Hallmann v Southern Cross University
[2022] NSWPIC 292
•15 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| Citation: | Hallmann v Southern Cross University [2022] NSWPIC 292 |
| APPLICANT: | Geoffrey Peter Hallmann |
| RESPONDENT: | Southern Cross University |
| Member: | John Isaksen |
| DATE OF DECISION: | 15 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments for aggravation of spinal injury and myalgic encephalomyeltits/ chronic fatigue syndrome (ME/CFS) while working from home during the covid pandemic; also orders sought pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act) for various home modifications and medical treatment; whether effects of the aggravation of spinal injury and ME/CFS had ceased; reference to AV v AW on employment being the main contributing factor to the aggravation of diseases; reference to Rose v Health Commission (NSW) in regard to claim for medical and related treatment; Held- worker continues to suffer the effects of aggravation of spinal injury and ME/CFS; worker has had partial incapacity for work since 1 December 2021 and award of weekly payments made; orders made for the respondent to pay for certain medical treatment and home modifications pursuant to section 60(5) of the 1987 Act. |
| determinations made: | 1. 1. The applicant sustained injury in the course of his employment with the respondent by way of a disease injury pursuant to section 4 (b)(ii) of the Workers Compensation Act 1987. 2. 2. The deemed date of injury pursuant to section 16 (1)(a) of the Workers Compensation Act 1987 is 1 July 2020, being the date of the applicant’s incapacity for that injury. 3. 3. The applicant has had a partial incapacity for work since 1 December 2021. 4. 4. The applicant has had a capacity to earn $340 per week from 1 December 2021. |
| ORDERS made: | 1. 1. The respondent is to pay weekly payments of compensation to the applicant pursuant to section 37 (3) of the Workers Compensation Act 1987 as follows: a. (a) $1,855.70 per week from 1 December 2021 to 31 March 2022; and b. (b) $1,884 per week from 1 April 2022 to date and continuing. c. 2. Pursuant to section 60 (5) of the Workers Compensation Act 1987, the respondent is to pay for the costs of trials of a suitable office chair to be used by the applicant in his home under the supervision of a medical practitioner, and to pay for a suitable office chair upon the recommendation of a medical practitioner. d. 3. Pursuant to section 60 (5) of the Workers Compensation Act 1987, the respondent is pay for the following: e. (a) Sealy Vienna plush king mattress; f. (b) 1800mm x 1500mm electric height adjustable work station; g. (c) ottoman; h. (d) air relax compression system; i. (e) wearable monitoring apparatus; j. (f) IV saline solution each month for the next year; and k. (g) Isagenix diet each week for the next six months. l. 4. The respondent is to pay for the cost of the Isagenix diet, consultations with Dr Bird and medications which have been incurred by the applicant, which have resulted from the work injury sustained by the applicant, pursuant to section 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
a.1. The applicant in these proceedings, Geoffrey Peter Hallmann, completed a claim form on 19 August 2020 wherein he stated that he had sustained injury in the course of his employment with the respondent, Southern Cross University, by way of aggravation of a back injury and aggravation of myalgic encephalomyeltits/chronic fatigue syndrome (ME/CFS) due to the use of an inappropriate chair which he had to use while working from home due to the covid pandemic.
b.2. The applicant has been employed by the respondent since 2008 as an ITAS Tutor.
c.3. The respondent initially accepted liability for this injury, and the applicant was paid weekly payments of compensation commencing on 1 July 2020.
d.4. A dispute notice was issued on behalf of the respondent by icare on 20 July 2021 wherein it was disputed that the respondent was liable to meet the costs of certain medical or related treatment as not being reasonably necessary as a result of the injury sustained by the applicant.
a.5. A further dispute notice was issued by icare on 7 October 2021 wherein the respondent disputed that the applicant was entitled to ongoing weekly payments of compensation and medical expenses on the grounds that any exacerbation of pre-existing ME/CFS had ceased. Weekly payments were to cease from 30 November 2021.
b.6. The applicant has filed an Application to Resolve a Dispute (ARD) claiming weekly payments of compensation from 1 December 2021 to date and continuing. The ARD also claims that the respondent is to pay for past medical expenses for an Isagenix diet, consultation with his general practitioner, Dr Bird, and medication.
c.7. The ARD also seeks an order pursuant to section 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pay for the following proposed medical treatment and modifications to the applicant’s home:
d. (a) king sized orthopaedic mattress;
e. (b) curved computer monitor screen;
f. (c) sit/stand desk and accessories;
g. (d) chair;
h. (e) air relax compression system;
i. (f) ottoman;
j. (g) wearable monitoring apparatus;
k. (h) IV Saline Solutions required on a monthly basis; and
l. (i) Isagenix diet required on a weekly basis.
ISSUES FOR DETERMINATION
a.8. The parties agree that the following issues remain in dispute:
b. (a) whether the effects of the injury sustained by the applicant in the course of his employment with the respondent have ceased;
c. (b) the extent of the applicant’s incapacity for work as a result of his injury (sections 32A, 33, and 37 and Schedule 3 of the 1987 Act); and
d. (c) whether the respondent is liable for past medical expenses incurred by the applicant for treatment for his injury and the medical or related treatment which has been proposed by the applicant’s treating doctor.
PROCEDURE BEFORE THE COMMISSION
a.9. The parties attended a conference and hearing on 31 May 2022. 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.
b.10. The applicant was self-represented. Mr Grant appeared for the respondent, instructed by Mr Galea.
c.11. The hearing was conducted by video in accordance with the protocols set out by the Personal Injury Commission (the Commission) due to the coronavirus pandemic.
