 March 2018, when he attended complaining of gastro-type symptoms; and also on 22 July 2019 when he provided a history of having had fever for three days, with coughing and vomiting. He also attended the hospital on 4 April 2020 complaining of ear problems.

Clinical notes of Main Street Medical Centre and Dr Alaadin Emin

The applicant consulted Dr Emin on 21 December 2016 complaining of low back pain radiating to his right hip. Dr Emin then advised him not to lift or carry heavy weights, nor to bend or twist frequently, and to engage in rest and specific exercises. There was a similar consultation with Dr Emin on 10 March 2017, although at this stage, tenderness at the applicant’s left sacroiliac joint was noted.
In June 2017, Dr Hwang saw the applicant and referred to “acute on chronic back pain … nil apparent trauma/injuries”. Dr Emin then saw the applicant again, with a similar presentation, on 2 October 2017 and 17 October 2017. A complaint of left hip pain was also noted by Dr Emin on 19 March 2018; and of “pain around left SIJ area” on 9 April 2018. On 11 June 2018, Dr Emin noted the applicant complaining of low back pain radiating to his legs with occasional pain in his left hip and right knee and also recorded “ac on ch lbp (sic read as acute on chronic low back pain) radiates to legs…not to lift or carry heavy weights…not to bend or twist or frequently”. Dr Emin created a medical certificate this day marking the applicant unfit for his usual occupation on 12 June 2018 (ARD 257 and 712).
Dr Emin was again consulted by the applicant on 25 June 2018 when the right knee and left hip x-ray results were discussed and he was again advised not to bend or kneel frequently, nor to stand or walk for more than 15 minutes.
On 28 January 2019, Dr Emin noted the applicant’s “left hip pain getting worse”. On 5 March 2019, the applicant again consulted Dr Emin about his low back pain. He was referred for a CT scan. The 7 March 2019 CT scan (clinical note reading “lower back pain getting worse”; Reply 36) is reported as showing “bilateral L5 pars defects with grade 1-2 anterolisthesis of L5 on S1 and likely irritation of the nerve roots”. An earlier CT scan, on 14 June 2018
(Reply 34-35), also reported pathology as follows:

“… moderate to severe left L5-S1 neural foraminal stenosis … and likely irritation of both nerve roots … grade 1 anterolisthesis of L5 on S1 with bilateral L5 pars defect …”

On 7 September 2019, the applicant attended upon Dr Emin complaining of left knee pain. There appears no record of a complaint about any back pain. Then, on 10 September 2019, he attended Dr Emin who noted “left knee x-ray results discussed, still has a lot of pain, especially … when bending back pain is getting worse and numbness behind the legs …”
On 19 September Dr Emin wrote a medical certificate marking the applicant as having no current work capacity to 26 September 2019 on the basis of work related left knee and right elbow injuries (ARD 68-70). On 21 September 2019, he saw the applicant again and noted discussion regarding the “CT LSS … US right elbow and MRI left knee results discussed … for US guided injection to right elbow and CT guided injection to L5 area”.

On 5 October 2019, Dr Emin wrote another medical certificate marking the applicant as having no current work capacity to 19 October 2019, this time on the basis of a work-related left knee injury only (ARD 71-74). On 12 October 2019, Dr Emin wrote a letter to the “Dr on call Auburn Hospital” noting that he had seen the applicant that day and that the applicant “still has pain and redness with swelling in the left knee, occ temperature as well, for (further) treatment please …”
On 13 November 2019, Dr Emin noted the applicant consulted him complaining of more left knee pain, and this involved an ambulance, and that he “still has pain in left knee and keeps falling at home … not happy with physio, going to have chiro … occ fever temp 37.2 … pain in various body parts as well …”. There appears no mention about the back at this time.
On 4 December 2019, the applicant saw Dr Emin who noted he “may need sport physician or orthopaedic knee specialist as Dr Graham is general ortho … pain in left knee got worse … right shoulder and right elbow is not better either … US guided injection to right shoulder and right elbow …”. There does not appear any reference to the low back at this time. Dr Emin noted on this occasion “with Lauren Dennis from ors and sign language interpreter”.
On 22 January 2020, the applicant saw Dr Emin who noted his “left knee is getting worse … Dr Nazha and Dr Moses reports discussed in detail …”. There is no mention of the low back on this occasion. On 25 January 2020, the applicant saw Dr Emin who noted complaints of “left knee and small lb pain … tender at medial side of left knee …” On 4 February 2020, the applicant saw Dr Emin who noted “ongoing left knee and lower back pain”.
On 19 February 2020, the applicant saw Dr Emin who the noted “lbp intermittent more at day time, numbness in left leg, had chiro … knee pain is not better either … had new MRI lss yesterday”. On 22 February 2020, the applicant saw Dr Emin who noted “headache left knee pain and lower back pain”. On 25 February 2020, the applicant saw Dr Emin who noted
“Dr price called … condition is discussed … his back injury is since 2017 … his left knee injury is since 09/2019 … he is not able to work now …” On 27 February 2020, the applicant saw Dr Emin who noted that the applicant’s “back pain is getting more worse with movements … night time pain as well … more pain in left knee despite rest and analgesia”.
Dr Emin also prepared a report, addressed to the applicant’s solicitors, dated 22 September 2020. Dr Emin’s “diagnosis” was “lower back pain and left knee pain”. He was of the opinion that “the incident of 3 September 2019 (was) the main contributing factor to the aggravation … of the applicant’s lumbar spine condition”. He was asked to provide reasoning for this opinion, but did not do so. He agreed with a question about whether the “mechanism of our client’s injury consistent with the history provided (sic)?” Again, he was asked to give reasons for this opinion, but did not. He was also asked about whether the applicant’s lumbar spine complaints were “as a result of the workplace incident … on 3 September 2019? If so, please provide your reasoning”. He answered “it was aggravated”.
A question was also asked of Dr Emin as to whether the employment “materially contributed to the need for the recommended … lumbar fusion”. The doctor stated that he would “leave that to Dr Van Gelder to decide”. He similarly left the question of whether and why the proposed surgery was reasonably necessary “to be answered by … Dr Van Gelder …”
Dr Emin also wrote further workers compensation medical certificates (dated 19 October, 25 November 2019 and 22 January 2020) certifying the applicant as incapacitated for work due to a work related left knee injury. From 22 February 2020, Dr Emin similarly wrote further certificates up to 20 July 2020 but including reference to a work related low back injury.

Dr Bassam Moses, sports & exercise medicine physician

On 11 December 2019, Dr Moses reported to Dr Emin, who had referred the applicant to him. He took a history that the applicant
“injured himself on 3 September 2019 kneeling on his left knee … felt a sudden sharp pain in a twisting episode while he was preparing carpet … pain is predominantly medial sharp and aching without any neuropathic component … no paraesthesia in his lower limb … no locking, catching, but does have instability and has fallen on two occasions … no hip pain”.
On examination, Dr Moses noted that the applicant “walks with a full weight bearing non-antalgic gait … limited by pain with flexion in his left knee …” Dr Moses noted that he explained to the applicant that “he most likely has suffered a low grade medial … ligament strain with his initial injury”. There does not appear to be any reference to any back injury or symptoms or problems in this report. Dr Moses referred the applicant to a physiotherapist.

