Gibson v Woolworths Group Limited
[2022] NSWPIC 131
•25 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Gibson v Woolworths Group Limited [2022] NSWPIC 131 |
| APPLICANT: | Darren Gibson |
| RESPONDENT: | Woolworths Group Limited |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 25 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly compensation at a higher rate than currently being paid; accepted lumbar injury in 2018; whether acute flare in symptoms at work in 2021 constituted a new injury or recurrence of 2018 injury; where increase or intensification in symptoms attributed by all doctors to repetitive lifting of cartons of soft drink; applicant had returned to pre-injury duties following 2018 injury; although there were some residual symptoms, they were “manageable”; whether no current work capacity; after changing nominated treating doctor applicant’s capacity downgraded; Held- the applicant sustained a new injury pursuant to section 4(b)(ii) of the of the Workers Compensation Act 1987; weight of evidence favoured a finding of no current work capacity in the period of weekly compensation claimed; award in favour of the applicant for weekly compensation. |
| DETERMINATIONS MADE: | 1. The applicant sustained a new injury to his lumbar spine on 5 February 2021 pursuant to 2. The applicant had no current work capacity from 16 June 2021 to date and continuing as a result of the 5 February 2021 injury. 3. The respondent to pay the applicant weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 from 16 June 2021 to date and continuing based on a pre-injury average weekly earnings (PIAWE) figure of $1,499.28 (as periodically indexed). 4. The respondent to have credit for payments already made in the period above. |
STATEMENT OF REASONS
BACKGROUND
Mr Darren Gibson (the applicant) was employed by Woolworths Group Limited (the respondent) as a storeperson.
The applicant sustained an accepted injury to his lumbar spine at work on 8 September 2018. The applicant returned to work following that injury but, on 5 February 2021, reported that he had experienced acute lower back pain and stiffness with referred pain down his left leg and foot whilst lifting soft drink cartons at work.
A recurrence of the 2018 injury was accepted by the insurer. Payments of weekly compensation were commenced on the basis that the applicant retained current work capacity in accordance with certificates issued by the applicant’s nominated treating doctor.
On 16 June 2021, the applicant attended a new general practitioner, Dr Eric Lim of the Workers Doctors, who issued a certificate of capacity certifying the applicant as having no current work capacity.
Liability to pay weekly compensation on the basis that the applicant had no current work capacity was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 25 June 2021. That decision was maintained following internal review pursuant to s 287A of the 1998 Act on 14 October 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 17 November 2021. The applicant sought ongoing weekly compensation at a higher rate than had been paid from 5 February 2021 ongoing.
The ARD was subsequently amended at the conciliation conference to claim weekly compensation from 16 June 2021 onwards based on a pre-injury average weekly earnings (PIAWE) figure of $1,499.28. The applicant claimed that the event on 5 February 2021 constituted a new injury pursuant to ss 4(a) and/or 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 16 March 2022. The applicant was represented by Mr Greg Horan of counsel, instructed by Mr Gerard Morson. The respondent was represented by Mr Tom Grimes of counsel, instructed by
Mr Robert Passas. A representative from the insurer was also present.During the conciliation conference it was agreed that if the applicant were successful in establishing that a new injury occurred on 5 February 2021, the applicant’s PIAWE figure of $1,499.28 was correct. Directions were made admitting into evidence the documents attached to an Application to Admit Late Documents lodged by the applicant on 8 March 2022. The ARD was amended as indicated above.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a new injury to his lumbar spine pursuant to
ss 4(a) and/or 4(b)(ii) of the 1987 Act on 5 February 2021; and(b) the extent and quantification of incapacity resulting from injury during the period 16 June 2021 to date and continuing.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents; and
(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 8 March 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in a written statement made by him on 25 October 2021.
The applicant said he undertook secondary schooling until Year 11 and completed his Higher School Certificate at TAFE. The applicant also completed a Certificate IV in Horticulture and a Diploma in Photography.
The applicant worked as a landscaper and horticulturalist for various employers before commencing employment with the respondent as a storeperson in 2006.
The applicant disclosed that on or about 10 July 2016, he experienced a sharp pain in his lower back and reported an injury whilst picking and handling oversized boxes of cereal. The applicant was diagnosed with multilevel lumbar disc protrusion. Following some time off work and treatment, the applicant was able to return to full duties.
On or about 8 September 2018, the applicant suffered a lower back injury whilst using an electronic pallet jack. The pallet jack had no suspension or cushioning. The applicant accidentally ran over a pallet board and suffered a jarring injury to his lower back. The applicant was required to take some time off work and underwent strength training through a gym program. The applicant requested that his doctor certify him fit to return to work, which he did, although he was in pain.
On or about 5 February 2021, the applicant was packing cartons of soft drink bottles. Each carton weighed approximately 13 kg. The applicant continually lifted the cartons of soft drink onto a sorter. In the middle of the day, the applicant experienced sharp pain in his lower back and felt it going stiff. The applicant said he tried to stretch out the pain but this did not help so he reported an injury. At his team leader’s suggestion, the applicant took his lunch break but the pain did not go away and the applicant was unable to stand straight.