EVIDENCE
Documentary evidence
a.12. The following documents were in evidence before the Commission and considered in making this determination:
b. (a) the ARD and attached documents;
c. (b) Reply and attached documents;
d. (c) wages schedule filed by the applicant on 5 April 2022;
e. (d) schedule of future medical treatment filed by the applicant on 7 April 2022;
a. (e) amended wages schedule filed by the applicant on 13 April 2022;
b. (f) Application to Admit Late Documents filed by the respondent on 25 May 2022;
c. (g) Application to Admit Late Documents filed by the applicant on 27 May 2022; and
d. (h) Application to Admit Late Documents filed by the applicant on 30 May 2022.
Oral Evidence
a.13. There was no application to adduce oral evidence or cross examine the applicant or any other witnesses who have provided evidence in this dispute.
The applicant’s evidence
a.14. The applicant has provided statements dated 2 February 2021, 4 November 2021, and 26 May 2022.
b.15. The applicant states that he commenced employment with the respondent as an ITAS Tutor in 2008, and that this was on a casual basis. He states that he was paid an hourly rate and that his hours of work would vary.
c.16. The applicant states that since 2013 he has also had short term contracts for tutoring with other universities including the University of New England and Sydney University.
d.17. The applicant states that he was diagnosed with myalgic encephalomyeltits/chronic fatigue syndrome with fibromyalgia (ME/CFS with FM) in April 1998. He states that these conditions were sustained while in the course of his employment with National Mutual Life Association of Australia Ltd and a finding was made by the Workers Compensation Commission in 2005 that he did suffer from these conditions and that his employment with National Mutual Life Association of Australia Ltd was a substantial contributing factor to the injury of ME/CFS with FM.
e.18. The applicant has previously received lump sum payments of compensation pursuant to section 66 of the 1987 Act as a result of the injury he sustained with National Mutual Life Association of Australia Ltd including a cumulative total of 10% permanent impairment of the back and 10% permanent impairment of the neck.
f.19. The applicant states that the respondent was aware of the applicant having ME/CFS with FM when he commenced employment in 2008.
g.20. The applicant states that he was involved in a motor accident in July 2015 wherein he sustained concussion, back pain and neck pain.
h.21. The applicant states that he engaged in sporadic baseball umpiring in the two or three years before the injury with the respondent, but he has not done any umpiring since February 2020.
22. The applicant states that on 27 March 2020 all staff were sent home and were to work from home due to the covid pandemic. The applicant states that prior to this directive he worked either on campus or attended a particular student’s residence, which allowed him to walk around and take the static load off his back.
j.23. The applicant states that he had to use a low back chair that was about seven years old when he was working all the time at home. He states that he had to stack pillows in order to allow some support for his neck, and he had an ottoman under the desk to raise his legs due to orthostatic intolerance and pooling of blood in his legs and ankles due to ME/CFS.
k.24. The applicant states that he had to tilt forward to see the screen which aggravated his neck and caused him migraines. The applicant has provided photos of how he set up his work station in an office at his home to undertake his duties for the respondent.
l.25. The applicant states that from April 2020 he began to get an increase of pain in his lower back. He concedes that he did have some ongoing back pain due to the motor accident in 2015. He states he then began to get neck pain as he attempted to adapt to his back pain. He also states that his sleep became disjointed and there were times when he fell asleep in his chair due to exhaustion.
m.26. The applicant states that he communicated with officers of the respondent regarding the need for a suitable chair, but the respondent was not prepared to come to his home to assess his needs. He states that an offer was made to find a place for him on campus, but he advised that he could not do that because he was immunocompromised.
n.27. The applicant states that on 19 June 2020 he made a report of injury to the respondent as follows:
“I have spent many hours in the home office, and the chairs that I have. My insurer paid for an ergonomic chair in 2016 that is not suited to my needs. It was arranged by them, without me being able to test the chair. The chair causes back pain. The chair causes back pain. It has not arms - it is a $ 1,600 white elephant. I have another office chair that also provides support - more so than the other chair. I have made it more comfortable with pillows. Despite my efforts I am getting muscle spasms in my back, neck and shoulders. It is causing significant pain. It has wiped me out at times. I am getting migraines and headaches.”
a.28. The applicant states that sometime in June 2020 the chair he was using broke, which made the chair more unstable to sit on.
b.29. The applicant states that on 1 July 2020 he had a telehealth appointment with Dr Bird in Melbourne, and Dr Bird issued a certificate noting that the applicant’s prior back injury and ME/CFS condition were being exacerbated by the chair.
c.30. The applicant states that he was provided with a new chair in September 2020, but he deteriorated significantly despite this.
d.31. The applicant states in September 2020 his ability to work declined from 20 hours per week to about two to four hours of work per week. In his statement dated 2 February 2021, the applicant states that every time he gets into his chair he gets severe pain in various areas of his spine and periodic headaches. He states that he is now doing most of his work from the lounge because there is less aggravation of his back, but it causes pain in the neck and upper back.
e.32. In his statement dated 4 November 2021, which is a few days after weekly payments cease to be paid to the applicant, the applicant states that he has tightness, reduced range of movement, knotting, spasms and varying levels of pain. The applicant states that he has chronic swelling in the hands, legs and ankles, and that he has issues with his eyes due to aggravation.
f.33. In his most recent statement dated 26 May 2022, the applicant states that he still has severe pain in his lower back and sacrum, and that this pain has never resolved since it was aggravated. He states he still does not have range of movement in his arms, legs and spine, and that he still has chronic swelling in his hands, legs and ankles. The applicant states that his orthostatic intolerance is still exacerbated, and that he still has an aggravation of symptoms associated with ME/CFS.
g.34. The applicant states that he “deteriorated across the board” since October 2021 when the insurer took away the physiotherapy and an exercise physiologist.