Dr Alan Nazha, pain specialist

Dr Emin referred the applicant to Dr Nazha, noting “past history, allergies and current medications. Worsening left knee, left elbow and right shoulder pain”. Dr Nazha reported to Dr Emin on 8 January 2020 that he had seen the applicant the same day “in attendance with his wife… rehabilitation provider, as well as an Auslan interpreter", and the applicant was:
“a pleasant 41 year old gentleman who had a work related injury … as a carpet installer … affected his left knee whereby he felt a locking sensation … left knee gave way as he twisted upon it … persistent medial knee pain ever since … at rest he does not have significant pain affecting his knee, however, with even light touching over the medial aspect of his knee … result in exquisite pain, and electrical shooting sensation across the inferopatellar region and down his left leg in the distribution of the saphenous nerve … does not go into his foot and beyond however (emphasis added)”.
Dr Nazha appears to have undertaken a detailed examination, noting his report of 8 January 2020. His impression was that the applicant’s pain related to two likely issues; an injury to the medial collateral ligament; and also of neuropathic pain involving the saphenous nerve.
Dr Nazha saw the applicant again on 5 February 2020. There is no mention of any back pain in his ensuing report. Dr Nazha saw the applicant again on 7 April 2020 when he noted:
“has had an MRI of his lumbar spine referred by yourself and he explains he does have some lower back pain that does radiate down his left thigh which was not previously brought to my attention. My initial assessment did not show any evidence of radicular pain when he was asked in order to ascertain whether he had an L3 radiculopathy to explain his knee pain. He advises that he has seen Prof James van Gelder who is highly regarded…”
Otherwise, the examination seems to have been only in relation to the applicant’s left knee. His impression was that the applicant’s “pain complaint relates to two likely issues … first … injury to the medial collateral ligament … second being that of neuropathic pain likely due to the saphenous nerve …” There does not appear mention of low back pain in this report.

Dr van Gelder treating neurosurgeon, reports 15 September 2020 and 9 March 2021

A letter of instructions from the applicant’s solicitor dated 1 April 2019 (sic, read as 2020) including a chronology was sent to Dr van Gelder. The letter of instructions notes that the request for the report related to investigation of the applicant’s compensation entitlements, and that “due to our client being deaf and having to rely on Auslan interpreters there have been incidents of miscommunication and misreporting by treating doctors… the below mechanism of injury has been confirmed … as the superseding correct version of events”. The letter goes on to set out that “mechanism of injury” similarly to the ways such is alleged in the ARD. The letter also notes an appointment for the applicant to see Dr van Gelder on 22 June 2020 when an Auslan sign interpreter would also be able to assist.
The applicant initially consulted Dr van Gelder on 3 April 2020. This led to a report from
Dr van Gelder dated 6 April 2020, addressed to Dr Emin. At that stage, Dr van Gelder reported that the applicant
“explained that he hurt his back whilst at work on 3/09/19 … was carrying carpet up stairs on his shoulder … sudden onset of low back pain … symptoms worsened over the next few days … feels that he has separate painful condition affecting his medial left knee … has been working in the carpet industry since May 2019. He found the work heavy”.
Dr van Gelder and the applicant were assisted with an Auslan interpreter on this occasion.
In his 15 September 2020 report, Dr van Gelder noted he initially saw the applicant on 3 April 2020, when the applicant complained of back pain and left knee pain, and most recently saw him on 10 September 2020. The doctor took a history that the applicant “explained” he was carrying a carpet in a roll upstairs when he had a sudden onset of back pain, kept working, hoping it would improve and, later that day, while using a knee kicker, he was twisting and during that activity he “strained his knee and further aggravated his back condition … was limping with knee pain and this further strained his low back”. Dr van Gelder also took a history that the work with the respondent generally involved heavy work involving carrying carpet up and down stairs in awkward places and laying the carpet. He also noted the applicant had “some episodes of low back pain … (and) … some prior scans” before he started work with the respondent. The doctor noted the back pain was treated with physiotherapy and improved, and had resolved before the applicant started working in the carpet laying business and up until September 2019. I also note that the letter of instructions to Dr van Gelder included the chronology.
After noting the examination carried out, the history and radiological findings, Dr van Gelder opined that the applicant “has spondylolisthesis at L5-S1 … causing nerve compression and sciatica … (and) causing back pain”. He noted that the applicant had a left knee injury which was outside his area of expertise. He was asked whether “the incident of 3 September 2019” was “the main contributing factor to the aggravation … to the … lumbar spine condition”. The doctor stated that on the basis of the history available to him the applicant:
“had a work related injury on 3 September 2019 … caused an aggravation of his pre-existing spondylolisthesis … caused the onset of permanent unmanageable back pain and sciatica … spondylolisthesis is a condition that can be present and cause intermittent or manageable back ache for many years … can worsen over time to cause intolerable back pain and sciatica … had a long history of active manual work with intermittent symptoms prior to starting work as a carpet layer and initially was able to cope with the work satisfactorily … heavy awkward lifting, overhead lifting and carrying a carpet on his shoulders in awkward positions are mechanisms that can significantly aggravate spondylolisthesis and disc bulging … and aggravate nerve compression … possible to speculate that without working as a carpet layer and having the incident on 3 September 2019, Mr German may have continued to have spondylolisthesis that was only causing intermittent unmanageable symptoms for some years into the future”.
Dr van Gelder was asked as to whether the mechanism of the injury was consistent with the history provided. He stated the applicant provided a consistent history, physical examination and radiological studies and “on the basis of this, the mechanism of the injuries sustained on 3/09/19 is consistent with being a cause of permanent aggravation of his back condition”.
Dr van Gelder went on to state that the:
“… nature of his work as a carpet layer and the accident … on 3/09/19 caused the need for …lumbar fusion operation. If these factors had not aggravated his spondylolisthesis it may have been some years before his symptoms deteriorated to the point where he developed permanent sciatica and sharp back pain and needed surgical treatment”.
On 17 February 2021, the applicant’s solicitor wrote to Dr van Gelder enclosing a copy of various documents including the reports of Dr Price of 26 February 2020 and 27 January 2021 and the statement. He was also provided with various other treating reports, including from Drs Moses, Nazha, radiological and hospital notes. His attention was also specifically drawn to “the chronology of pre-existing medical complaints provided to you in our letter of instructions dated 1 April 2020”. Dr van Gelder then prepared a further report dated 9 March 2021. He again opined that on the basis of the history available to him, the applicant had a work-related injury on 3/09/19 which caused an aggravation of his spinal disease. He noted he had considered the clinical notes from Dr Emin who had reported pre-existing low back pain between 2017 and March 2019, that such report was consistent with the history provided to him by the applicant and that the previous low back pain was intermittent and manageable and he had a long history of active manual work as a cleaner for 15 years before starting work as a carpet layer. Then after changing jobs, he was initially able to cope with the new job satisfactorily.
Dr van Gelder opined that heavy duties such as carrying awkward heavy roles of carpet up and down stairs, overhead lifting and carrying a carpet on his shoulders in awkward positions are mechanisms that can aggravate spondylolisthesis, disc bulging and nerve compression. He stated that eventually, the carpet laying work activities in general and the specific incident in early September 2019, precipitated the applicant’s permanent back and leg pain and the pain became unmanageable, and this gave rise to the need for surgery. He said “without the work-related aggravation, surgery may not have been necessary for years into the future”.
Dr van Gelder stated that he disagreed with Dr Price’s opinion “that … employment … is not a major contributing factor to the aggravation and progression of his … spondylolisthesis …” He stated that when such condition is symptomatic, the natural history of it is that
“sufferers often have many years of manageable back pain … can progress and become more unstable with further disc injury, disc degeneration or herniation … instability results in one vertebrae shifting forward on the vertebrae beneath … impacts and compresses the nerve roots at that level … back pain and sciatica can worsen and become persistent … may become unmanageable and surgery … is necessary to stabilise the slipped segment and relieve … nerve pressure … gave a clear history of heavy awkward lifting of carpets, carrying rolls of carpets up and down the stairs … likely to have permanently aggravated his spondylolisthesis and caused permanent and unmanageable symptoms …”

