Hackett v Chatswood RSL Club
[2024] NSWPIC 379
•15 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hackett v Chatswood RSL Club & Anor [2024] NSWPIC 379 |
| APPLICANT: | Steven Hackett |
| FIRST RESPONDENT: | Chatswood RSL Club |
| SECOND RESPONDENT | Horte Grade Pty Limited |
| MEMBER: | Paul Sweeney |
| DATE OF DECISION: | 15 July 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and section 60 medical or related treatment expenses; alleged injury with two respondents; claimant asserts that his incapacity after 5 December 2023 solely results from injury in the employ of the first respondent and that his pre-injury average weekly earnings should be based on that injury; no application for apportionment pursuant to section 22; Cluff v Dorahy Bros (Wholesale) Pty Ltd considered and applied; Held – the applicant’s incapacity after 5 December 2023 was caused by both injuries. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered injury to his low back arising out of and in the course of his employment with the first respondent on 27 September 2017 namely an L5/S1 disc protrusion. 2. The applicant suffered further injury to his low back namely a recurrence of the L5/S1 disc protrusion deemed to have occurred on 25 August 2023 in the employment of the second respondent. 3. That the applicant’s incapacity for work after 25 August 2023 results from both injuries. 4. Note that the claim for medical and hospital expenses pursuant to s 60 has been resolved. 5. Liberty to apply in the absence of agreement in respect of apportionment of liability pursuant to s 22 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
These proceedings are concerned with which of the two respondents named in the Application to Resolve a Dispute (Application) should pay weekly compensation. A resolution of that issue will also determine the quantum of weekly compensation.
Steven Hackett (the applicant) has a long history of severe back problems. In 2004, while working for the Gordon Rugby Club, he suffered an injury to his back which required surgery in the form of a laminectomy and discectomy at L5/S1. He made a good recovery from the surgery and returned to his employment with the Rugby Club.
In 2011, the applicant found work as a hospitality manager at the Chatswood RSL Club (the first respondent). Unfortunately, on 27 September 2017, he suffered a further injury to his low back. He underwent further surgery to his low back on 14 February 2018. While the applicant was able to resume work following this surgery, he continued to suffer symptoms in his low back and, subsequently, in his right leg.
In February 2022, the applicant commenced employment with Horte Grade Pty Limited (the second respondent). In August 2023, he experienced increasing pain in his back and right leg. He ceased work on 25 August 2023. On 13 February 2018, the applicant underwent a further operative procedure at L5/S1. Unfortunately, he remains troubled by low back pain and has been unable to return to employment. He has also developed a psychological condition, which his treating psychiatrist attributes to the back injuries and their sequelae.
The applicant was paid compensation until 5 December 2023 by the insurer of the first respondent, Hospitality Industry Insurance (HII). The cessation of weekly payments occurred following the issue of a dispute notice by HII dated 22 November 2023 by which it asserted that the applicant’s incapacity for work did not result from injury in the course of his employment with the first respondent.
Since 5 December 2023, the applicant has been paid weekly payments of compensation by QBE as agent for iCare Workers Insurance, the insurer of the second respondent. His weekly compensation, however, is a substantially lesser amount than that previously paid reflecting his diminished pre-injury average weekly earnings (PIAWE) in the employ of the second respondent.
PROCEDURE BEFORE THE COMMISSION
By these proceedings, the applicant claims the cost of past and future medical treatment pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). He also claims weekly payments of compensation from 5 December 2023 at the rate of $1,480 based on his PIAWE with the first respondent.
The Application nominates two injuries. An injury on 27 September 2017, in the employ of the first respondent which occurred when the applicant was moving “40 beer kegs weighing 60kg” along a wetted-down floor. Secondly, an injury in the employ of the second respondent which was deemed to have occurred on 25 August 2023 as a result of:
“Injury to his lumbar spine caused by and while he was engaged in his normal duties as a gardener.”
The deemed date reflects a “disease injury” within s 4 (b) and s 15, or more likely, s 16 of the 1987 Act.