The applicant initially consulted his general practitioner, Dr Nayara Aktar, who was reluctant to make a workers compensation claim until the applicant underwent an MRI scan. An MRI was performed on 10 February 2021. The applicant returned to work, performing six hours per day for three shifts, in accordance with a certificate issued by Dr Aktar. The applicant found the pain and discomfort very difficult to manage and utilised personal leave to help manage his injury.
Subsequently, the applicant participated in training, during which his injury was accommodated by the instructor. The applicant also took two weeks off work to visit his grandmother on the Central Coast. From late March 2021 until early May 2021, the applicant took time off work to undergo a six-week course of radiation therapy for a craniopharyngioma.
From June 2021, the applicant came under the care of Dr Eric Lim. The applicant was referred to spinal surgeon, Dr Bhisham Singh as well as a psychologist and physiotherapist. Dr Lim downgraded the applicant’s work capacity as he believed the applicant was unable to return to work due to his injury and symptoms.
The applicant saw Dr Singh on 8 July 2021, who also gave the opinion that the applicant did not have any work capacity for the foreseeable future. The applicant underwent an x-ray and bone scan the same week. The applicant was forced to cease physiotherapy treatment as a result of the COVID-19 lockdown.
The applicant said that Dr Singh had recently recommended that he undergo spinal surgery.
The applicant said he was not fit to return to any form of employment and it was unlikely he would be able to return to a job that required manual labour as a result of the back injury and radiating left leg pain. Even the most innocuous tasks or movements could produce a major flareup of symptoms rendering the applicant debilitated by pain and unable to function.
The applicant continued to consult Dr Lim and took Panadol Forte and gabapentin for pain management.
The applicant said he continued to suffer from lower back pain, worse on the left side. The pain radiated down both legs. On the left side, the pain radiated down the left buttock and thigh, skipping the calf and causing numbness in the left heel. The applicant’s pain was exacerbated by lifting, strenuous activity and sitting or standing for more than 20 minutes at a time. The applicant experienced sleep difficulties and was often woken by severe pain.
The applicant said he struggled to perform his activities of daily living and was unable to mow the lawn. The applicant tried to help his partner with household duties but was cautious not to irritate his injury.
The applicant said he felt incapable of performing heavy and repetitive warehouse work.
Injury recurrence form
A “worker’s recurrence of injury form” completed by the applicant on 15 February 2021 described an original injury on 8 September 2018 and gave a date of recurrence of 5 February 2021.
Asked to describe his current injury or symptoms, the applicant referred to acute lower back pain and stiffness with referred pain down his left leg and foot.
Asked whether he had experienced any discomfort or symptoms undertaking his duties following his return to work from the original injury, the applicant responded, “yes, I would occasionally feel stiffness in my lower back”.
Asked whether he had fully recovered from the original injury at the time of the recurrence, the applicant responded, “some occasional symptoms but overall I felt I had recovered”.
Peak Conditioning report
A “Final Report” prepared by Peak Conditioning for the insurer on 24 May 2019 in respect of the 8 September 2018 injury, recorded following outcome:
“Mr Gibson successfully achieved the return to work goal of pre-injury duties as a Warehouse Assistant with Woolworths.”
According to the report, the applicant had been able to complete six exercise physiology consultations. The applicant demonstrated the skills and knowledge to be able to effectively manage his condition independently in the future. The report noted that a certificate of capacity dated 15 May 2019, certified the applicant as fit for pre-injury duties.
The report noted that the applicant demonstrated that he could meet most physical demands required to safely complete his pre-injury duties and Peak Conditioning was comfortable with the applicant obtaining a final certificate on 15 May 2019.
The report stated,
“In relation to Mr Gibson’s worker’s compensable lower back injury, minimal flare-ups occurred during treatment. Mr Gibson reported discomfort in the hamstrings and around the collarbone region towards the latter stages of treatment, and it is was eventually identified to be as a result of the non compensable issue. Mr Gibson’s lower back pain was relatively well-managed during treatment but when symptoms increased, he would often use anti-inflammatory medication/creams and stretch. Peak Conditioning encouraged Mr Gibson to continue with such techniques and provided additional strategies like pacing and pain education.”
Treating medical evidence
On 6 February 2021, 12 February 2021 and 15 February 2021, the applicant’s general practitioner, Dr Nayara Aktar issued general medical certificates certifying the applicant as unfit for work.
On 2 March 2021, Dr Aktar issued a SIRA certificate of capacity in which the applicant was certified as having no current work capacity on 1 March 2021. Thereafter, the applicant was certified as fit for six hours per day, two days per week. The applicant was advised not to lift or carry and to avoid bending, twisting, squatting, pushing and pulling. The applicant was able to stand, sit and drive as tolerated. The certificate referred to a date of injury of 5 February 2021 and referred to disc pathology “since 2018” and an “exacerbation” at work.