Associate Professor Nigel Hope, orthopaedic surgeon, reports 23 June 2020, 16 November 2020, 2 March 2021 and 9 March 2021

Dr Hope was engaged to provide expert reports at the request of the applicant’s solicitors. He saw the applicant on 22 June 2020 and had the assistance of an Auslan sign language interpreter. He took a history that on 3 September 2019 “carpet was being laid whilst in the typical kneeling lumbar flexed position … knee kicker was repetitively struck with the left knee. During one impact, the body twisted and a left knee and lumbar pain was felt”. He noted the applicant saw Dr Emin, Dr Moses and Dr Nazha. He also noted “lumbar spine continued … Dr van Gelder … initially prescribed non-operative treatment”.
Dr Hope also took a history that prior to 3 September 2019, the left knee was symptom free, and that “the lumbar spine was not symptomatic, did not require medical assessment, was not investigated, was not diagnosed and not treated”. On examination, Dr Hope noted a left low constant severe stabbing pain in the lumbar spine that was worse with prolonged sitting and better when changing positions, and a moderate rest pain with sleep disturbing pain, moderate stiffness and left sciatica extending to the lateral left thigh and knee. He also noted the 30 January 2020 MRI showing bilateral pars defect with grade 1 anterolisthesis with left foraminal stenosis and a CT scan of the lumbar spine on 17 March 2020 with similar findings.
Dr Hope diagnosed a permanent aggravation of spondylosis (with spondylolisthesis). He analysed that the applicant had a pre-existing lumbar spondylolisthesis but that this was not symptomatic and did not require medical assessment, nor was it investigated, diagnosed or treated, and “therefore, it is largely irrelevant”. He opined that “on 3 September 2019, the left knee and lumbar spine were injured whilst laying carpet, and that lumbar spinal surgery is required and such requirement is work related”. He also opined that the main contributing factor to the lumbar spine injury was the incident on 3 September 2019. As to mechanism, he wrote that such was consistent with the history provided and that kneeling in a flexed position using a knee kicker put significant tortional loads on the lumbar spine. He also wrote that the employment “permanently aggravated pre-existing spondylolisthesis”.
On 2 November 2020, the applicant’s solicitor wrote to Dr Hope, noting his 23 June 2020 report, and requesting a supplementary report on the basis that “you did not possess the complete clinical notes and as such you were not aware of pre-existing complaints of lumbar spine pain” at the time of his 23 June 2020 report. The applicant’s solicitor then provided a copy of the said clinical notes and also “a chronology of the complaints contained therein”. The applicant’s solicitor also stated to Dr Hope that his:
“reporting of our client’s back injury is incomplete. We assume this is due to the difficulties in our client comprehensively and correctly expressing himself, being deaf … note below there was a precipitating event that caused the back pain to manifest prior to the use of the knee kicker … we have the benefit of the Dr van Gelder report dated 15 September 2020”.
The applicant’s solicitor then went on to set out a history which included the applicant carrying rolled carpet over his shoulders while climbing a flight of stairs on 3 September 2019:

“which resulted in lumbar spine pain … client felt pain but believed it would subside … continued working that day and when carpet was being laid in the typical kneeling lumbar flexed position … knee kicker … repetitively struck with the left knee. During one impact, the body twisted … exacerbated his lumbar spine pain … two former events on 3 September 2019 aggravated … lumbar spine condition … following this … client developed the antalgic gait … left knee was also intermittently unstable leading to instances of falling which contributed to the aggravation of his lumbar spine pain.”

Dr Hope reported again on 16 November 2020, with no further examination but with the benefit of the 2 November 2020 letter of instruction. He maintained his diagnosis of permanent aggravation of lumbar spondylolisthesis and in response to a question as to whether his opinion would now change from that expressed in his 23 June 2020 report, in the light of the “complete clinical notes”, Dr Hope stated that:
“the incident of 3 September 2019 is a main contributing factor to the acceleration of lumbar spondylolisthesis … whilst the condition was pre-existing, a significant work related event on 3 September 2019 caused a significant increase in pain requiring further treatment”.
Dr Hope also dated that the mechanism of injury was consistent with the history provided, reasoning that “carpet laying uses a typically kneeling lumbar flexed position and a knee kicker to repetitively strike the carpet … tortional lumbar injury caused a permanent increase in lumbar pain in this event”. Dr Hope also maintained that “the employment on 3 September 2019 materially contributed to the need for surgery”.

Dr Hope prepared a third report on 2 March 2021 after being again asked by the applicant’s solicitor to clarify his earlier reports, and having been provided with the reports of Dr Price of February 2020 and January 2021. While acknowledging that Dr Price was a senior and well regarded occupational physician who provided a thorough and detailed review of the situation in his reports of 26 February and 27 January 2021, and that Dr Price’s view “is one way of looking at the situation”, he maintained his earlier opinion and stated that he also provided a detailed analysis “from an orthopaedic surgical perspective … these reports indicate that the incident … was the main contributing factor to an acceleration of lumbar spondylosis … then caused a significant increase in lumbar pain and further treatment … required … opinion … remains unchanged …” (emphasis added).
Dr Hope was asked by the applicant’s solicitor to prepare a further report. He did so on 6 May 2021. The request related to Dr van Gelder’s report of 9 March 2021. Asked whether he agreed with Dr van Gelder that heavy strenuous manual work, carrying awkward heavy rolls of carpet up and down stairs, overhead lifting and carrying a carpet on his shoulders in awkward positions were mechanisms that could aggravate the relevant injury, he stated that “performance of heavy duties results in significant increases in axial loading of the lumbar spins resulting in an aggravation of spondylolisthesis”.
Dr Hope was then asked whether he agreed that the lumbar spine condition was caused as a consequence of both the “work activities in general … up to 3 September 2019” and the “two specific incidents on 3 September 2019”. He answered that
“your client’s lumbar spine condition was a consequence of carpet laying activities in general up to 3 September 2019 and the two specific incidents of 3 September 2019 … caused by a combination of the nature and conditions of employment and the two frank incidents … caused a permanent aggravation of pre-existing spondylolisthesis”.
Dr Hope also stated that without such factors, the applicant “would likely have had intermittently symptomatic spondylolisthesis”.