When the matter came on for a conciliation conference and arbitration hearing on
27 June 2024, Mr Morgan, of counsel, appeared for the applicant, Mr Coombes, of counsel, for the first respondent, and Ms Compton, of counsel, for the second respondent.I was informed by counsel that the applicant did not wish to press the claim for medical and hospital expenses in the Application as these were being met by the respondents. I was also advised that the applicant would continue to be paid weekly compensation by the second respondent based on a PIAWE of $882.80 per week. The applicant contended, however, that the evidence before the Personal Injury Commission (Commission) required that he be compensated by the first respondent at the rate of $1,480 per week. He contended that his incapacity for work at all material times solely resulted from the injury with the first respondent on 27 September 2017. The subsequent injury with the second respondent on 25 August 2023 did not materially contribute to his incapacity.
I enquired of the parties what orders should be made if the applicant was unsuccessful in this contention. I specifically enquired as to whether, if the applicant’s incapacity resulted from both injuries, I should apportion liability pursuant to s 22 of the 1987 Act between the respondents. It was accepted by all parties that I should not apportion. Mr Morgan conceded that if I found that the applicant’s incapacity resulted from both injuries, he was not entitled to have his compensation assessed in accordance with his PIAWE in the employ of the first respondent.
EVIDENCE
The evidence before the Commission is as follows:
(a) the Application and the documents attached;
(b) the Reply by the first respondent and the documents attached;
(c) an Application to Admit Late Documents dated 20 June 2024 and the documents attached, and
(d) an Application to Admit Late Documents dated 26 June 2024 including the respondent’s Reply and a list of payments by QBE.
There was no objection to any of the material referred to above at the arbitration hearing. There was no application to adduce further written or oral evidence.
SUBMISSIONS
As the submissions of the parties are recorded, I do not propose to reiterate each of their arguments in these short reasons. Each party referred me to aspects of the applicant’s evidence and the medical evidence which supported the argument that the applicant’s incapacity did or did not wholly result from injury in the course of his employment with the first respondent. Mr Morgan specifically relied on the opinion of Dr Benson Pek, an occupational physician, qualified by the applicant. However, he also referred to the evidence of Dr Farey, the applicant’s treating neurosurgeon and to aspects of the applicant’s treatment record.
Mr Coombes relied on the evidence of Dr Moloney, a neurosurgeon, who provided a report to HII and on entries in the medical notes of the applicant’s treating general practitioner which he submitted supported a finding of injury in the employ of the second respondent.
Ms Compton supported the argument made by Mr Morgan.It will be necessary to return to the arguments of counsel in resolving the dispute below. It is first necessary, however, to set out compendiously the evidence of the applicant and of the qualified medical practitioners on which the parties rely. What follows is not intended to be a comprehensive survey of the evidence of these witnesses. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved their dispute.
Applicant
The applicant’s evidence is contained in a written statement of 12 April 2024. He was not cross-examined on that statement.
The applicant recounts that he sustained a back injury at the Gordon Rugby Club in 2004 while performing the work of an operations manager. He states that he underwent a laminectomy and discectomy at L4/L5 under Dr Ian Farey, the neurosurgeon. He returned to work “with normal pre-injury duties within 4 months with no functional limitation until the injury in 2017”.
The applicant says that he was employed by the first respondent as a hospitality manager from 2011. He states:
“On 27 September 2017 I had moved multiple beer kegs weighing about 60kg each keg, along a wet floor. While sliding one of the kegs from right to left, I felt my back spasm with immediate pain and electric shocks radiating down my right leg to my great toe. I took pain relief that evening.”
The applicant came under the care of his general practitioner Dr Cholakyan. After undergoing an MRI scan, he was referred to Dr Farey, who operated on his low back on
14 February 2018. The applicant continues:“I haven’t been the same since. The surgery did reduce the pain and over the next 6 or so months I slowly got to a point in which I was able to resume work at RSL as a compliance officer.”
The applicant says that, between 2019 and 2023, his back and right leg pain “gradually got worse”. It prevented him from bending to empty the dishwasher. During this period, he also experienced right leg weakness, particularly at the end of a working week.
In the hope of obtaining more suitable employment, the applicant found work with the second respondent in February 2022. He says:
“The owner of the business was a friend of mine who was aware of my condition and provided suitable work. I was employed to do light hand weeding, mowing, edging, watering and planting of small plants. Most of the lifting was light, no more than hand tools, watering cans, hoses and small potted plants.”