Dr Aktar noted that the applicant had been referred to a neurosurgeon and physiotherapist.SIRA certificates to the same effect continued to be issued by Dr Aktar until mid-May 2021. In a certificate issued on 6 May 2021, Dr Aktar noted that the applicant had not yet seen a neurosurgeon as advised earlier.
Dr Aktar completed a questionnaire from the insurer, dated 20 April 2021, in which a diagnosis was given of:
“Back pain, L4/L5 disc bulges, posterior disc annular tears L4/L5 and L5/S1 since 2018.”
The applicant’s current symptoms included back pain radiating to the legs. Dr Aktar’s findings on examination included limited movements, pain on sitting or standing. The applicant had been referred to a neurosurgeon, pain management and physiotherapy.
In response to a question asking whether the applicant was fit for work, Dr Aktar responded:
“Some type of work. 6 hrs x 2 days a week.”
On 16 June 2021, general practitioner, Dr Eric Lim prepared a report in which he took a history of the applicant suffering a back injury at work on 5 February 2021 due to repetitive lifting, twisting, pushing and pulling in the setting of years of physical work. The applicant took a few days off work then returned to work for a few days before pain worsened.
Dr Lim made a diagnosis of a lumbar spine aggravation, L2-S1 disc bulge, L4-S1 disc protrusions with mild spinal canal narrowing at L4/5 and an adjustment disorder.
With respect to the applicant’s capacity for work, Dr Lim said:
“He is likely going to struggle with physical work, which is all that he has done.
I suspect with the pathology on his scans he may require future surgery if he is to return to some light alternative work.”Dr Lim issued a certificate of capacity on 16 June 2021 certifying the applicant as having no current capacity for any work. The date of injury was said to be 5 February 2021 and the injury was related to work due to repetitive lifting, twisting, pushing and pulling in the setting of his physical work. With regard to any pre-existing factors relevant to the injury, Dr Lim referred to multilevel lumbar disc protrusions in 2018.
Certificates to the same effect continued to be issued by Dr Lim.
On 30 June 2021, Dr Lim prepared a report in which he elaborated on the applicant’s capacity for work, Dr Lim stated:
“I have not downgraded him. I have certified his demonstrated capacity or lack thereof. He has pathology which prevents him from working due to a disc protrusion. It is unsafe for him to return to work as a storeman, for which he is experienced, trained, and skilled. He does not have the ability for alternate non physical work. He is therefore unfit for work which he is suitable qualified, and remains unfit for work.
You note inconsistencies with a local GP who referred him to a specialist which you refused. He tells me ‘his GP felt uncomfortable certifying him unfit after receiving multiple calls from woolworths, without a specialist review as she was only a GP.’ I can only image what those phone calls were, but my patient was not present for the calls, and it does seem rather odd behaviour for a GP. He advised the GP that he struggled with daily activites, but according to Mr Gibson, she seemed petrified of woolworths.
Mr Gibson described that "he feels his certificate did not reflect what he reported to his GP, and that his GP was under the influence of woolworths.”
On 8 July 2021, orthopaedic and spine surgeon, Dr Bhisham Singh prepared a report for
Dr Lim noting that the applicant had sustained an injury in the workplace and had conservative treatment. The applicant went back to work and had an aggravation. His pain had been getting worse over the last few months. The applicant had been unable to mow his garden for the last few months and had to lie directly on the floorboards to get any relief whatsoever.Dr Singh noted a scan taken three years earlier had been reported to show multiple disc bulges in the lower lumbar spine. A more recent scan showed a loss of disc height at multiple levels. Dr Singh recommended a standing x-ray as well as a nuclear medicine bone scan of the entire spine. Treatment options at that point included ongoing physiotherapy, medication and surgery.
In a further report dated 4 August 2021, Dr Singh noted that the applicant sustained a back injury during repetitive lifting, twisting, pushing and pulling. The applicant’s history was commensurate with a diagnosis of discogenic low back pain at multiple levels in the lumbar spine. The applicant reported being unable to straighten up and had to lie directly on the floor. Dr Singh said:
“I do not believe he has any work capacity for the foreseeable future.
…
In my opinion his incapacity is the result of the injury sustained at work and I believe that his employment was a substantial contributing factor to his injuries.
…
He is likely to have ongoing back pain and function incapacity. With surgery he can expect improvement of his function and pain.”
Dr Khong
The applicant relies on a medicolegal report prepared by neurosurgeon and spine surgeon, Dr Peter Khong, dated 22 September 2021.
Dr Khong took a history of an injury on 8 September 2018, following which the applicant gradually returned to full duties. The applicant had “persistent lower back pain but was managing it”.
On 5 February 2021, the applicant was packing and again felt sharp pain in his lower back. The applicant now complained of persistent lower back pain, mainly in the left lower back. The applicant also had pain radiating down the left buttock and posterior thigh. The pain was constant. Lifting and strenuous activity made it worse.