Dr Eddie Price, occupational physician, reports 26 February 2020

Dr Price saw the applicant for an injury management consultation on 25 February 2020. He attended with his wife, who was noted to also be deaf; and with an Auslan interpreter. Dr Price noted the applicant reported that “prior to the accident he would go to a fitness centre in Auburn and do swimming, wresting, boxing and karate as different sports”, and that he was last at the fitness centre in December 2019. Dr Price also noted the applicant “denied any problem prior to the injury with his low back … denied having x-rays of his low back or CT scan prior to the injury in early September 2019”.
Dr Price recorded that the applicant “initially injured his knee whilst using tools at work … pain in his left knee and attended … Hospital … where they diagnosed knee pain …” Dr Price noted that the applicant reported he then attended Dr Emin, “who he claims he has been attending for years … noted from the file that he did have a CT of the lumbosacral spine on 13 September 2019 …” Dr Price then noted the applicant was referred to Dr Graham in November 2019 in relation to ongoing concerns with his left knee and was also referred to Dr Nazha regarding his left knee. Dr Price noted “he states that both his back and left knee are the same as they were at the beginning”.
The applicant was also said to have reported “he has a misalignment of the lower back and pain in the very centre of the back … rates the pain as 8/10 and he states it goes up and down”. Dr Price rang Dr Emin about the applicant and, inter alia, was told by Dr Emin that the applicant did have a prior back problem and CT scan and such was documented.

Dr Azhar Khan, occupational physician

Dr Khan reported to Dr Emin on 23 September 2020, after the applicant had been referred to him by Dr Emin. It appears that Dr Khan and the applicant were assisted by an Auslan sign interpreter. Dr Khan took a history that the applicant injured his low back at work in September 2019; and that his normal duties required him to carry out manual handling; and that he recalled developing acute low back pain while he was lifting carpet at work with shooting pain into his left knee.
Dr Khan understood staff at the Hospital “did not fully understand his clinical presentation as Mr German is hearing impaired”. He took a history that the applicant had constant lower back pain and developed radiating lower back pain whenever he got out of a chair or walked. He found the applicant had “chronic lower back injury … with lumbo-sacral radiculopathy”. Dr Khan noted the applicant stated he was physically fit before the September 2019 injury, and did not have any prior history of low back injury or surgery.

Dr Graeme Doig, orthopaedic surgeon, report 16 April 2021

Dr Doig was engaged by the respondent’s solicitor to provide a forensic opinion. He examined the applicant on 12 April 2021. He noted various material had been provided and which he had taken into account. This included the statement, the various radiological material and reports from Dr Graham, Emin, Moses, Nazha, Price, van Gelder, Hope, and the 12 October 2019 discharge summary from the Hospital.

Dr Doig recorded a history of the applicant injuring “his left knee … then carried a carpet upstairs with a work colleague and suffered worsening pain … he also alleges to have suffered a back injury at that time”. Dr Doig then noted the applicant attended at the hospital “however there were communication difficulties … does appear to be some reference with respect to a back problem in the medical records of 3 September although nothing in the general practitioner records of 10 September 2019”.
Dr Doig then stated that “on direct questioning Mr German denied any previous problems or injuries to his spine which appears to contradict the medical records … he again pointed out that he had suffered no problems previous while working in a self-employed cleaning business”. The applicant complained to this doctor of lower back pain which was constant and radiated primarily down the left leg, with weakness in his foot and ankle. On examination, Dr Doig noted an “obvious limp through the left leg”.
Dr Doig noted the applicant “maintains he injured his lower back while carrying the carpet upstairs. This needs clarification”. He opined that the applicant experienced ongoing spinal problems as a result of the pre-existing spondylolisthesis. He thought the applicant’s presentation and “apparent significant restrictions did appear rather excessive, presenting with a degree of functional overlay” but there was no doubt the applicant did suffer from a significant pathological spinal condition which did have a propensity to cause severe back pain; and the applicant “may simply have a fear inhibition of provoking his pain…”. Dr Doig still thought there appeared to be an inconsistency with the degree of restrictions in the spine “for the reasons previously stated” (implying any such inconsistency may not be deliberate).
Dr Doig found there was severe pre-existing pathology in the lower back and no definite evidence of further injury on 3 September 2019. He conceded there “may have been a temporary symptomatic exacerbation” and based on the documents, there was a long history of back problems with spondylolisthesis demonstrated on scans as far back as 2017. He opined that the employment was not a substantial contributing factor to the current condition.
Dr Doig was also asked as to whether the applicant suffered an aggravation of a disease and if so, whether the employment was the main contributing factor to such aggravation. He stated “if indeed there was any injury to the lower back in the incident … in my opinion was a temporary symptomatic exacerbation only, based on the documentation supplied”. He thereafter confirmed that he believed “any symptomatic exacerbation would have resolved to its preinjury status”. He was also asked whether there was any causal connection between the applicant’s alleged injury to the lumbar spine and the accepted injury to the left knee. He opined that there did not appear to be such a connection. He said there was no evidence that the need for surgery was a result of the incident on 3 September 2019, as the applicant had been suffering from a longstanding back problem as a result of the pre-existing condition.

Oral evidence

Each party stated they did not wish to adduce any oral evidence or cross examine any witness.

SUBMISSIONS

Submissions for the applicant.

The determination ultimately rests on the analysis of the medical evidence against the background factual information. The applicant’s statement represents his background information, and there is no alternative scenario apart from what appears in clinical notes. Caution should be exercised in dealing with clinical notes of treating doctors for the reasons expressed in Davis the Council of the City of Wagga Wagga [2004] NSWCA 34.
The applicant was engaged in extremely heavy employment for many years, and was able to cope with that work, although experiencing an occasionally symptomatic lumbar spine. He was then able to work as a carpet layer in May 2019, and cope with that work for some months until 3 September 2019 at which stage he suffered the injury and needed to attend the hospital complaining of left knee and back pain. Since then he has been unable to work.

The applicant’s presentation and history giving should be looked at in the context of difficulties he has had his whole life in terms of communication because of his deafness. Even when he has had the benefit of Auslan interpreters at medical examinations, the subtlety and the nuance required in such history giving and or taking must still be lacking. His statement provides helpful background in terms of his work history, performance of work over many years up to 3 September 2019, the detail of injury then, and his later progression.

