Guest v Coles Supermarkets Australia Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Guest v Coles Supermarkets Australia Pty Limited [2024] NSWPIC 157
APPLICANT:	Michelle Hannah Guest
RESPONDENT:	Coles Supermarket Australia Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	28 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses; whether effect of accepted injury has passed and therefore the proposed installation of a spinal cord stimulator is reasonably necessary as a result of that injury, and whether the applicant has any incapacity for employment as a result of her injury; Held – a party which asserts the effects of an accepted injury have passed or the injury has resolved carries the onus of proof on that question; reference to Commonwealth v Muratore and University of New South Wales v Books; the effects of the applicant’s injury are ongoing; as a result of her injury, the applicant suffered total incapacity for the period of weekly compensation claimed; the insertion of the permanent spinal cord stimulator recommended by Dr Russo is reasonably necessary as a result of the injury; respondent to pay the applicant weekly compensation as claimed; respondent to pay the costs of and incidental to the insertion of the permanent spinal cord stimulator.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her spine in the course of her employment with the respondent with a deemed date of injury of 15 January 2017. 2. At the date of injury, the applicant’s pre-injury average weekly earnings were $580 per week. 3. The insertion of the spinal cord stimulator as recommended by Dr Russo is reasonably necessary as a result of the applicant’s injury. 4. The respondent is to pay the costs of and incidental to the insertion of the spinal cord stimulator as recommended by Dr Russo in accordance with the SIRA rates. 5. As a result of her injury, the applicant had no capacity for employment for the period 9 March 2020 to 3 September 2022. 6. The respondent is to pay the applicant weekly compensation at the rate of $464 per week (being 80% of her pre-injury average weekly earnings) for the period 9 March 2020 to 3 September 2022. 7. The respondent is to otherwise pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 save that there will be an award for the respondent on the claim for medical expenses with respect to weight loss expenses.

STATEMENT OF REASONS

BACKGROUND

The applicant, Michelle Hannah Guest was employed by Coles Supermarkets Australia Pty Ltd (the respondent) in its Gunnedah Store on a part time basis, working 20 hours per week. The applicant predominantly worked in the delicatessen section but also carried out duties in the dairy and freezer section including unpacking products and restocking shelves.
On 15 January 2017, the applicant was rostered to work from 11.00am to 4.00pm and worked from midday in the dairy section. During the course of her employment on this date, the applicant was unpacking and restocking shelves in the dairy section. There is no issue that during the course of that shift, the applicant suffered an injury. The respondent, however, asserts the applicant’s injury, which it says was in the nature of a neck strain, has resolved.
The applicant brings proceedings seeking payment of weekly compensation from 9 March 2020 to 3 September 2022. Additionally, she seeks a general order for the payment of medical and treatment expenses together with an order pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) for the insertion of a permanent spinal cord stimulator in her thoracic spine.

ISSUES IN DISPUTE

The parties agree that the following issues remain in dispute:
(a)    whether the applicant’s injury has resolved;
(b)    whether the insertion of a spinal cord stimulator is reasonably necessary as a result of any work related injury, and
(c)    whether the applicant suffered incapacity for employment during the period claimed, and if so, to what extent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing on 25 January 2024. At the hearing, the applicant was represented by Mr Hickey instructed by Mr Grady. The respondent was represented by Mr Grant of counsel instructed by Ms Cotchett.
At the conclusion of the hearing, a direction was issued for the parties to lodge any further submissions in relation to the applicant’s pre-injury average weekly earnings (PIAWE). At the hearing, the applicant asserted her PIAWE was $580 per week. The respondent submitted at the hearing that the PIAWE was in fact $522.24 per week.
Neither party availed themselves of the opportunity to present further submissions (or indeed evidence) in relation to the applicant’s PIAWE.
At the preliminary conference of this matter, no issue was raised with the applicant’s pleaded PIAWE. Additionally, no competing wages schedules were lodged by the parties and no payroll evidence was put before the Personal Injury Commission (Commission) in relation to the applicant’s PIAWE.
In the circumstances, given the parties did not lodge any further written submissions nor lodge any evidence to contest the pleaded PIAWE, I accept the applicant’s calculation.
That figure was unchallenged until the hearing, at which time leave was granted to the parties to make further submissions in relation to this issue, however, neither did so. Absent the respondent providing substantive submissions and/ or evidence to support its assertion of a lower PIAWE where that issue was only raised late in the proceedings, I am minded to accept the applicant’s initial position, which until the hearing went unchallenged and was not the subject of evidence put forward by the respondent to contradict it.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)   Application to Resolve a Dispute (the Application) and attached documents;
(b)   Reply and attached documents, and
(c)    respondent’s Application to Admit Late Documents (AALD) and attachments dated 20 October 2023.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS
Whether the effects of the applicant’s injury have passed