Dr Khong reviewed the imaging of a bone scan performed on 13 July 2021 and an x-ray of the lumbar spine performed on 12 July 2021. An MRI performed on 10 February 2021 was also reviewed.
Dr Khong suggested that the applicant may require a fusion in the future if his back pain persisted or worsened.
Dr Khong stated that the applicant had no capacity to work in his previous role and was currently unable to work at all due to persistent back and left leg pain.
Dr Khong’s provided a diagnosis as follows:
“Mr Gibson presents with lower back pain and left leg pain after two lifting injuries at work on a background of work which involves repetitive lifting. His MRI demonstrates multi-level degenerative disc disease at L3/4, L4/5 and L5/S1. His bone scan demonstrates some increased uptake at L5/S1. The nature and conditions of his work likely caused an acceleration of the degenerative changes in his lumbar spine. He also experienced two exacerbations at work.”
Dr Powell
The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Richard Powell, dated 25 October 2018 and 10 September 2021.
In his first report, Dr Powell noted a history involving an original injury to the lower back at work in 2016. On 8 September 2018, the applicant was operating a pallet jack when he drove over a pallet board resulting in some jarring of his lower back. The applicant was aware of an immediate onset of sharp pain in the left side of the lumbar spine. An MRI was obtained demonstrating the presence of degenerative disc pathology at the lower three lumbar levels. No further treatment was recommended and the applicant was placed on light duties with restrictions.
The applicant reported ongoing symptoms involving the lower back and intermittent sharp pain in the left side of the lumbar spine occurring on a daily basis. There was dull pain radiating down the posterior aspect of the left thigh to the calf also on a daily basis. There was intermittent tingling affecting the ball of the left foot and stiffness and restriction in range of motion.
Dr Powell diagnosed a musculoligamentous injury of the lumbar spine and aggravation of pre-existing multilevel degenerative lumbar disc disease in the workplace incident on 8 September 2018.
Dr Powell said the aggravation was ongoing but appeared to be settling. Dr Powell said the applicant was fit to continue working his current capacity, performing 20 hours per week with a lifting restriction of 10 kg.
Dr Powell prepared a supplementary report on 10 September 2021. Dr Powell noted that he had assessed the applicant via telehealth in preparing the report.
Dr Powell noted that the applicant had been moved to a permanent part-time position in 2016 due to his lower back injury. The applicant had been referred for physiotherapy then exercise physiology. Investigations revealed evidence of multilevel degenerative disc disease at L3/4, L4/5 and L5/S1.
On 8 September 2018, the applicant experienced an immediate onset of sharp left-sided lower back pain when driving over a pallet board. The applicant was referred for an MRI which confirmed the presence of multilevel degenerative lumbar disc disease. The applicant was placed on light duties. At the time of the previous assessment, the applicant reported intermittent sharp pain on the left side of the lower back radiating with dull pain extending down the posterior aspect of the left side of the calf, accompanied by tingling involving the ball of the left foot and restricted range of motion.
The applicant reported that he was able to return to his pre-injury duties in 2019 but was aware of ongoing lower back pain. The applicant had completed a rehabilitation program centring on physiotherapy.
Dr Powell noted that the applicant had been put off work in March 2021 due to a recurrence of a craniopharyngioma.
Dr Powell noted that in February 2021, the applicant aggravated his lower back as a result of repetitive work picking boxes. Continued conservative management had been recommended and the applicant had been referred for a CT guided corticosteroid injection.
The applicant’s symptoms included constant aching pain in the left side of the lower lumbar region and pain extending down into the left buttock. The applicant reported some numbness and burning discomfort in the left heel. The applicant was aware of stiffness and restriction in range of motion. Dr Powell noted that the applicant was currently certified unfit for work.
Dr Powell gave the opinion:
“He sustained a musculoligamentous injury of the lumbar spine and aggravation of multilevel degenerative disc disease in 2016 and again in September 2018 and February 2021.”
Asked to confirm his diagnosis of the injuries suffered by the applicant at work in February 2021, Dr Powell stated:
“The incident in February 2021 most likely represented a musculoligamentous injury and aggravation of underlying multilevel degenerative lumbar disc disease.”
Asked whether any aggravation had ceased, Dr Powell stated:
“The available evidence indicates that the aggravation is ongoing. Mr Gibson informed me that following the previous aggravation in 2018, he had been able to return to his preinjury duties though was aware of ongoing lower back symptoms which he was able to manage. However, the incident in February 2021 caused a flare in his lower back symptoms which is yet to settle.”
Asked for an opinion on the applicant’s current work capacity with respect to the 2021 injury, Dr Powell stated:
“It is difficult for me to comment definitively on work capacity in the absence of a clinical examination. Mr Gibson informed me that he is keen to return to work but there was concern he may not be able to regain his full preinjury duties. It is not clear on what basis he was downgraded from suitable duties to unfit for work following transfer of his care to the worker’s doctors in June 2021. Presumably his previous treating doctor was of the opinion that Mr Gibson did retain some work capacity and today’s review would suggest that is reasonable, though I would be more comfortable commenting on his current fitness for work following a proper clinical examination.”