Dr van Gelder, is the only neurosurgeon in the case. Dr Doig describes himself as involved in general orthopaedics and trauma. Dr Price is an occupational physician and Dr Hope is an orthopaedic surgeon. Dr van Gelder’s reports are well reasoned and provide a clear delineation between the applicant’s symptoms and circumstances before and after the alleged injury in September 2019. In comparison, it is curious that Dr Doig takes a history that the applicant had no pre-existing back pain - unless that could be understood as meaning that his back pain was not symptomatic at or about the time of the incident.

The decision in Murphy v Allity Management Services Pty Ltd [2015] NSWWCC 49 is relevant. Dr Doig’s opinion is problematical. At Reply page 30, he applies the wrong test by referring to employment not being a substantial contributing factor to the current condition; also by not providing any reasons when opining that any injury was just a temporary symptomatic exacerbation only based on the information supplied. There is also a problem with this opinion because he otherwise opines that the employment was not the main contributing factor to the disease or underlying condition – rather than the aggravation of that disease or underlying condition. Nor does he specifically turn his mind to the extent to which the aggravation relevantly contributes to the need for surgery.

It is not enough to simply say that any aggravation or exacerbation has ceased, without any depth or explanation to that, in circumstances where the applicant has had pre-existing symptoms for many years before September 2019, so involving exacerbations or aggravation of the underlying condition, yet has managed to continue on at work; in comparison to him not being able to work at all since the September 2019 injury.

Given the nature of the relevant work, involving carrying heavy carpet and banging his knee in laying the carpet, together with his pre-existing condition, it is unsurprising there has been the aggravation since September 2019 and continuing.

There should be a finding that the employment was the main contributing factor to the aggravation of a disease as identified by Dr van Gelder. The argument there was a consequential lumbar spine injury as a result of injury to the left knee is not pressed.

Submissions for the respondent

Liability for any lumbar spine injury as disputed. Alternatively, if any such injury be found, it would only be a fleeting exacerbation which would have fallen away by the time it could be said to be relevant to any need for lumbar spine surgery. It is accepted that the proposed surgery is reasonably necessary, but not as a result of an injury received under the 1987 Act.

The history of relevant back problems is lacking in the applicant’s case. The clinical records show a substantial history of back problems including radicular symptoms. The applicant’s submission that the ongoing incapacity for work since 3 September 2019 supports his case that the aggravation is ongoing is incorrect because the applicant has been paid weekly compensation voluntarily by the insurer since that time on the basis of the left knee injury.

While the statement does give a reasonable history of previous back problems, this history was not given to all doctors. His statement shows that before September 2019, he had not only suffered back pain which “came and went”, but also radiculopathy symptoms. His statement that he did not have difficult problems between March and September 2019 militates against the allegation that the nature and conditions of the employment with the respondent during that period caused any problem or injury to his back.

The applicant states that the injury on 3 September 2019 created a level of back pain he had never experienced before. This raises his point that he has difficulty communicating because of his deafness. If it were the case that the back pain was then so great, one would have expected such complaints to have been recorded by hospital staff. But the only record of complaint of back pain was a relatively minor symptom in comparison to the reported left knee symptoms. Hospital staff noted that while his left knee was tender on palpation, palpation of his low-back did not produce tenderness. This contradicts his statement that his back pain that day was the worst he had ever experienced. There are similar issues in the histories he has provided some medico-legal examiners.
Dr Khan, occupational physician, saw the applicant in September 2020, referred by Dr Emin. Dr Khan’s 23 September 2020 report does not assist the applicant’s case. It is not contemporaneous to September 2019 and he does not express an opinion on causation. He only records what the applicant said to him about the alleged injury.

Similarly, the report of Dr Emin is of no assistance in relation to the issues in the case. He only gives very short answers without reasoning, in some cases only one word answers. In terms of the question of whether the employment has made a material contribution to the need for surgery he does not provide an opinion and leaves it to Dr van Gelder.

Dr van Gelder’s report of 15 September 2020 is lacking because there is an incomplete history, particularly in relation to records of back problems. For example he only notes that the applicant had “some episodes of low back pain” before starting work as a carpet layer. This does not adequately grapple with the full extent of the applicant’s back complaints and problems before commencing work with the respondent. Such inadequacy undermines his later opinions on causation. Even though the ARD attaches a letter that appears to have been sent to Dr van Gelder, and which includes a chronology of the previous back problems, there is still a problem with the report because it is not clear whether or not he read that letter/chronology and or took it into account. The reasoning in this respect is inadequate.
The reports of Dr Hope are confusing. His first report refers to “the incident”. It is unclear whether this refers to the applicant carrying the carpet or the nature and conditions of the work, or to using the knee kicker. There is a further problem in this report because of his reference to “a main contributing factor”. This could refer to a number of contributing factors without being clear which was “the main” contributor. Dr Hope states the mechanism of injury is consistent with the history given, but does not clarify what mechanism of injury he means.

Dr Hope’s opinion (ARD 47) that the employment materially contributed to the need
for surgery is without any reasoning. In his 6 May 2021 report, he commented on
Dr van Gelder’s report and opined that the applicant had suffered injury as a result of the nature and conditions of his employment as well as the two incidents on 3 September 2019. This is confusing and also contradicts his first report which referred to “the incident” being the injurious event. He opined that had it not been for the nature and conditions of employment and the two incidents, he would have only had an intermittently symptomatic spine.

The report of Dr Moses of 11 December 2019 (ARD 67) contains no reference to any back injury at that time. There are various medical certificates (ARD 68-76) which also do not contain any reference to back injury, only to the applicant’s right elbow or left knee.

The reports of Dr Price set out the history. Firstly at Reply page 11 history is set out, particularly noting the content on pages 13-14 under the heading “Continuing Review of Multiple Documents Provided”. This shows the radiology and back problems before working with the respondent.

The respondent relies on the opinion in the report of Dr Doig commencing at Reply page 24. Although Dr Doig does state that there “may” have been an aggravation, this statement is below the civil standard of proof and should not be taken as a concession that an injury within the meaning of the legislation did occur. In the alternative, Dr Doig later makes it clear that even if there was an injury, it was only a temporary exacerbation. Even though Dr Doig does accept that the surgery is reasonably necessary per se, his evidence is that such necessity is not as a result of an injury received by the applicant – either because the injury never happened in the first place, or if it did, any aggravation ceased before the need for surgery became relevant and/or did not materially contribute to that need.

Various pages should be considered in terms of assessing the issues in the case otherwise including ARD pages 26, 77, 249, 251, 252, 254, 256, 257 and Reply pages 34-36.

The mechanism of injury, as noted by Dr Doig is not consistent with a back injury. There is only scant record of injury on 3 September 2019. At that time there was no account of significant back pain. As to the applicant’s submissions regarding communication problems because of his deafness, he has demonstrated over many years that he has been able to deal and communicate with doctors and hospitals nevertheless.