A party which asserts the effects of an accepted injury have passed or the injury has resolved carries the onus of proof on that question: see Commonwealth v Muratore (1978) 141 CLR 296 and University of New South Wales v Books [2014] NSWWCCPD 68.
As such, it is incumbent upon the respondent to prove the effects of the applicant’s accepted injury, for which it had previously paid compensation, have passed. For the following reasons, I do not believe that onus has been discharged.
The respondent relies upon the report of Dr Rimmer, independent medical examiner (IME) dated 7 May 2020. In that report, Dr Rimmer concluded there was no ongoing physical condition as a result of the applicant’s employment with Coles given his examination of the applicant.
Dr Rimmer was of the view the view the applicant was displaying abnormal illness behaviour of an inorganic nature rather than a physical condition. In an earlier report dated 28 March 2018, in which Dr Rimmer also opined the applicant displayed abnormal illness behaviour, the doctor noted the applicant stated the treatment modality she was undergoing from treating pain management specialist, Dr Russo, by way of cervical spine nerve block and heat pulse therapy were not helping, and in fact only increased her pain. Dr Rimmer therefore opined that those treatment modalities were inappropriate. Dr Rimmer stated:
“I do not believe she has any genuine ongoing injury. The mere fact that on my two assessments, Ms Guest was adamant that as a result of lifting milk crates by that evening, not only her left upper limb but her left lower limb was in severe pain. This she repeated to me on a number of occasions in today’s assessment. This in itself is a bizarre allegation and confirms my diagnosis of abnormal illness behaviour.”
In accordance with his findings, Dr Rimmer alleged there was no neurogenic thoracic outlet syndrome being suffered by the applicant or cervical joint arthropathy. In terms of the applicant’s physical condition, Dr Rimmer regarded her prognosis as excellent.
By contrast, the applicant’s IME, Dr Oates, described the applicant’s current symptoms in his report of 22 November 2019 as follows:
“She has burning pain in the left upper outer arm to the elbow and then pain in the left lateral neck, shoulder and upper left pectorals, and to the left scapula and infraclavicular area. There is less pain in the forearm, and then the pain is present in the left wrist and hand and has a burning quality. Tingling comes and goes in all areas above, affecting the back of her head and all fingers of the left hand. She gets occipital headaches. The pain at the back of her head increases if she laughs. She cannot drive except locally and not using her left hand. She has difficulty turning her head to check the blind spot whilst driving. Her sleep is disturbed by her pain.”
Dr Oates commented on the applicant’s results from a seven-day trial of a spinal cord stimulator which had been inserted by Dr Russo. After finding the applicant’s employment was a substantial contributing factor to a diagnosis of thoracic outlet syndrome secondary to scalene muscle spasm with brachial plexus irritation, Dr Oates noted:
“It seems she had a reasonably good result from a seven-day trial of spinal cord stimulation and, as such, if she has been assessed as psychologically able to deal with the procedure, I consider that the implantation of a permanent spinal cord stimulator is reasonably necessary at this time. I assume a psychological assessment was undertaken prior to the insertion of the trial SCS.”
Dr Oates’ opinion is supported by that of treating pain specialist, Dr Russo. In a report dated 15 March 2019, Dr Russo diagnosed the applicant as suffering chronic neuropathic pain of the left upper limb and that the most effective way to control those symptoms would be with a spinal cord stimulator.
In August 2019, the applicant underwent a seven-day trial of a spinal cord stimulator under the guidance of Dr Russo. She described having pain relief as a result of that treatment, albeit incomplete. In a supplementary statement dated 18 February 2020, the applicant said:
“Dr Russo has advised my condition is permanent. Dr Russo has recommended a spinal cord stimulation. I have already had a trial of the spinal cord stimulation and although it did not completely get rid of my pain, it certainly did assist in reducing my pain. I would like to proceed with the permanent spinal cord stimulation.”
In accordance with the views of both Dr Oates and Dr Russo, the applicant was referred for psychological assessment to determine her suitability or otherwise for proposed spinal cord stimulator procedure. In a report dated 21 August 2020, Dr Michael Shelley, health psychologist assessed the applicant as a good candidate for a spinal cord stimulator. Dr Shelley said:
“She has extremely severe reactive depressive symptoms. She has been seeing a psychologist, Heather Vernon, with good rapport. I have discussed this with Heather Vernon and she is able to support Michelle over the stimulator episode of care. With that in place, I believe Michelle is likely to benefit from the implant.
Therefore, in my opinion, she’s a good candidate for the SCS. However, she will need a significant support to help her to manage her somatic symptoms and will require supportive psychotherapy. For the time of the medical treatment, she will require two weekly visits with her psychologist. This will help her to manage and progress towards her goals. I would be happy to see her for a supportive appointment if she could come to Newcastle for an appointment with Scott from Workplace Physio.”
The applicant’s own evidence is she continues to suffer from the effects of her injury. In a statement dated 7 June 2023, the applicant said:
“12. The pain in my neck presents as a constant sharp pain of a severity of about a four out of ten, where ten is the most painful and severe. It is easily aggravated by bending or twisting my neck, by excessive movement throughout the day and by cold temperatures. When aggravated, the pain increases to a severity of about a six out of ten and becomes accompanied by headaches. Whenever I laugh, severe pain shoots from the back of my head and neck, down my left shoulder. In addition, I experience sporadic burning and tingling sensations, which spread from my neck across both shoulders and into my back.
13.    The pain in my left shoulder presents as a constant sharp pain of a severity of a four out of ten. It is easily aggravated by excessive movement and cold temperatures. When aggravated, the pain increases to a severity of about six out of ten…