Applicant’s submissions
Mr Horan referred to the applicant’s statement and his descriptions of the incident on 8 September 2018 and the further incident on 5 February 2021. The applicant described his experience of acute symptoms following the latter event but was not qualified as a lawyer or a doctor to diagnose a new injury.
Mr Horan relied on the medicolegal evidence in support of his submission that the incident on 5 February 2021 constituted a new injury. Mr Horan noted that in his supplementary report in September 2021, Dr Powell gave the opinion that the incident in February 2021 most likely represented “a musculoligamentous injury and aggravation of underlying multilevel degenerative lumbar disc disease”. That aggravation was found to be ongoing. Mr Horan also referred to the opinion given by Dr Khong, although conceded that he was less direct in respect of causation. The evidence from Dr Lim and Dr Singh was noted to be consistent with the medicolegal evidence.
Mr Horan noted that the applicant’s own evidence was of a specific incident at work on 5 February 2021. The applicant’s own evidence was consistent with the medicolegal evidence in describing a new acute event constituting a new injury for the purposes of ss 4(a) and 4(b)(ii).
Mr Horan noted that the PIAWE for an injury on 5 February 2021 had been agreed and the applicant relied on his amended wages schedule.
With respect to the issue of capacity, Mr Horan noted that on 16 June 2021 the applicant changed his general practitioner and started seeing Dr Lim. Dr Aktar had previously certified the applicant as having capacity to work in some type of employment for 12 hours per week following the 5 February 2021 incident. Dr Lim simply took a different view of the applicant’s capacity when he saw him.
Dr Lim took a correct history of the incident and noted that the applicant had not worked since February 2021. Dr Lim said there had been a deterioration of the condition and it was unsafe to the applicant to return to his work as a storeman or perform other physical work, which was the only kind of work the applicant had done.
Mr Horan noted that Dr Singh gave an opinion on capacity consistent with Dr Lim’s evidence. Dr Khong also gave the opinion that the applicant was currently unable to work due to his back and leg pain.
Mr Horan referred to the applicant’s own evidence as to his current condition and its impact on his ability to work. Even the most innocuous of movements produced a flareup of pain at the time the statement was prepared in October 2021.
Mr Horan noted that Dr Powell had also provided evidence as to the applicant’s capacity but had indicated that he would be more comfortable commenting on this issue following a proper clinical examination. Dr Powell’s supplementary report was prepared only after a telehealth consultation. Mr Horan said Dr Powell’s opinion was heavily qualified and would not cause the Commission to place less weight on the evidence from the applicant’s treating doctors. The applicant’s treating doctors gave their opinions without any qualification.
Mr Horan submitted that the applicant had provided compelling evidence which would satisfy the Commission that he had no current work capacity in the latter half of 2021 onwards.
Mr Horan observed that he had been provided with instructions that there was a significant change in the applicant’s circumstances in February 2022 in that a surgical procedure was performed on the applicant’s lumbar spine by Dr Singh and paid for by the insurer. The insurer was now paying the applicant at a higher rate based on total incapacity at the PIAWE rate for the accepted 2018 injury.
Mr Horan agreed that an award for weekly compensation should give the respondent credit for payments already made.
Respondent’s submissions
Mr Grimes submitted that the respondent’s position was that there was no new injury and the applicant’s symptoms and pathology continued on, largely unchanged, from the 2018 injury.
The applicant’s statement evidence described his condition following the 2018 injury.
Mr Grimes submitted that there was clearly no recovery in respect of that injury.Mr Grimes referred to the MRI evidence described in Dr Powell’s reports. The MRIs demonstrated the continuing presence of degenerative disc pathology.
Although there was evidence that the applicant had been effectively performing his normal duties following his return to work after the 2018 injury, the report from Peak Conditioning noted that the applicant had continuing flare ups of pain, requiring the use of anti-inflammatories, creams and stretching. Mr Grimes submitted that this was evidence of continuing symptoms following the 2018 event.
Following the 2021 incident, the applicant’s statement evidence described similar allegations of pain as those experienced in 2018. Mr Grimes noted that the applicant ceased work in February 2021 to pursue treatment for an unrelated condition.
Mr Grimes noted that the ARD had been amended to only claim compensation from June 2021. Prior to June 2021, the applicant’s usual doctor had provided certificates certifying the applicant as fit for six hours, two days per week from 16 February 2021 onwards. Dr Aktar’s certificates referred to the same treatment and pathology as was pursued following the 2018 injury. In her handwritten response to the insurer’s questionnaire, Dr Aktar provided a diagnosis of pathology that had continued “since 2018”. Mr Grimes submitted that Dr Aktar’s evidence was preferable to that given by the doctors who came on the scene much later. As the doctor seen most regularly by the applicant over the course of the various incidents,
Dr Aktar was said to be the most qualified to give an opinion.Mr Grimes noted that Dr Lim described the same disc pathology seen following the 2018 injury. An x-ray performed following the 2021 incident did not demonstrate any significant change in pathology.