The applicant carries the onus of proof and it has not been discharged.

FINDINGS AND REASONS

The first issue – did the applicant sustain an injury to his lumbar spine?

There are inconsistencies between the statement and the medical and hospital records, including the expert medical evidence. The applicant stated that on 3 September 2019, he experienced an “immediate significant aggravation of pain in my back, left knee and elbow, the pain was so bad I couldn’t work … the back pain was of a severity I had never experienced before … taken to the emergency department … (emphasis added)”.
I agree with the submission for the respondent that one would have expected such a symptom to have been recorded by hospital staff, and the record is inconsistent with what the applicant has stated. Hospital staff noted “some back pain in addition (to left knee pain) … unable to ascertain if new or existing … shoots down leg to toe (S1) distribution … feels that something has stretched … similarly history previously … ? sciatica … no tenderness on palpation of back” (emphasis added).

I accept that these notes are consistent with the applicant suffering “some” back and leg pain or symptoms on 3 September 2019. But it is unclear whether such back pain was “new or existing”. It did “shoot … down leg to toe (S1) …”, suggesting radiculopathy, although the applicant had complained to Dr Emin of symptoms in his back and legs before, e.g. back pain with numbness or pain in both legs on 17 July 2017 and 2 October 2017. On 11 June 2018 he also complained of acute on chronic low back pain radiating into both legs (see paragraph 31 above) which probably resulted in him being certified unfit for work on 12 June 2018. I find there is a significant inconsistency between the severity of the pain suffered on 3 September 2019, as alleged in the statement, and the level of back symptoms recorded and noted on examination at the hospital that day. Hospital staff were left with the impression of a “knee injury – work related”. This raises the point about the applicant’s communication difficulties.
I accept that the applicant being deaf and mute needs to be taken into account in relation to potentially inconsistent or problematical histories recorded or taken from him. To some extent, I also accept the submission that the subtlety and nuance in providing histories in medical examinations can be lost, even with an Auslan interpreter. But I do not accept this would necessarily be so. In my opinion, it would depend upon the circumstances, including the nature of the particular history or inconsistency being considered. I see no reason or basis to find that this would be any more of a problem than with evidence being given with the intervention of an interpreter rendering one language into another. Again, the extent to which there may be difficulties with such an exercise depends upon all the circumstances, including the relative skills of the interpreter and the witness. I also take into account the evidence
There is no evidence of a particular or general problem with Auslan deaf/mute interpreting. I do not accept the submission that the nuance and subtlety of history giving at medical examinations even with the benefit of Auslan interpreters would necessarily explain any inconsistencies. But I accept care needs to be taken. The same applies to the submission that caution should be exercised in dealing with clinical notes of treating doctors.
Bearing all this in mind, there could have been some language difficulty on 3 September 2019 at the hospital. It is not clear whether an Auslan interpreter attended. When the applicant presented to the triage nurse at 10:40 hours, it was noted that an Auslan interpreter was contacted and “will call back in 1 hr”. The triage nurse noted that the presentation was with “Lft knee. Knee pain/? Twisted”. It is also recorded that the applicant “stated had similar injury with lft kene (sic)”. Another nurse notes at 12:41 hours that Dr Christian had seen the applicant and was “communicating with pt on paper”. It is not clear whether an interpreter was there but there is no mention of it. It is more likely there was no attendance. It was also noted that the assessment involved a “difficult history as patient deaf and mute” but that there was “history written”. Reference is then made to “ some back pain in addition – unable to ascertain if new or existing – shoots down leg to toe (S1) distribution – feels that something has stretched … PMHx: similar injury previously - ? sciatica”.
It is not clear whether the applicant gave a history that there had been a similar injury to the back previously and/or previous sciatica or whether hospital staff were independently considering that. There is also no mention of any injury mechanism other than “hitting left knee with tool”. In these respects, it is plausible there could have been some miscommunication on this day. The applicant says he did not have the assistance of a translator at the hospital and I accept that.
But I still believe there is an inconsistency between the relative severity of the pain described in the statement and the relatively minor pain or symptoms noted on what appears to be a careful analysis of the applicant’s presentation (also cf the complaints noted in paragraphs 31-33 above). If his back pain was as severe as he puts it in the statement, I would have expected it to have been included in the written communication or to him communicating such by pointing or hand gestures otherwise. The applicant was experienced in communicating with medical and hospital staff.
In my opinion, there is also an inconsistency between the applicant’s evidence and the evidence of Dr Nazha. The applicant has stated that after 3 September 2019, he had persistent or permanent back pain and leg symptoms – unlike the pain he had experienced before then, which was different, not constant, and only periodic.
On 25 January 2020 Dr Emin noted complaints of “left knee and lb pain”. On 21 September 2019 he noted: “ctlss, us right elbow and mri right knee discussed… for us guided injection to right elbow and for CT guided injection to L5”. On 2 December 2019, he also noted “going to have chiro”, possibly suggesting back symptoms at the time. But that note more fully states “still has pain left knee…keeps falling at home… ortho report discussed… not happy with physio…going to have chiro”. This leaves competing inferences as to whether the reference to “ortho” or “chiro” refers to the low back or knee condition. I appreciate chiropractors usually treat spinal conditions. But I do not think I can speculate here that such a reference would likely not be for the knee - particularly in the context of the full quote.
The 21 September 2019 note, referring to a proposal for an L5 injection and discussion about the “ctlss” scan, likely refers to the 13 September 2019 CT scan and a proposal for an injection into the applicant’s low back. But this does not necessarily mean he then had different lumbar symptoms to those he had before. Nor is it clear enough when that pain started. Dr Emin does not refer to back pain on 7 September 2019. Also, the terms of the discussion about the “ctlss” and what resulted from it are not clear, although it may be that the L5 injection was a result. But it is not clear when that injection occurred.
Otherwise, there is no reference in the evidence to treatment proposed for, let alone undertaken, or complaints made about, the applicant’s low back between 10 September 2019 and 25 January 2020. In the meantime, Dr Nazha saw the applicant on 8 January 2020. The applicant stated he understood Dr Nazha had not noted anything about his back but explained that as a deaf person it is sometimes difficult to explain complaints in a clear expression. Dr Emin had referred him to Dr Nazha, and had not included back pain as part of the past history. That needs to be considered in the context of Dr Nazha perhaps overlooking or not adequately eliciting any history of back pain from the applicant on 8 January 2020. On the other hand, it may also be viewed as odd – if the applicant did in fact have significant ongoing back pain then - that Dr Emin did not refer to such a history, particularly given that he not only appraised Dr Nazha of the history of left knee pain, but also referred to worsening left elbow and right shoulder pain.
The other concern I have about accepting the applicant’s suggestion that his deafness explains the lack of reference to back problems in Dr Nazha’s January 2020 report is that he and Dr Nazha had the benefit of an Auslan interpreter on 8 January 2020. I also find Dr Nazha undertook a careful examination, and also carefully reported on the consultation and examination on 8 January 2020, including for the purposes of eliciting any information that may explain the applicant’s knee pain on the basis of lumbar involvement. I also find it significant that Dr Nazha then managed to take a history of persistent knee pain since 3 September 2020, yet not record any, let alone persistent, back symptoms at all.
Dr Nazha saw the applicant on 5 February 2020 when again there was no reference to any back pain in his report. It was not until 7 April 2020, after Dr Nazha reported to Dr Emin that he learned of an MRI scan of the lumbar spine, that he noted the applicant complaining of “some lower back pain that does radiate down his left thigh which was not previously brought to my attention”. Dr Nazha then stated that his initial assessment did not show any evidence of radicular pain – something he was looking for in order to ascertain whether the applicant had an L3 radiculopathy to explain his knee pain. This supports my belief that Dr Nazha’s 8 January 2020 examination was careful.
In these circumstances, there is inconsistency between the evidence of the applicant and Dr Nazha in relation to the first issue. I find it unlikely the applicant did complain to Dr Nazha of back pain before April 2020.
I come to this conclusion despite exercising caution about the reliability of a treating practitioner’s notes and the communication difficulties the applicant has with his deafness condition. But I do not think such difficulties explain the relevant inconsistencies in this case. Because of these inconsistencies, I need to take care with the applicant’s evidence. It is appropriate to assess his evidence not only by what he has stated but by reference to other evidence, particularly contemporaneous records, before accepting it.