FINDINGS AND REASONS
a.35. A summary of the relevant medical evidence will be provided as it pertains to the different issues in this dispute which require determination.
The nature of the injury sustained by the applicant
a.36. There were issues raised by Mr Grant for the respondent in regard to the nature of the injury sustained by the applicant and how such an injury is to be applied to certain provisions of the 1987 Act.
b.37. Mr Grant submits that the date of injury pleaded by the applicant for a disease injury is 18 May 2020, and the respondent is meeting a claim for an injury being caused by work being undertaken by the applicant between from 27 March 2020 to 18 May 2020.
c.38. Mr Grant submits that the evidence reveals that the applicant worked after 18 May 2020 for both the respondent and two other universities, but the pleading of the date of injury of 18 May 2020 means that there is no claim being made by the applicant which implicates the work which the applicant did after that date, whether that be with the respondent or the two other universities.
d.39. The date of injury of 18 May 2020 in the ARD appears to derive from the date of injury nominated by the applicant in his claim form. In his statement dated 4 November 2021, the applicant states that on18 May 2020 he “sought assistance with a chair”. The applicant sent an email to Terry Kosack, Disability Advisor for the respondent, on 18 May 2020 stating: “Can SCU assist me with a home office chair? Because I’m suffering pain presently”.
e.40. However, the respondent ought to be aware of the claim made by the applicant that his various conditions deteriorated over a period up until September 2020 when he was undertaking work for the respondent because that was set out in the statement the applicant provided to an investigator retained by the respondent in February 2021.
f.41. Furthermore, the insurer of the respondent was receiving reports from the applicant’s treating doctor, Dr Bird, which recorded that the applicant was still experiencing symptoms as the applicant continued to use the same chair in the office at his home. In his first report dated 30 July 2020, Dr Bird writes: “The aggravation is still ongoing because he is still having to work without a suitable set up at home”.
g.42. In a later report dated 31 October 2021 which is addressed to EML, Dr Bird writes:
“Mr. Hallmann continued working with the inappropriate chair and workstation from July 2020 until the change in chair on 15 September 2020 and with the new (and differently inappropriate) chair since that time.
The spinal aggravation was not across a couple of days, nor over a couple of weeks. It was sustained for months on and continues in a lessor form. If the issue was several days, the spinal aggravation would probably have resolved. The issue became chronic enough after a month or so for Mr. Hallmann to reach out for help on 18 May 2020.”
a.43. In Trustees of the Roman Catholic for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 (Barnes), DP Roche said at [54]:
“…Cases are determined on the evidence and arguments presented (Banque Commerciale SA (in liq) v Akhil Holdings Ltd[1990] HCA 11; 169 CLR 279 at 296–297), not on the pleadings or particulars, which are only a ‘means to an end’ (Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd[1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd[2012] NSWCA 138 at [14] and [15])).”
a.44. The applicant’s evidence and that of Dr Bird is that the condition of the applicant’s neck and back, as well as symptoms of ME/CFS, worsened over a period of time from 27 March 2020 until at least mid-September 2020 while the applicant was undertaking his duties for the respondent. That evidence is likely to mean a different deemed date of injury nominated by the applicant, but the ‘pleading’ of an injury on 18 May 2020 does not mean that his claim fails, especially when the respondent has been aware of the evidence being relied upon by the applicant to ground his claim.
b.45. Mr Grant also submits that if the applicant is claiming that he sustained injury after 18 May 2020, then that implicates the two other universities as being employers who might be liable for the injury claimed by the applicant. Mr Grant referred to the section 16 of the 1987 Act which provides that where an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease, then compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor in the aggravation, acceleration, exacerbation or deterioration of that disease.
c.46. The response from Mr Hallmann is that the respondent was his primary employer and that he asked the insurer of the respondent about the two other employers and was told that it was not necessary to include them in his claim.
d.47. That response from Mr Hallmann does not answer the requirements of section 16 of the 1987 Act. However, a review of the available evidence supports a finding that the applicant was last employed by the respondent in employment which was a substantial contributing factor to the aggravation of his diseases.
e.48. The Schedule of Earnings filed by the applicant, which includes pay advices from the respondent and the two other universities, reveals that but for seven weeks between 18 May 2020 and 10 September 2020, the applicant earned income from the respondent. There are some smaller amounts earned by the applicant for three weeks in October 2020, and $376 for each of two weeks in January 2021, but regular earnings from the respondent cease by 10 September 2020. That is consistent with the applicant’s evidence that in September 2020 his ability to work declined from 20 hours per week to about two to four hours of work per week.
f.49. Mr Hallmann made a submission that payments were only made to him after a student had submitted the appropriate paperwork, which then had to be forwarded on to the respondent. That might mean that the dates of payments made by the respondent do not accurately correspond with the actual work done by the applicant in a given week. However, doing the best I can on the evidence that has been available, I conclude that the applicant was continuing to work for the respondent, which included having to work in an unsuitable chair at home, until mid-September 2020.
g.50. The Schedule of Earnings reveals that the applicant did receive regular income from University of New England up until mid-September 2020, and some lesser income and for fewer weeks from Sydney University during 2020. However, there is no evidence which suggests that the work that the applicant did for either or both of those universities has contributed to the aggravation of the applicant’s conditions.
h.51. The applicant was not cross-examined on this particular issue. The investigator retained on behalf of the respondent who took the statement dated 2 February 2021 did not explore this issue with the applicant. Neither Dr Keller nor Dr Gorman engaged in a consideration of this issue, and their reports do not reveal that they interrogated the applicant on this issue.