Mr Grimes submitted that Dr Powell’s report described the same pathology and symptomology as in his 2018 report and would not support a finding of a new injury.
Mr Grimes noted that Dr Khong also referred to persisting lower back pain and the applicant managing it after the 2018 injury. That evidence was said to support a recurrence of the 2018 injury rather than a new injury in the form of an aggravation. Mr Grimes submitted that there was no differentiation between the pathology before and after the 2021 incident in Dr Khong’s reports.
Mr Grimes submitted that the evidence overwhelmingly supported a continuation of
Dr Powell’s findings of injury in 2018. The medical evidence referred to the same pathology after the 2021 event as found in 2018. The evidence supported a recurrence of the 2018 injury rather than a new injury.Mr Grimes submitted that if there were no new injury, the correct PIAWE was $1,029.45 as more than 52 weeks of weekly compensation had been paid in respect of the 2018 injury, requiring the exclusion of overtime payments and shift allowances.
With regard to the issue of incapacity, Mr Grimes submitted that Dr Lim provided little to no justification for his different certification. Dr Lim’s opinion was unsupported by Dr Aktar’s response to the insurer’s questionnaire. Dr Aktar considered that the applicant could perform some type of work for six hours per day two days per week.
Mr Grimes submitted that it was illogical that the applicant’s capacity would have reduced after taking time off work for cancer treatment. The break from work should have resulted in an improvement rather than a deterioration of the condition.
Mr Grimes noted that Dr Lim and Dr Singh were from the same practice and queried whether they had objectively provided separate opinions. The lack of activity and work and lack of evidence of change in pathology were not addressed in their evidence.
No explanation had been provided for the decline in the applicant’s condition other than that he was now in the hands of Dr Lim and Dr Singh. Dr Lim had provided a pro forma report similar to that provided in most cases he was involved in. Mr Grimes submitted that the Commission would not be satisfied that Dr Lim’s certification reflected the applicant’s actual position.
Mr Grimes noted that Dr Powell’s opinion on capacity had been criticised on the basis that it was given following only a telehealth consultation. The evidence suggested that Dr Lim also undertook telehealth consultations.
Mr Grimes submitted that Dr Powell took a proper history and provided an opinion that was far more considered. Dr Powell considered that the applicant had some capacity consistently with the evidence of Dr Aktar.
Mr Grimes submitted that the Commission would be satisfied that the applicant could perform 12 hours per week at work until 13 February 2022 when he underwent surgery.
Applicant’s submissions in reply
Mr Horan noted that the respondent relied on the existence of the same pathology as between the two incidents. Mr Horan submitted that that circumstance was not surprising given that all of the specialists were of the view that the applicant had degenerative disc disease. Mr Horan submitted that the Commission would prefer the medical evidence of the applicant’s doctors rather than simply look at the radiological findings.
Mr Horan noted that Dr Aktar’s handwritten response to the insurer’s questionnaire was prepared in April 2021, a couple of months before the period of the claim. Dr Aktar had indicated that the applicant could perform some type of work without specifying what type of work was suitable. That opinion was very general and open-ended.
Mr Horan confirmed that the applicant did not seek to criticise Dr Powell’s report but simply noted that he had qualified his opinion capacity due to not having physically examined the applicant again. The report of Dr Powell was otherwise relied upon by the applicant.
FINDINGS AND REASONS
Injury
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
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.”
In the present case, it is not in dispute that the applicant sustained an “injury” to his lumbar spine on 8 September 2018. What is in issue is whether the applicant’s experience of symptoms at the lumbar spine on 5 February 2021 constituted a recurrence or manifestation of the 2018 injury, or constituted a new “injury” in its own right.
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained a new “injury” for the purposes of s 4 of the 1987 Act on 5 February 2021. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[1] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[1] [2008] NSWCA 246.
There is no doubt that immediately prior to 5 February 2021, the applicant had pre-existing pathology at multiple levels of his lumbar spine. The evidence suggests that pathology at the lumbar spine was discovered following an initial event in 2016.
According to Dr Powell, the event at work on 8 September 2018 involved a musculoligamentous injury of the lumbar spine and aggravation of the pre-existing multilevel degenerative lumbar disc disease.
Following that injury, the lay and medical evidence indicates that by 15 May 2019, the applicant had been cleared to return to work in his pre-injury duties. The applicant’s evidence is that he requested that his general practitioner issue a certificate of capacity allowing him to return to work, although he remained in pain.
The report from Peak Conditioning, dated 24 May 2019, confirms that the applicant was still experiencing some symptoms at this time. The report described “minimal” flareups for which the applicant would use anti-inflammatory medication, creams and stretching. The author of the Peak Conditioning report was, however, “comfortable” with the applicant obtaining a final certificate on 15 May 2019. The applicant had demonstrated the ability to meet most physical demands required to safely complete his pre-injury duties. The applicant also demonstrated skills and knowledge to be able to effectively manage his condition independently in the future.