The applicant says that he managed well doing this work on a casual basis. However, between 23 August 2023 and 25 August 2023 while performing his usual duties, he experienced “a gradual increase of pain in my back and right leg”. He recounts that by 25 August 2023 everything he did made his pain worse “until I was unable to complete my work”.
The applicant ceased work on 25 August 2023, sought advice from his general practitioner and was referred back to Dr Farey. By September 2023, after the failure of conservative treatment, Dr Farey recommended surgery. This led to some amelioration of his symptoms, although he still experienced significant back and leg pain. He also became depressed and came under the care of Dr Singer, a psychiatrist, and Ms Hando, a psychologist, who treated him for his “emotional distress”. The applicant records that he is currently unable to work. He continues to suffer significant symptoms and is also unable to perform recreational and domestic tasks.
Dr Benson Pek
Dr Pek provided a report to the applicant’s solicitor dated 29 January 2024. He recorded a history reasonably consistent with the applicant’s evidence. He recorded that the applicant recovered following his L5/S1 lumbar decompression on 14 February 2018. While he continued to have “minor back and leg symptoms”, he was able to work as a compliance officer and as a landscape gardener. The doctor recorded that the applicant’s back and right-leg pain “deteriorated gradually between 2019 and 2023”.
After reviewing the medical evidence contained in the letters of instruction dated 11 December 2023 and 22 December 2023, the doctor expressed the following opinion:
“The L5/S1 disc prolapse was unlikely to have occurred if not for the antecedent workplace injury on 27 September 2017. The nature of discectomy surgery leaves the disc structurally compromised, predisposing Mr Hackett to further accelerated deterioration in disc integrity. This increases his risk of subsequent recurrent prolapse.
Furthermore, Mr Hackett’s post-surgery duties at Chatswood RSL, reportedly still included some handling of 60kg beer kegs, however infrequent. In my opinion his employment with Chatswood RSL remains the main contributing factor to his deterioration between 2017 and 2023 which culminated with his acute recurrent L5/S1 disc prolapse. After leaving Chatswood RSL, he had limited occupational and non-occupational exposure to heavy lifting.
In my opinion there is a direct causal relationship between the 2017 workplace injury and the recurrent acute L5/S1 disc injury in 2023, requiring further surgery.”
Dr Pek recorded that, on examination, the applicant demonstrated a positive right straight leg raise suggesting nerve root tension on the right. That was consistent with his continuing radicular symptoms.
In answer to a series of questions posed by the applicant’s solicitor, the doctor reiterated his opinion that the applicant’s “aggravation on 23 August 2023 was unlikely to have occurred if not for the injury on 27 September 2017”. He further opined that the need for surgery on 12 December 2023 was “reasonably necessary as a consequence of the workplace injury on 27 September 2017”.
The doctor also stated that the applicant may require L5/S1 surgery in the future “if symptoms progress”.
Dr Peter Moloney
Dr Moloney provided a report to HII on 1 November 2023. He also recorded a history reasonably consistent with the applicant’s evidence. On examination, Dr Moloney found that the applicant had diminished straight leg raising and alteration to light touch over an L5 dermatomal distribution on the right side. He thought that the applicant had an extruded disc at L5/S1 compromising the transit of the right L5 nerve root. He thought that he would require further surgery at that level. He expressed the following opinion on causation:
“Mr Hackett was able to do his work as a Landscaper/gardener mowing edges, watering and weeding, but since the flare-up, he has not been able to carry out this work and, therefore I am of the opinion that his work, as a Landscaper/gardener has materially contributed to the need for surgical intervention.”