15.    Due to the pain in my shoulder and neck, performing tasks at high elevations, which require the lifting of my arms and bending of my neck, have become impossible for me to perform. Due to this, I can no longer attend to hanging washing on the clothesline, cleaning high surfaces or retrieving items from high cupboards or shelves.
16.    I am capable of standing for periods of about twenty minutes prior to being requires to sit. I am capable of sitting for periods of about twenty minutes prior to being requires to stand and move. I am capable of walking for distances of about one or two kilometres before my pain becomes unbearable and I am required to stop.
17.    In respect to daily tasks, I am now required to take breaks every five minutes when performing vacuuming or mopping. When performing tasks which require frequent and repetitive movement, such as folding clothes, I must stop after about five minutes, at which time my pain becomes unbearable. I am incapable of performing tasks which require the over-extension of my arms and shoulders, such as reaching into a bathtub to clean it. I struggle to perform tasks which require prolonged periods of standing, such as washing the dishes or preparing meals. I am completely incapable of performing gardening or mowing the lawn.
18.    When the pain of my injuries becomes aggravated, I become incapable of showering, dressing and undressing myself, as even small movement becomes excruciating. Even when not aggravated, tasks such as doing my hair and makeup are now incredibly difficult, requiring that I take regular breaks throughout the process, often resulting in them taking several hours. I also now often cannot wear a bra, both because putting one on is difficult and painful and because the tightness of the bra itself causes additional pain.
19.    Due to my injuries, I am now only able to perform my hobby of crochet for periods of about ten minutes at a time. I am now unable to walk my dogs any longer, as I cannot hold and use the leash. It has become incredibly difficult and painful for me to attend my children's football games, which are held every weekend. Though I now sometimes miss the games due to my pain, I still attempt to attend as many as I can, though my pain becomes excruciating from doing so.
20.    I am no longer capable of driving for longer than only about five minutes. Due to this, I can no longer travel far from the vicinity of my home. I can no longer visit friends and family, such as those at Tamworth or even on the other side of Gunnedah. I can no longer go on holidays and when I do have to travel, such as to attend medical appointments, I am required to arrange for others to be available to drive me, which is rarely convenient. I am no longer capable of driving to perform grocery shopping and am now required to have my groceries delivered, which incurs an additional delivery fee.
21.    As a result of my injuries, I now typically achieve, on average, about two to three hours of sleep each night. In contrast, prior to my injuries, I would regularly achieve eight or nine hours of sleep every night. Due to this, I now often experience drowsiness throughout the days and will usually require a nap on a daily basis. At times, due to my medication and exhaustion, I have fallen asleep at inconvenient times, such as the morning when my children are required to get ready for school. My children have missed school or recreational activities due to this. At other times when I have fallen asleep, my partner has been required to leave his work to come back home, collect the children and drive them to school, which can take several hours out of his work day to perform.
22.    Due to my injuries, it is now incredibly painful to engage in intimacy with my partner and I no longer do so as a result.
23.    My injuries and the limitations which they impose upon me have also had a negative effect upon my mental health. I now experience depressive and anxious moods and suffer from a reduced motivation to socialise or to perform tasks which I anticipate will be painful and difficult to complete. I have also begun to experience difficulties with my memory, such as occasionally forgetting to take medication. This was not an issue prior to my injuries.”
The complaints of the applicant are consistent with those contained in the medical material. The fact the applicant obtained some benefit from the temporary spinal cord stimulator is, in my view, significant. The authorities are clear that for a proposed treatment modality to be reasonably necessary, it need not provide a complete cure. The fact the applicant obtained benefit from the temporary stimulator is persuasive in establishing that she continues to suffer a physical impairment as a result of her injury, rather than from abnormal illness behaviour as opined by Dr Rimmer.
On balance, I prefer the views of Dr Oates, supported as they are by treating specialist, Dr Russo. As a treating specialist, Dr Russo’s views are entitled to be given significant weight unless it can be shown that he either obtained a demonstrably and significantly inaccurate history or that his views are otherwise not provided in a fair climate. Absent such an attack in this matter, I am minded to accept the views of Dr Russo, supportive as they are of those of Dr Oates.
Accordingly, I find the effects of the applicant’s injury are ongoing, and that the nature of the injury as described by Dr Oates and Dr Russo is, on a common sense basis, consistent with the complaints of the applicant.
In reaching this finding, I also note the comments of Dr Oates in his initial report in which he noted thoracic outlet syndrome is often not demonstrated on radiological investigation. Dr Oates stated:
“As is usually the case with thoracic outlet syndrome, it is a clinical diagnosis in the main, with investigations rarely being specific enough to confirm the diagnosis, except for cervical rib for example. Sometimes the cases are subjected to surgery to decompress the nerves at the root of the neck, but she has seen a neurosurgeon who advised against a surgical approach to her problem.”
In my view, that statement by Dr Oates is important, as it answers one of the criticisms of the ongoing nature of the applicant’s condition as set out by Dr Rimmer, namely an absence of pathology demonstrated on radiological investigation.
For the above reasons, I find the applicant’s injury is ongoing, and is of the nature as set out by Dr Oates, supported as it is by the views of treating pain specialist Dr Russo.