Another matter of concern in relation to whether I can accept the applicant’s evidence that he had back pain and pain going down his leg “permanently” after September 2019 is the failure of Dr Moses to record any such symptoms when he saw the applicant, also referred by Dr Emin, on about 11 December 2019. I need to be particularly careful with this report because it is not clear whether or not an Auslan interpreter was available. Such was not referred to by Dr Moses though. Still, there is no record on this occasion of any problem with the applicant’s back or with pain going down his leg from his back. In fact, Dr Moses states, apparently with some clarity, that “he has no hip pain”. This is not quite the same as back pain of course, but Dr Emin’s notes have at times in the past referred to hip pain as well as back pain. I also note it appears Dr Emin may not have provided a history to Dr Moses about a back problem given his note on 4 December 2019 (paragraph 38 above). Nevertheless, the report of Dr Moses certainly does not help the applicant’s case in terms of producing at least some evidence of some back or similar complaint during the 10 September 2019 to January 2020 period.
Also inconsistent with the applicant’s statement that he had permanent or persistent back pain after 3 September are the various medical certificates issued by Dr Emin between 19 September 2019 and 22 January 2020, certifying the applicant as unfit for work until 22 February 2020 due to the left knee injury (or right elbow) only. It was not until 22 February that Dr Emin included a low back injury on the medical certificates (paragraph 43 above).
I also think it is significant that the applicant returned to the hospital on 12 October 2019, referred by Dr Emin, and complaining of left knee pain, with there being no mention of back pain (paragraph 27 above). The significance goes to both whether I can accept the applicant’s evidence that he had permanent or persistent low back pain ever since the incident on 3 September 2019 and also the assessment of the extent to which him being deaf and mute interferes with his ability to communicate (“deaf and mute man … communicated by lip reading and writing …”).
I think it is also significant that the applicant went to the hospital on 27 December 2019 again complaining of left knee pain, and where hospital staff were able to understand that this left knee pain came from an “injury 3/12 ago at work”, and that there was “physio review under WC (I infer that to be workers compensation)”. This is unsurprising given he had the benefit of schooling into year 10 and completed an apprenticeship in computers for deaf people.
Also militating against the reliability of the applicant’s evidence is the disconnect between the extensive history of low back and leg symptoms before 3 September 2019 and the reports by various doctors that the applicant either omitted to provide such history or denied it. This involves more than a single instance of such omission. It likely occurred with the history taken by Dr Hope on 22 June 2020 - “lumbar spine was not symptomatic, did not require medical assessment, was not investigated, was not diagnosed and not treated”. While it is not totally clear on whether this means there was a history given of no prior problems at all, there is no doubt this record is inconsistent with the fact that the applicant had previously required medical assessment and had been investigated, diagnosed and treated.
It appears Dr Hope did not become aware of the previous back symptoms until the applicant’s solicitors wrote to him on 2 November 2020. Dr van Gelder, who had the benefit of a letter of instruction from the applicant’s solicitor dated 1 April 2020 including (it appears) the chronology, did take a history of “before he started working the carpet laying … some episodes of low back pain … prior scans … treated with physiotherapy and improved … back pain had resolved before he started working in the carpet laying business and up until September 2019”. The essence of this history is also included in the letter of instructions to Dr van Gelder. That is not a criticism. Such a letter is an acceptable practice and does facilitate history giving, and I have no doubt its content is based on instructions given by the applicant. But this occurred in or about March or early April 2020. This of course is before the applicant saw Dr Hope which raises the question of why Dr Hope did not take a history of the previous back problems. Dr Khan and the applicant were assisted with an Auslan interpreter at the consultation on 23 September 2020 but still took a history that the applicant “did not have any prior history of low back injury”.
A similar situation arises in relation to the report on the examination by Dr Doig of the applicant on 12 April 2021. Dr Doig states that on direct questioning, the applicant denied any previous problems or injuries to his spine and also “pointed out that he had suffered no problems previous while working in a self-employed cleaning business”. I have considered the report of Dr Doig and believe he undertook a careful examination and reported with care and accuracy. I have no reason to believe that Dr Doig did not correctly record this history. He and the applicant also had the benefit of an Auslan interpreter.
While it is possible that these instances of inconsistencies could be explained by the applicant’s deaf and mute condition, I do not think it likely.
Dr Doig also took a history of the applicant banging the carpet into position on his knees using the left knee and also thereafter carrying a carpet upstairs with a work colleague and suffering worsening pain. I infer it likely that Dr Doig carefully considered most of the relevant background material. He stated that the applicant’s maintaining of injuring his lower back while carrying a carpet upstairs “needs clarification”. This aspect of the applicant’s history does not appear in any of the contemporaneous material. A history of this type of mechanism does not appear until about early April 2020. Dr Moses had taken a history of the applicant “kneeling on his left knee and then feeling a sudden sharp pain in a twisting episode” on 3 September 2019. The only history taken at the hospital (again bearing in mind potential difficulties communicating on that day) was “hitting left knee with tool”.
While Dr van Gelder has prepared a thoughtful and erudite report, I agree with the respondent’s submission that it is not clear about the extent to which he took into account the whole of the material he was provided with, or whether he was rather guided by the history he took from the applicant and the assumptions provided to him from the applicant’s solicitor (which relevantly also contain the applicant’s history to him). I believe it is the latter. He refers to providing an opinion “on the basis of the history available to me” (ARD 52). The applicant “provided a consistent history, physical examination and radiological studies. On the basis of this, the mechanism of the injury sustained on the 3/09/19 is consistent with being a cause of permanent aggravation of his back condition”. He finds that the aggravation of the applicant’s pre-existing condition on 3 September 2019:
“caused the onset of permanent unmanageable back pain and sciatica … spondylolisthesis is a condition that can be present and cause intermittent or manageable back ache for many years … can worsen over time to cause intolerable back pain and sciatica … had a long history of active manual work with intermittent symptoms prior to starting work as a carpet layer … initially … able to cope … heavy awkward lifting, overhead lifting and carrying a carpet on his shoulders in awkward positions are mechanisms that can significantly aggravate spondylolisthesis … possible to speculate that without working as a carpet layer and having the incident on the 3/09/19 … may have continued to have spondylolisthesis that was only causing intermittent manageable symptoms for some years into the future …”
The difficulty with this analysis is that the doctor is proceeding on a history which in my opinion is not correct, particularly the “permanent unmanageable back pain and sciatica” aspect. That of course is not a criticism of Dr van Gelder’s report. But ultimately the report is only as good as the correctness of its assumptions.
I do accept that there was an exacerbation of the applicants pre-existing spinal disease, in the nature of spondylolisthesis and/or spondylolysis (the disease) as a result of an incident on 3 September 2020, and that this incident, and therefore the employment with the respondent, was the main contributing factor to the exacerbation. However, I find, in accordance with Dr Doig’s opinion, that the exacerbation was “a temporary, symptomatic exacerbation only”. He said this was” based on the documentation supplied”. While he did not go through all the details of such documentation, he does note the applicant was “followed up by his general practitioner and also a sports physician and there was no mention made of back problems arising from the incident of 3 September 2019”.
The evidence is unclear as to how long the symptomatic exacerbation on 3 September 2019 lasted for. The applicant saw Dr Emin four days later, on 7 September 2019 and there is no record of any back pain complaint – but where there was a complaint of left knee pain. He then saw Dr Emin three days later on 10 September 2019 when there was a complaint of “low back pain getting worse… numbness behind the legs”. However, it is not clear enough from this note as to the context behind, or what Dr Emin meant by, this pain “getting worse”. There is no mention of the incident on 3 September 2019. Dr Emin was also provided with an opportunity by the applicant’s solicitor to provide reasons in support of his opinion that there was an aggravation of the disease on 3 September 2019. His opinion went no further than to say “it was aggravated”. He was also asked whether the employment materially contributed to the need for the proposed surgery. He did not express an opinion on this, only stating he would “leave that for Dr van Gelder to decide”.
Taking everything into account, the best I can do in identifying when the temporary exacerbation ceased is 19 September 2019. This is when Dr Emin wrote a certificate to certify the applicant as having no capacity for work until 26 September 2019 on the basis of a right elbow and left knee sprain and right elbow, with no reference to any low back problem. Given all the evidence, I am not persuaded, and am not satisfied that the applicant did have persistent and/or significant and/or unmanageable low back and/or sciatic symptoms between about 19 September 2019 and about late January 2020.