The applicant did in fact return to work in his pre-injury duties and managed to perform such work for a period of approximately 21 months prior to 5 February 2021. During this period, the evidence does, consistently with the Peak Conditioning report, suggest some ongoing symptoms albeit at a manageable level which did not impact the applicant’s capacity to work. In the Injury Recurrence Form, the applicant said that he would occasionally feel stiffness in his lower back. Asked whether he felt he had fully recovered from the 2018 injury, the applicant responded that he had some occasional symptoms but overall felt he had recovered. Dr Khong took a history of persisting lower back pain but being able to “manage it”.
At the time of Dr Powell’s first report, which was dated 25 October 2018, the applicant had reported dull pain and intermittent sharp pain on a daily basis as well as intermittent tingling affecting the ball of the left foot, stiffness and restriction in range of motion. Consistently with the evidence above, however, Dr Powell expressed the view on that occasion that the applicant’s symptoms did seem to be settling. The history given to Dr Powell in the preparation of his supplementary report also referred to some ongoing lower back pain following the return to pre-injury duties in 2019.
The evidence indicates that on 5 February 2021, the applicant experienced an acute increase or change in his lumbar symptoms from those which had been experienced over the course of the previous 21 months. Although the symptoms and indeed the pathology identified as causative of the applicant’s symptoms appeared to be similar to if not the same as those associated with the 2018 injury, I accept that the applicant’s experience of symptoms suddenly became more intense or serious on that date.
The evidence does not suggest an idiopathic or spontaneous increase in symptoms consistently with earlier flare ups. Rather, the increase has been universally attributed a particularly heavy morning of work lifting cartons of soft drink onto a sorter.
The applicant gave evidence that the acute onset of symptoms occurred in the context of repetitive lifting of cartons of soft drink weighing approximately 13 kg that morning. The applicant described his symptoms as involving sharp pain and stiffness which did not go away and left the applicant unable to stand straight. The symptoms were such that the applicant was unable to continue on with his work and obtained certificates certifying him unfit for work from Dr Aktar.
Although the applicant completed a workers injury recurrence form, suggesting a continuation of the 2018 injury, the medical evidence is consistent with there having been a new injury on 5 February 2021. Dr Aktar, whilst referring to the pathology seen on radiological investigations in 2018, issued SIRA certificates of capacity and responded to the insurer’s questionnaire, identifying a new date of injury described as an “exacerbation” at work.
Dr Lim described an injury on 5 February 2021 in his reports due to repetitive lifting, twisting, pushing and pulling on 5 February 2021. Dr Lim diagnosed an “aggravation” of the multilevel disc pathology identified previously.
Dr Singh also described an “aggravation” during repetitive lifting, twisting, pushing and pulling on 5 February 2021.
Dr Khong took a history of the applicant packing on 5 February 2021 and feeling sharp pain in the lower back as well as pain radiating down the left buttock and posterior thigh, which was now constant.
Dr Powell described the incident in February 2021 as most likely representing a musculoligamentous injury and aggravation of the underlying multilevel degenerative lumbar disc disease. The “injuries” in 2016 and September 2018 had been described in the same terms.
The evidence of an increase or intensification of the applicant’s lumbar spine and leg symptoms, rendering him unable to continue on with work, caused by the applicant’s particular duties on 5 February 2021, is consistent with there having been an aggravation, acceleration, exacerbation or deterioration in the course of employment of the pre-existing degenerative disease at the applicant’s lumbar spine for the purposes of s 4(b)(ii) of the 1987 Act. The evidence also indicates that applicant’s employment with the respondent was the main contributing factor to such aggravation or exacerbation.
In Federal Broom Co Pty Ltd v Semlitch[2] (Semlitch), Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.
[2] [1964] HCA 34; (1964) 110 CLR 626.
Burke CCJ, applying Semlitch in Cant v Catholic Schools Office[3] said:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
[3] [2000] NSWCC 37; (2000) 20 NSWCCR 88.
In Rural Press Limited v Hancock[4], Moore ADP said:
“The proper test then is whether the aggravation to which the employment was a contributing factor had some tangible effect on the worker. It is not necessary for the particular disease to be made worse.
…It is clear that symptoms or pain brought on by work activity may constitute a relevant aggravation even though no pathological change to the underlying condition has occurred (Commonwealth of Australia v Beattie). What is necessary to decide is whether the manifestation of symptoms is sufficient to establish “injury”, or, in other words, whether the symptoms were made worse by the work duties described.”
[4] [2009] NSWWCCPD 160.
The applicant submits that the injury is one falling within both s 4(b)(ii) and /or s 4(a). It is possible, of course, for an injury to satisfy both aspects of the s 4 definition[5]. An injury for the purposes of s 4(a) of the 1987 Act may be established where there is a sudden identifiable physiological change to the body brought about by an internal or external event[6]. In this regard I note that Dr Powell has described the events on 5 February 2021 as bringing about a “musculoligamentous injury of the lumbar spine” as well as an aggravation of multilevel degenerative disc disease. This appears to be evidence of a personal injury to which employment was a substantial contributing factor consistently with ss 4(a) and 9A of the 1987 Act. The applicant’s treating doctors and Dr Khong, however, have employed the language of s 4(b)(ii) in giving a diagnosis and are less clear about the nature of any pathological change.