DISCUSSION AND FINDINGS
There is no reason to doubt that the injury on 27 September 2017 with its surgical aftermath left the applicant with a very vulnerable L5/S1 disc. That conclusion is shared by Dr Pek and the applicant’s treating neurosurgeon, Dr Farey. It is not refuted by Dr Moloney in his report of 1 November 2023. On the basis of this evidence, I have little difficulty in concluding that the injury of 27 September 2017 made a material contribution to the applicant’s incapacity after 25 August 2023. It did so because it left the applicant with a back which was vulnerable to further insult. In Cluff v Dorahy Bros (Wholesale) Pty Limited[1] Reynolds JA (Glass JA and Hope JA agreeing) stated at P176:
“It is well established that if a worker receives an injury in the course of his employment with A that renders him vulnerable to increased disability by the effects of further work and then in the employment of B the work brings about those effects that it is open to the tribunal of fact to hold that the ultimate incapacity resulted from the first injury in the employment of A and it is not to the point that if the worker had in these circumstances proceeded against B he might also have obtained an award in respect of the whole extent of his existing incapacity. It is also not open to doubt that if the worker receives a disability in the employment of A and subsequently receives an injury in the employment of B which is causally related to the original disability it is open to the tribunal to conclude that any incapacity arising from the second injury resulted from the first injury.”
[1] (1979) 53 WCR 167.
Cluff has been repeatedly followed by Members of the Commission and its statutory predecessors over many years. It is consistent with High Court authority including the reasoning in Calman v Commissioner of Police[2] Accident Compensation Commission v CEE Underwriting & Insurance (Aust) Pty Limited.[3] If proceedings were brought against the first respondent, it may be open to the Commission to make an award against the first respondent. However, that is not the case here. The applicant has brought proceedings against both respondents and the question I have to decide is circumscribed by the agreement of the parties.
[2] [1999] HCA 60.
[3] [1994] HCA 68.
The remaining question for determination is whether the applicant’s employment with the second respondent prior to 25 August 2023 also materially contributed to his incapacity for work after that date. Causation is a question of fact for the Commission: Seltsam Pty Limited v McGuinness, James Hardie & Coy Pty Limited v McGuinness.[4]
[4] [2000] NSWCA 29 (7 March 2000) (Seltsam Pty Limited).
Mr Morgan referred me to the description of the applicant’s duties which appear at several parts of the evidence. It is clear that the applicant’s work did not involve any heavy lifting, but it did involve prolonged squatting, frequent forward reaching, and occasional twisting when carrying out weeding and some forward reaching and bending when carrying out trimming and blowing tasks. In a Task Analysis performed by an occupational therapist Mr Weir of Sydney Occupational Services, the following appears:
“Many of the duties required of Mr Hackett in the role as a Landscape Gardener currently exceed his restrictions as placed on him by his NTD, Dr Cholakyan, in particular the restriction of “avoid repetitive actions” of bending/twisting, squatting is very limiting with this role, let alone (permitting) Mr Hackett to perform his Activities of Daily Living.”
Nevertheless, Mr Weir took the view that the applicant should be encouraged to perform the role as “if performed correctly” it could be viewed as an extension of his functional hardening program.
While the applicant reports a good recovery following the surgery in 2004, the notes of Dr Cholakyan’s practice records complaints of back pain from time to time for which the applicant was treated with Endone. It is also evident that following the surgery performed by Dr Farey on 14 February 2018, the applicant continued to complain of back pain. On
11 July 2019, for example, he was diagnosed by Dr Wright with lumbar back pain and mild left lumbar radiculopathy. He also experienced increases in back pain with sudden physical activity which placed strain on his trunk as recorded by Dr Cholakyan on 29 July 2020.On 1 October 2021, Dr Leanne Girgis recorded that the applicant had been having ongoing back problems for four years. He had been “on Endone for some time”. His back problems were worse in the last 2-3 weeks possibly triggered by walking over uneven flooring.
Nonetheless, when the applicant saw Dr Cholakyan, on 17 March 2022, he reported that he had been working using a back brace with no “real exacerbation of back pain”.
Then, on 24 August 2023, the applicant saw Dr Cholakyan and reported that he had a:
“Flare of lower back pain & stiffness. No definite precipitating cause.”
On 29 August 2023, the applicant was complaining of severe pain and requesting a prescription of Endone. An MRI scan taken shortly after this demonstrated an L5/S1 disc extrusion compressing the right S1 nerve.