52. Furthermore, section 16 of the 1987 Act does not refer to employers who last employed the worker but ‘the employer who last employed the worker’. Section 16 (2) provides for contributions to be made by other employers in the 12 months preceding a worker’s incapacity, but sub-section (1) provides for compensation to be paid by the last employer who substantially contributed to the aggravation of the disease. No application was made by the respondent to join either or both of the other universities to these proceedings so that the respondent might seek contribution for any compensation to be paid to the applicant.
j.53. In the absence of any evidence which indicates that either Sydney University or University of New England substantially contributed to the aggravation of the applicant’s diseases, there is no basis for the query made by the respondent as to who should be the employer responsible for the payment of compensation to the applicant.
a.54. Mr Grant also raised an issue as to whether there has been any specific diagnosis of the injury which the applicant claims to have sustained in the course of his employment with the respondent. That will be addressed as part of a review of the medical evidence and a determination of whether the effects of the injury claimed by the applicant have now ceased.
Whether the effects of the injury sustained by the applicant have ceased
a.55. The respondent initially accepted the applicant’s claim for workers compensation benefits, but those benefits then ceased when it was decided in October 2021 that any exacerbation of pre-existing ME/CFS had ceased. The applicant claims that since October 2021 he still suffers the effects of several debilitating conditions that have resulted from his work injury.
b.56. There are seven reports in the ARD from the applicant’s treating doctor, Dr Bird, which date from 30 July 2020 to 14 November 2021. Dr Bird practices in Hawthorn, Victoria, and states that he has qualifications and extensive experience in nutritional medicine. He states that he has worked with patients with ME/CFS.
c.57. Dr Bird states that the applicant has been under his care since 2003 and that he has followed the applicant’s progression. He provides an extensive history of the applicant’s past medical problems and treatment in a report dated 31 October 2021.
d.58. In his first report dated 30 July 2020, Dr Bird records that in previous years the applicant’s work with students was primarily face to face, which allowed the applicant to move around when working. Dr Bird writes that the distinction between the past years of work and what occurred during 2020 was that there was an increase in overall hours of work and the applicant had to work completely out of his office at home.
e.59. Dr Bird makes the following diagnosis of a workplace injury:
“Aggravation of back/cervical spine/neck injury leading to exacerbation of ME/CFS with persisting Fibromyalgia (FM) Note – the back was triggered before the ME/CFS with FM and then caused the triggering of the ME/CFS symptoms of pain, fatigue, migraines, headaches, etc.
Weight gain as a result of injury (about 8kgs in a month) resulting from reduced activity caused by injury.”
a.60. When asked for an opinion on the cause of the applicant’s injury, Dr Bird opines that “the circumstances of the employment self-evidently caused the injury”.
b.61. The report from Dr Bird dated 31 October 2021 is a comprehensive report which sets out the applicant’s past medical history and details of the work which the applicant was undertaking during the course of 2020. The medical history includes the applicant suffering injury to his lumbar, thoracic and cervical spine in a motor accident in July 2015. Dr Bird writes that he was asymptomatic prior to being directed to work from home by the respondent in March 2020.
c.62. Dr Bird refers to “multifaceted” reasons for the onset of pain throughout the applicant’s spine, including an inappropriate, damaged and unstable chair, an inappropriate desk, repeated movements when reaching and moving and leaning forward to read books and view screens, and inappropriate leg support. He opines that as a consequence there has been repeated occasions of placing loads on the neck and upper back, in addition to lower spine aggravation, with other periods of very limited movement which would have aggravated the ME/CFS with FM.
d.63. Dr Bird concludes:
“The current diagnosis, subsequent conditions and consequential conditions are consistent with the aggravation of the underlying pre-existing (previously asymptomatic) spinal injury and ME/CFS with FM.
But for the aggravation, the spinal injury was asymptomatic. But for the aggravation of the spinal injury, the deterioration of sleep would not have occurred and the aggravation of the ME/CFS would not have occurred. But for the aggravation of the spinal injury, the headaches and migraines would not have been as frequent and severe. But for the spinal injury and aggravation of the ME/CFS, his self-managed exercise program would not have ceased and his weight would not have increased as rapidly as it did (and it was going down as evidenced by the drop from February to April 2020). But for the sleep issues, his weight would not have increased rapidly. But for all these issues, the diabetes would not have occurred because glucose had been in control and stable for many years below a diabetic level (if it would have occurred, it would not have been accelerated as it was by the work-related injuries).
The current symptoms are solely due to the work-related events that have transpired from 27 March 2020 until present and remains ongoing.”
a.64. Dr Cleaver, orthopaedic surgeon, provided a report to Dr Bird dated 3 March 2021. Dr Cleaver writes that he has known the applicant for many years. He records that the applicant sustained a whiplash injury in a motor accident in 2015 and that for 18 months that injury predominantly affected his neck.
b.65. Dr Cleaver records that for three or four years the applicant “was pretty good”, but that the applicant developed pain in three spinal regions due to the posture he had to adopt while working from home due to covid restrictions.
c.66. Dr Cleaver found the applicant to be neurologically normal and the applicant’s spine to be well balanced. His diagnosis is a muscular postural response to an abnormal situation, but that this condition should settle down with physical therapies.
d.67. Dr Keller, occupational physician, has provided a report at the request of the respondent dated 14 December 2020. The examination for that report was conducted by Dr Keller by Zoom.