Dr Doig has not exposed as fulsome an analysis of all the relevant documentation as appear in these reasons. Nevertheless, while I have also taken into account the submission from the parties, my reading of the documentation supplied is reasonably consistent with his opinion, and more consistent than any other opinion. I believe his opinion is more persuasive than those of Dr van Gelder or Dr Hope in relation to both issues. Both Dr van Gelder and Dr Hope assume, and significantly base their opinions on, an acceptance that the applicant has been persistently symptomatic since that incident. For the reasons expressed above, I do not accept the applicant’s evidence in that important respect.
I find it likely that the mechanism of injury was by the applicant repeatedly kicking the pad on the knee kicker with his left knee. This is, to some extent, consistent with the statement. It is also consistent with the history recorded at the hospital that day, and Dr Moses’ history (although Dr Moses did not record any history or complaint of back/hip pain).
I am not satisfied there is sufficient evidence to allow me to find it likely that the applicant sustained an injury to his low back as a result of him carrying carpet on his shoulder on 3 September 2020 (see also paragraph 127 above), or as a result of the nature and conditions of his employment; either during the period between May and 3 September 2019 and/or on 3 September 2019. It can be accepted those nature and conditions (as summarised in paragraph 2 above) are capable of producing injury. But having regard to all the evidence, such is theoretical only; I do not think it likely that any such relevant injury occurred. The applicant himself stated he was able to do the work for about five months “without an issue” until September 2019. As to the alleged episode of carrying the carpet on his shoulder on 3 September 2019, there is no corroborating evidence of that occurring for about six to seven months. As noted earlier, I do not find the applicant’s evidence reliable about this matter.

There is still a question as to whether and the applicant’s low back and/or sciatic type symptoms since about late January and/or February 2020 are as a result of the exacerbation of his disease I have found. However, my reasoning and finding that the 3 September 2019 exacerbation ceased on 19 September 2019 presents me with competing inferences about whether his low back and resulting leg symptoms, recorded since about late January 2020, are a manifestation of, or as a result of, the pre-existing spinal disease – or any exacerbation of that disease on 3 September 2019.
Taking all the circumstances into account, I am not actually persuaded that the applicant’s low back and sciatic type symptoms since about late January and/or February 2020 are as a result of the aggravation of his pre-existing spinal disease on 3 September 2019. While there is no record of any medical treatment between March 2019 and September 2019, there is an extensive history of intermittent significant low back and leg symptoms between late 2016 and March 2019. I think it is more likely that the symptoms the applicant started complaining of in late January 2020 and thereafter are a recurrence or manifestation of the disease.
I have also not been persuaded that these symptoms are significantly different, either in terms of symptoms or radiological findings, to the symptoms and radiological findings up to and including about 5 and 7 March 2019 - when Dr Emin noted low back pain and a CT scan was undertaken with the clinical note “lower back pain getting worse”.

The second issue – is the proposed surgery as a result of injury

My findings in relation to the first issue dispose of the second issue also. I have found that the employment was the main contributing factor to an aggravation, on 3 September 2019, of the disease, but that such exacerbation had ceased by 19 September 2019. I also accept the opinion of Dr Doig in this regard who finds that there is no evidence that the 3 September 2019 incident materially contributed to the need for the proposed surgery. Surgery was not considered until around the time the applicant saw Dr van Gelder, at least six months after I have found the exacerbation of the disease had ceased. The proposed lumbar spine surgery is not as a result of an injury received by the applicant. It is not likely that the exacerbation, such as I have found its scope and content, materially contributed to the need for the surgery which was proposed in about March or April 2020.

SUMMARY

I find the employment was the main contributing factor to an exacerbation of the applicant’s disease on 3 September 2019.

I find the effects of the exacerbation ceased by 19 September 2019.

I find the proposed lumbar spine surgery is not as a result of an injury received by the applicant, and that the exacerbation did or does not materially contributed to the need for that proposed surgery.
There is an award for the respondent.

[2021] NSWPIC 273

3 August 2021