Dr Mark Hardy, a pain specialist, saw the applicant at the request of HII on 2 October 2019 and on 20 May 2020. He took a history of some improvement in the applicant’s back pain following surgery followed by deterioration during COVID-19 lockdown. He expressed the opinion that the applicant had “chronic pain syndrome of his back and legs”. He also thought that he had a major depressive illness. He expressed the opinion that the applicant presented “without evidence of recurrent disc protrusion at the L5/S1 level”.
There is a short report from Dr Cholakyan dated 30 November 2023 which states that he had treated the applicant since 2011. He recorded that the applicant consulted him by phone on 24 August 2023, and, subsequently, in person on 28 August 2023:
“In regard to an exacerbation of his back injury, with similar but much more severe pain than he experienced with previous exacerbations. He had radicular pain in the right leg suggestive of acute disc prolapse.”
Dr Cholakyan expresses the opinion that the initial back injury and subsequent exacerbations “in particular the most recent episode” had a major detrimental effect on the applicant’s physical and mental wellbeing.
Dr Farey has treated the applicant since 10 August 2004. He operated on the applicant for an L5/S1 disc protrusion on two occasions in 2004. In 2018, he performed further surgery for “a large right sided L5/S1 disc protrusion with sequestration” caused by the injury in 2017.
Dr Farey saw the applicant on several occasions following his return to work. On
29 August 2019, he recorded that the applicant had developed back pain after making a bed. Nonetheless, neurological examination was normal at that time and a repeat MRI scan of 16 August 2019 did not reveal any evidence of recurrent disc protrusion at the L5/S1 level.Dr Farey reported that on 21 September 2023 the applicant provided a “5 week history of severe back pain and right lower limb pain”. On examination, the applicant had clearcut signs of disc protrusion on examination including an absent right ankle jerk. An MRI on
5 September 2023 revealed a recurrent right sided L5/S1 disc protrusion.In addressing the issues raised by the applicant’s solicitor, Dr Farey expressed the opinion that the injury in 2017 “made Mr Hackett more likely to sustain a further disc protrusion or aggravation of his underlying back pain”. He thought that the applicant would return to gainful employment. He added that:
“He should not return to work as a landscape gardener due to the fact that he would be subjected to activities which involve repetitive bending, heavy lifting and working in awkward conditions. He would be more suited to a sedentary role.”
While Dr Farey is emphatic that the applicant’s disc recurrence was caused by the original injury, a report of 20 November 2023 also implicates the work which the applicant performed for the second respondent. The doctor states:
“He has undertaken work as a landscape gardener and this has involved repetitive bending and heavy lifting and in my opinion this has resulted in him having further symptoms and recurrent disc protrusion at the L5/S1 level. This has necessitated the need for surgery.”
While the matter is not entirely free from doubt, it is tolerably clear that the applicant suffered a recurrent L5/S1 disc protrusion while performing work that involved some repetitive bending and twisting of the spine. Both Dr Farey and Dr Moloney, who are highly regarded neurosurgeons, express the opinion that the nature of the applicant’s employment for the second respondent caused an aggravation of the applicant’s underlying condition. It is true that Dr Farey does not assume an entirely accurate history in his supplementary report of
20 November 2023. Nonetheless, his history that the work involved repetitive bending is clearly borne out by other evidence in the matter. Aspects of that work were clearly contraindicated, as they exceeded the restrictions on physical activities contained in
Dr Cholakyan’s medical certificates.I accept that the applicant had an extremely vulnerable back following his earlier injuries and surgical intervention. Nonetheless, it is evident that there was both a symptomatic and pathological aggravation of the applicant’s low back while working for the second respondent, which has caused the need for surgical intervention. In those circumstances it is difficult to conclude that the effects of the injury have ceased as Ms Compton suggested.
While the causal potency of the 2017 injury may far outweigh that of the injury in 2023, that is not relevant to the issue that I am required to determine. I find that the applicant suffered injury to his L5/S1 disc on 27 September 2017 in the course of his employment with the first respondent and a recurrence of that condition deemed to have occurred on 25 August 2023 as a result of the nature of the work he performed prior to that date for the second respondent.
As the applicant has been paid compensation by the second respondent on a voluntary basis, I do not propose to make orders other than to note that the parties have resolved their dispute pursuant to s 60 and to give leave to apply pursuant to s 22 if apportionment between the respondents is not the subject of agreement.
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