e.68. Dr Keller records the applicant having an onset of neck and lower back pain in early April 2020 which the applicant attributes to sitting in a chair at home which was initially adjustable until it broke. He records that the applicant did not have a special adjustable chair at the university, but he was mobile while undertaking his work duties by standing and walking to assist his students. Dr Keller records that the applicant was seated for all of his work at home, which came about because of covid, and the applicant gained no improvement in his pain by leaning back in the chair and stacking pillows for support.
f.69. Dr Keller records that the applicant reports an increase of 14 kg in weight since March 2020.
g.70. Dr Keller concludes: “It is not clear to me that working from home due to Covid-19 restrictions from classroom access have caused him any medical complaint”. He states that the applicant has significant medical restrictions with regard to work capacity, but that it is not clear to him as to how working from home has increased these restrictions.
h.71. Dr Keller states that he cannot see how some of the applicant’s work duties being undertaken at home could not have been done using a computer on a bench with the applicant in a standing position. He writes that it is plausible that being more sedentary while working from home has aggravated the applicant’s symptoms but cannot see why the applicant could not manage these symptoms through breaks and activity on a self managed basis.
72. In a further report dated 30 December 2020, Dr Keller writes that he has insufficient evidence to support the applicant’s claim that the applicant’s employment is the main contributing factor to his reported symptoms and need for treatment. Dr Keller also opines that it is not the work duties which the applicant claims to be the cause of the aggravation of various conditions but instead it is the applicant’s home environment.
j.73. Dr Gorman, consultant physician in general medicine, medical oncology and pain medicine specialist, has provided reports at the request of the respondent dated 6 September 2021 and 19 October 2021. The reports were based upon a telehealth assessment conducted by Dr Gorman on 12 August 2021.
k.74. In his report dated 6 September 2021, Dr Gorman records a pre-existing history of ME/CFS with FM, as well as a back injury following a motor accident in 2015. Dr Gorman records that prior to the covid pandemic the applicant was able to move around while working at the university, which was helpful for his back.
l.75. Dr Gorman records that the chair that was used by the applicant at home was not suitable and the applicant was getting an increase in back and muscle pain. He also records the applicant having trouble with sleep at night and that the applicant often sleeps during the day.
m.76. Dr Gorman records that the applicant’s weight was now 136 kg, having increased from 127 kg since February 2020.
n.77. Dr Gorman concludes that there may have initially been a brief aggravation of ME/CFS with FM during the start of the covid lockdown in early 2020, but that aggravation has now resolved. He opines that the applicant’s ongoing condition “is 100% the result of his pre-existing conditions”.
o.78. Dr Gorman considers that increased obesity and increased deconditioning while at home due to covid restrictions has contributed to the worsening of the applicant’s lumbar spinal pain. He considers that this is not due to any effect from the workplace because the applicant could easily have moved around in the same way he did at university.
p.79. Dr Gorman is asked whether the applicant’s employment has been the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of ME/CFS with FM, and any condition affecting the lumbar spine, and opines:
“No, I do not consider employment with the employer to be the main contributing factor. As mentioned, while sitting in an office chair at home may have made his symptoms somewhat worse for a short period, the main factor causing the deterioration in his overall condition is the increasing inactivity and weight gain in association with the ME/CFS and FM. This in no way was related to his employment but certainly would have been contributed to by the decreased activity which he had during the COVID period. His work did not cause him to decrease his activity as mentioned, he could have easily walked between contact with students as he did when he was on campus.”
a.80. In a further report dated 19 October 2021, Dr Gorman refers to the report of Dr Cleaver dated 3 March 2021, and writes that the conclusions made by Dr Cleaver are essentially the same as his assessment of the possible effects of the applicant’s work chair and posture at home. Dr Gorman concedes that the office chair may have worsened the applicant’s symptoms for a short period, but the main factor causing a deterioration of the applicant’s overall condition was the increasing activity and weight gain associated with ME/CFS with FM. He writes that ME/CFS with FM is a chronic condition and as with any chronic condition there will be remissions and exacerbations.
b.81. The expert evidence required by the applicant to support his claim that his employment has been the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of several medical conditions, in particular his ME/CFS with FM and spinal pain, rests very much with Dr Bird who has been the applicant’s treating doctor of many years now.
c.82. There are some concerns with the opinions expressed by Dr Bird. Firstly, Dr Bird has only seen the applicant on one occasion from the time of the onset of symptoms complained of by the applicant in early April 2020, and that was in April 2021. That is of course completely understandable given that Dr Bird practices in Victoria and that State was the subject of extensive lockdowns during 2020 and 2021. I also accept that the applicant is immunocompromised and that would have placed his health at even greater risk if he was able to make multiple trips to Victoria from the north coast of New South Wales.
d.83. Secondly, Dr Bird does not appear to have any specific qualifications in orthopaedic or neurological medicine for there to be confidence in his opinion that the applicant has suffered an aggravation of a spinal injury. Furthermore, it is not clear whether the “aggravation of the spinal injury” referred to by Dr Bird in his report dated 31 October 2021 is a reference to the aggravation of the injury sustained in the motor accident in 2015, or an aggravation of degenerative conditions affecting the spine by reference to radiological findings which are referred to by Dr Bird in that same report.
e.84. However, despite these concerns Dr Bird is in a very good position to provide an opinion on the cause and ongoing effects of the injury sustained by the applicant in the course of his employment with the respondent. Dr Bird has had the benefit of many years of treating the applicant and has an intimate knowledge of the applicant’s various conditions, especially those symptoms which emanate from the applicant’s ME/CFS.
f.85. Dr Bird states in his report dated 31 October 2021 that the last time he saw the applicant prior to the onset of symptoms in 2020 was in December 2019. Although I have noted that Dr Bird has only seen the applicant on one occasion since the onset of these most recent symptoms, being in April 2021, Dr Bird states that he has discussed the applicant’s work situation and injury at length on a monthly basis since July 2020.
g.86. I therefore have a preference for the opinions which are provided by a doctor who is able to compare the applicant’s complaints which have developed since March 2020 to his medical condition over the previous 17 years.
h.87. Furthermore, the extent to which Dr Bird’s opinion on the spinal problems complained of by the applicant might be discounted by any lack of expertise in that speciality, it is overcome by the opinion of Dr Cleaver. Dr Cleaver opines that the applicant has had a muscular postural response to an abnormal situation, and that this was due to the posture the applicant had to adopt while working from home due to covid restrictions.