[5] See, for example, Hodgson JA at [68] in Rail Services Australia v Dimovski [2004] NSWCA 267; (2004) 1 DDCR 648; and Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310.
[6] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 per Brennan CJ, Dawson and Gaudron JJ at 716.
Ultimately, it is not necessary to decide, for the purpose of these proceedings, whether the injury also falls within s 4(a). It is sufficient that I am satisfied that the events on 5 February 2021, gave rise to a new injury pursuant to s 4(b)(ii) of the 1987 Act.
Capacity
There does not appear to be any dispute between the parties that in the period on and from 16 June 2021, the applicant has been incapacitated for work. Weekly payments have, in this period, continued to be paid, albeit on the basis that the applicant retained current work capacity. The extent of incapacity is what is in dispute.
The respondent’s submissions draw attention to the evidence given by Dr Aktar in the period between 5 February 2021 and 16 June 2021 indicating that the applicant was fit to work 12 hours per week. The respondent’s dispute notices also note, amongst other things, the applicant’s participation in training events without apparent difficulty in the same period.
The applicant has explained that the relevant training accommodated his symptoms. The applicant also gave evidence that he had time off work for personal reasons and to undergo treatment for a non-work-related condition for several months. The applicant said that although he had briefly attempted a return to work in February 2021 in accordance with
Dr Aktar’s restrictions, he found the pain and discomfort very difficult to manage.The restrictions described by Dr Aktar in her certificates were not confined to working hours. It is of note that Dr Aktar certified that the applicant should not lift or carry and should avoid bending, twisting, squatting, pushing and pulling. These restrictions would appear to significantly curtail the range of physical duties the applicant could safely perform in “suitable employment”. As noted by Dr Lim and consistently with the applicant’s evidence as to his prior work history, physical work is all the applicant had ever done.
Dr Aktar also noted in one of her last certificates that the applicant had not been to see a neurosurgeon as recommended. Dr Aktar’s opinion on capacity was therefore given without the benefit of specialist input, which she had regarded as necessary.
Notwithstanding the time off work between March and May 2021, there is evidence of a gradual deterioration in the applicant’s lumbar symptoms. Dr Singh, for example, took a history of the applicant’s pain getting worse over the few months prior to his initial consultation with the applicant on 8 July 2021. The applicant was no longer able to mow his garden and had to lie down on floorboards to get relief.
By the time his statement evidence was prepared, on 25 October 2021, the applicant stated that even the most innocuous tasks or movements could produce a major flareup of symptoms. The applicant’s pain was said to be exacerbated by lifting, strenuous activity and sitting or standing for more than 20 minutes at a time.
Dr Lim’s opinion on the applicant’s capacity for work from 16 June 2021 onwards is consistent with the opinions given by Dr Singh and Dr Khong. Although it has been noted by the respondent that some professional relationship may exist between Dr Lim and Dr Singh,
I am not satisfied that even if such relationship did exist, it would, of itself, constitute a proper basis for discounting their separately expressed professional opinions.It is also of note that Dr Powell does not give a clear countervailing opinion on the issue of capacity. Dr Powell accepted, in his supplementary report, that the 5 February 2021 aggravation was ongoing. Although he agreed that Dr Aktar’s opinion on capacity appeared reasonable based on his telehealth examination, he did not express disagreement with the opinions given by Dr Lim, Dr Singh and Dr Khong. Dr Powell effectively declined to give a definitive opinion of his own, saying he would feel more comfortable doing so after a physical examination of the applicant.
In summary, Dr Aktar’s evidence, when carefully considered in the context of the applicant’s work history, suggested very little capacity for work. There is evidence before me that the applicant struggled to work in accordance with those restrictions. Dr Aktar’s evidence
pre-dates the period in which weekly compensation is claimed in these proceedings and there is evidence of a deterioration of the applicant’s condition. Consistent opinions that the applicant lacked current work capacity as a result of the 5 February 2021 injury have been given by the applicant’s treating doctors and medicolegal expert. In the absence of a definitive opinion from Dr Powell, on weighing all the evidence, I am satisfied that the applicant had no current work capacity from 16 June 2021 to date and continuing as a result of the injury on 5 February 2021.The list of payments attached to the Reply suggests that the applicant had received in excess of 13 weeks of weekly payments following on from the 5 February 2021 injury as at 16 June 2021. As a result of my findings above, the applicant will be entitled to weekly compensation pursuant to s 37(1) of the 1987 Act, based on the agreed PIAWE figure of $1,499.28 (as periodically indexed) from 16 June 2021 to date and continuing.
It is appropriate that the respondent have credit for payments already made in this period.
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