Reasonable necessity of the proposed spinal cord stimulator

The respondent’s attack on the reasonable necessity of the proposed spinal cord stimulator was based on the report of Dr Rimmer that the applicant no longer suffered the effects of any physical injury. Quite appropriately, no attack was made on the proposed treatment in the event the finding was made as to ongoing physical problems.
Keeping in mind the relief the applicant obtained from the temporary spinal cord stimulator, and having found the applicant continues to suffer from a physical injury, I am of the view the proposed treatment is reasonably necessary and that it should be provided to the applicant rather than be forborne. No attack was made on the suitability of the specific treatment modality in the event the applicant was found to have a physical impairment, or on questions such as its proposed cost.
Having found the applicant continues to suffer the effects of an ongoing physical injury, it follows from the manner in which these proceedings have been conducted and from my findings set out above, that the proposed spinal cord stimulator is reasonably necessary as a result of the applicant’s injury.
Accordingly, there will be an order that the respondent pay the cost of and incidental to the spinal cord stimulator.

Medical expenses generally

The applicant seeks a general order with respect to medical and treatment expenses. As part of his submissions, Mr Grant submitted the medical expenses relating to dietary expenses claimed by the applicant ought to be excluded on the basis there is no material to support their inclusion. I accept that submission. Although the applicant provided a statement indicating she had gained significant weight, which I do not dispute, there is no medical opinion provided to support the provision of weight loss procedures and material as part of the applicant’s claim. Accordingly, there will be an order that the respondent pay the applicant’s reasonably necessary medical and treatment expenses, save for the claimed expenses relating to weight loss.

Capacity for employment

As was the case with the medical expenses claim, the respondent relied on the view of Dr Rimmer in alleging the applicant had capacity for employment during the period claimed. Having found against the views of Dr Rimmer, it follows I accept those of Drs Russo and Oates with respect to the applicant’s capacity and find that she was totally incapacitated for the period claimed, namely 9 March 2020 to 3 September 2022. For the reasons set out under the heading Procedure Before the Commission above, I find the applicant’s PIAWE were $580 per week. Eighty percent of that figure is therefore $464 per week, and the respondent will be ordered to pay the applicant weekly compensation in terms set out on page 1 of the Certificate of Determination accordingly.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on Page 1 of the Certificate of Determination.

[2024] NSWPIC 157

28 March 2024