88. Although Mr Hallmann submits that his one consultation with Dr Cleaver lasted seven minutes, the report from Dr Cleaver indicates that he has a good understanding of how the applicant developed spinal pain, and he provides an opinion which is consistent with the opinion of Dr Bird. The opinion of Dr Cleaver also meets the criticism made by Dr Grant that there is no specific diagnosis of the injury which the applicant claims to have sustained.
j.89. While Dr Bird in his first report dated 30 July 2020 appears to almost ridicule the respondent’s enquiry as to the cause of the applicant’s conditions by answering “the circumstances of the employment self-evidently caused the injury”, Dr Bird does provide a compelling opinion on causation in his report dated 31 October 2021. That opinion, which has been quoted in paragraph 62 of this decision, does identify the unbroken chain of events from the applicant being required to work from home in an unsuitable chair to the onset of significant pain throughout his spine, and then to the aggravation of ME/CFS symptoms such as swelling of the lower limbs, because of decreased activity and weight gain due to his spinal pain.
a.90. It appears to me that Dr Bird, aided by his long history of treating the applicant, has a good understanding of the connection between the difficulties the applicant had in working from home at an unsuitable work station and the onset of significant spinal pain which then led to further complications, particularly due to the applicant’s pre-existing ME/CFS condition.
b.91. There is a fundamental difference in the understanding of both Dr Keller and Dr Gorman as to the chain of events which has caused the applicant’s problems once he had started to work from home, and that which is set out in the reports of Dr Bird. Dr Gorman concedes that sitting in the unsuitable chair might have worsened the applicant’s symptoms for a short period of time. Dr Keller opines that it is plausible that being more sedentary while working from home has aggravated the applicant’s symptoms.
c.92. However, both Dr Keller and Dr Gorman presume that the applicant could have and should have varied his posture on regular occasions during the time he was undertaking work for the respondent while he was at home, and that the failure to do so has led to the applicant putting on weight, which in turn has had a detrimental effect upon his health, including an incapacity for work.
d.93. Although both Dr Keller and Dr Gorman record that the applicant was able to move around while attending to his students when working at the university, neither doctor appears to acknowledge that the applicant was not able to do this while working from home. The applicant’s communication with his students and work associated with this had to be done from a work station in his home, and the evidence from both the applicant and Dr Bird is that this work station was not suitable as it was placing strain upon various parts of the applicant’s spine and causing the applicant to experience pain.
e.94. Dr Bird writes in his report dated 31 October 2021: “Mr Hallmann’s injury did not occur simply because he sat in a chair. That would be a gross over simplification”. He sets out several facets of the work station at the applicant’s home, in addition to the chair being used by the applicant, which were unsuitable. That includes the use of an ottoman to elevate the applicant’s legs (although that would seem not to be sufficient to stop swelling of the ankles) and the applicant using pillows to support himself in his chair. He is provided with photos to assist him in that understanding and those photos are included in his report dated 31 October 2021.
f.95. I accept the opinion of Dr Bird on the cause and ongoing effects of the applicant’s injury because he appears to have a much better understanding of the work being undertaken by the applicant at his home.
g.96. I also accept the opinion of Dr Bird that the lack of activity and increase in weight due to the spinal pain being experienced by the applicant then resulted in an aggravation of the applicant’s pre-existing ME/CFS. I accept this opinion and prefer this opinion over that provided by Drs Keller and Gorman. Dr Bird is able to compare how the applicant was coping with his ME/CFS over the past 17 years with an increase in symptoms from July 2020 onwards.
h.97. In his report dated 9 September 2021, Dr Bird acknowledges that the applicant has had postural orthostatic intolerance since 1998, which can cause swelling in the ankles, and that this is a co-morbid condition to ME/CFS. Dr Bird writes that from his ongoing review of the applicant over the years the applicant has had infrequent pooling of blood in the ankles and hands, but that since April/May 2020 it has become a constant issue. The aggravation of the applicant’s symptoms of ME/CFS coincide with his decreased activity due to spinal pain.
98. Although Dr Bird has only seen the applicant on the one occasion since April 2020, he was provided with photos of significant swelling of the feet and ankles in September 2020, and those photos are included in the report of Dr Bird dated 13 October 2020. In his report dated 31 October 2021, Dr Bird writes that the applicant continues to have swelling in the ankles, which is not due to weight gain but is reflective of microcirculatory issues from ME/CFS and poor cardiac return.
j.99. In contrast to those findings made by Dr Bird, it does not appear that either Dr Keller or Dr Gorman undertook any detailed examination of the applicant in regard to the aggravating symptoms of ME/CFS complained of by the applicant. I appreciate that both examinations were conducted by video link because of the covid pandemic and the applicant being immunocompromised, so that there can be limitations on the doctors’ ability to examine the patient. However, the findings made by both doctors from their respective examinations do not appear to address the symptoms of ME/CFS which the applicant claims, and which Dr Bird opines, have been aggravated by the applicant’s unsuitable work conditions at home.
k.100. Dr Keller writes that no clinical assessment was possible because it was a zoom conference. However, Dr Keller also does not record any details of symptoms associated with an aggravation of ME/CFS, such as swelling of the lower limbs, despite Dr Bird having written two reports to the insurer of the respondent which referred to such symptoms by the time Dr Keller had his consultation with the applicant on 9 December 2020.
l.101. I do note that Dr Keller records that the consultation was terminated by the applicant abruptly leaving the zoom meeting. However, notwithstanding what appears to have been a difficult consultation, Dr Keller does not engage in a consideration of whether the work being undertaken by the applicant has caused an aggravation of the applicant’s ME/CFS condition. He writes that it is plausible that being more sedentary while working from home “has aggravated his symptoms” but does not set out what condition or conditions are being aggravated.
m.102. The extent of the examination that is recorded by Dr Gorman is that the applicant was sleepy during the interview, was morbidly obese, and could only demonstrate a very limited range of lumbosacral movements. There is no record made of any swelling of the limbs. There is no record made of any examination of the applicant’s gait, despite another of the applicant’s complaints is a lack of balance.
n.103. Dr Gorman acknowledges the applicant’s complaints that decreased activity has led to an aggravation of ME/CFS symptoms, but opines that such aggravation is just part of the chronic nature of ME/CFS, which will have remissions and exacerbations.
o.104. The applicant relies upon section 4 (b)(ii) of the 1987 Act, which provides that an injury includes a disease injury where employment is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. In AV v AW [2020] NSWWCCPD 9 (AV v AW), DP Snell said at [76-77]:
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.”
a.105. In my view, Dr Gorman does not properly engage in an evaluative process which considers both work and non-work related factors when forming his opinion as to whether the applicant’s employment is the main contributing factor to the aggravation of the applicant’s ME/CFS condition. Dr Gorman opines that the deterioration in the applicant’s overall condition is due to increasing inactivity and weight gain in association with the ME/CFS and FM.
b.106. However, Dr Gorman does not consider whether that increased inactivity and weight gain has its source in the spinal pain being experienced by the applicant due to his poor working conditions at home, despite the onset of symptoms associated with ME/CFS coinciding with spinal pain being experienced by the applicant.
c.107. I accept that the applicant experienced spinal pain due to the unsuitable work conditions at his home which commenced in March 2020. This is supported in the opinions of Dr Bird and Dr Cleaver. I accept that this spinal pain caused the applicant to decrease his activity and gain weight, which in turn led to symptoms associated with ME/CFS, such as swelling of the lower limbs and problems with balance. That is supported by the opinion of Dr Bird, who has had the benefit of many years of treating the applicant.
d.108. I accept that those opinions form the basis of Dr Bird’s conclusion which reaches on page 30 of his report dated 31 October 2021 that the applicant’s employment with the respondent is the main contributing factor to the aggravation of a spinal condition and ME/CFS.
e.109. In his report dated 31 October 2021, Dr Bird continues to record the applicant having pain throughout his spine, swelling of the lower limbs, and difficulties with sleep which then leads to fatigue.
f.110. The medical evidence which I have preferred supports a finding that the effects of the injury sustained by the applicant are continuing, and therefore the respondent remains liable for weekly payments of compensation and the payment of reasonably necessary medical treatment.
The claim for weekly payments of compensation
a.111. The applicant has been paid weekly payments from 1 July 2020 to 30 November 2021. The ARD claims weekly payments from 1 December 2021 onwards.
b.112. During his submissions in reply, Mr Hallmann claimed that he should be paid weekly payments of compensation from 18 May 2020. The commencement of the payment of weekly payments appears to be based on the first Certificate of Capacity from Dr Bird issued on 1 July 2020.
a.113. There is no medical evidence which sets out the extent of any incapacity for work during the period from 18 May 2020 to 30 June 2020 and therefore no award of weekly compensation can be made for this period. I also note from the Schedule of Earnings filed by the applicant that he earned in excess of the maximum weekly compensation amount for three of the seven weeks in that period, which allows for an inference to be drawn that he was able to earn at least the maximum weekly compensation amount pursuant to section 34 of the 1987 Act.
b.114. The Schedule of Earnings filed by the applicant records that he only had some small amounts of earnings from October 2020 to the beginning of April 2021. The applicant had no earnings from the respondent between April 2021 and December 2021, except for an amount of $1,307.35 received for the fortnight of 2 July 2021 to 15 July 2021.
c.115. The applicant received earnings from Sydney University and University of New England between April 2021 and December 2021 which ranged from $108 per week (for the weeks from 10 September to 23 September 2021) to $989 per week (for the week from 9 April to 15 April 2021). There were nine weeks during this period when the applicant received no earnings at all.
d.116. The Schedule of Earnings record that the applicant has had no earnings from 10 December 2021 to 8 April 2022.
e.117. During most of 2021 Dr Bird issued Certificates of Capacity which certified the applicant as being fit “for 0-5 hours/day for 3-5 days/week”. Dr Bird then issued a Certificate of Capacity on 10 November 2021 certifying the applicant fit for “0-3 hours/day for 1-3 days/week” for the period from 11 October 2021 to 9 December 2021.
f.118. On 15 December 2021 Dr Bird issued a Certificate of Capacity certifying the applicant as having no current work capacity from 11 November 2021 to 15 March 2022. In that part of the Certificate marked: “If no current capacity, estimated time to return to any type of employment”, Dr Bird writes: “He has deteriorated. He requires time to improve”.
g.119. In his report dated 31 October 2021 Dr Bird writes:
“Mr. Hallmann was fit for duties in accordance with the ebb and flow of his ME/CFS and FM in its current form, and the aggravated spine and the other issues. I had certified him fit for 0 – 15 hours per week on this basis. Currently, with the removal of treatment, he has been unable to work. I will review my position in my next certificate. Currently he is not fit for duties.”
a.120. Dr Gorman doubts that the applicant has capacity to fully resume work as a university tutor unless his sleep hygiene improves. He considers that the applicant could return to partial duties where the applicant can work in the afternoon or at other times of the day when he is alert. However, Dr Gorman also opines that even that partial incapacity for work is not due to any workplace injury.
b.121. The applicant’s entitlement to weekly payments from 1 December 2021 comes within section 37 of the 1987 Act, which provides:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
a.(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
b.(b) the maximum weekly compensation amount, less the worker's current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
a.(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.”
a.122. The Certificate of Capacity issued by Dr Bird on 15 December 2021, which changes the applicant from having some work capacity to no current work capacity, refers to the applicant having deteriorated. However, there are no other details provided in that certificate as to the reason for a deterioration in the applicant’s condition.
b.123. Dr Bird had stated in his report some six weeks earlier that the applicant was not fit for any duties, but that is not consistent with details provided by the applicant in his Schedule of Earnings which record him working 11 hours during three separate fortnightly periods from 5 November 2021 to 10 December 2021.
c.124. Dr Bird refers to the removal of treatment as being the reason the applicant is unable to work, but he does not provide any further details as to what specific treatment the applicant now requires which causes him to have no capacity for work when he had at least some capacity for work during most of 2021.
d.125. The applicant states that he has “deteriorated across the board” since October 2021 when the insurer took away the physiotherapy and an exercise physiologist, but as has already been noted, the applicant kept on working at Sydney University for 11 hours per fortnight until 10 December 2021.
e.126. Furthermore, in his submissions in reply, Mr Hallmann stated that he ceased work in December, but then said: “I am doing sporadic work at the moment”.
f.127. The applicant has shown a capacity for work throughout the last nine months of 2021, including six weeks during November and the early part of December, despite Dr Bird considering that the applicant had no work capacity. The applicant also conceded that he is currently doing “sporadic work”. I therefore do not accept that the applicant has had no current work capacity since 1 December 2021. I find that the applicant has retained some partial capacity for work since 1 December 2021.
g.128. The question then becomes the extent of the applicant’s partial incapacity for work and the calculation of the rate of weekly payments of compensation to be awarded to the applicant.
h.129. In a letter dated 30 October 2020, icare calculated the applicant’s pre-injury average weekly earnings (PIAWE) at $3,029.05. Eighty per cent of PIAWE is $2,423.25, which is still greater than the maximum weekly compensation amount provided by section 34 of the 1987 Act.
130. Clause 8 of Schedule 3 of the 1987 Act sets out the meaning of “current weekly earnings” to be:
“‘Current weekly earnings’, of an injured worker in relation to a week, means whichever of the following is the greater amount--
(a) the worker's actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.
a.131. The applicant’s actual gross earnings fluctuated throughout the last nine months of 2021, but the definition of ‘current weekly earnings’ requires a determination of the greater amount between the applicant’s actual gross weekly earnings and what he is able to earn in suitable employment.
b.132. It is arguable that the applicant has an ability to earn $989 per week because that is what he was able to earn in the week from 16 April to 22 April 2021 when he undertook work for both Sydney University and University of New England. There was also another six weeks during 2021 when the applicant earned around $700 per week.
c.133. The variations in earnings each week may be due to the amount of contract work made available to the applicant by those two universities. However, the definition of ‘suitable employment’ in section 32A of the 1987 Act requires a determination of the work a worker is currently suited for regardless of whether the work is available and whether the work is generally available in the employment market.
d.134. Although the applicant was able to earn around $700 per week for six weeks during 2021, I consider a more realistic assessment of his work capacity should be based upon his earnings around the time that liability was disputed by the respondent. That is an amount of $340 per week, being his earnings with Sydney University from 5 November 2021 to 10 December 2021.
e.135. The amount of $340 per week is more than what the applicant earned for another 17 weeks during 2021, but it is less than fir another 10 weeks for that year. I consider that $340 per week, which represents about 5.5 hours of work per week, comes within the restrictions set out by Dr Bird in the Certificates of Capacity which were issued prior to the Certificate of Capacity of 15 December 2021 which certified the applicant as having no current work capacity.
f.136. The maximum weekly compensation amount which applies up until 31 March 2022 was $2,195.70. It is now $2,224.
g.137. The calculation of the award of weekly payments of compensation in favour of the applicant pursuant to section 37 (3) of the 1987 Act is as follows:
b. (a) from 1 December 2021 to 31 March 2022: $2,195.70 less $340 = $1,855.70 per week; and
c. (b) from 1 April 2022 to date and continuing: $2,224 less $340 = $1,884 per week.
The claim for future medical expenses
a.138. The applicant seeks an order pursuant to section 60 (5) of the 1987 Act that the respondent pay for the cost of various medical or related treatment recommended by Dr Bird. Several of those requests for treatment were disputed by icare in a dispute notice dated 20 July 2021.
King size orthopaedic mattress
a.139. The applicant states that he experiences pain in his lower back and legs throughout the night, which causes his sleep to be disturbed, and which in turn causes sleepiness during the day.
b.140. Icare has disputed the claim for a king size orthopaedic mattress on the grounds that an Activities of Daily Living assessment conducted in 2010 by James Pratt, occupational therapist, recommended a king size mattress to be met by the insurer responsible for the applicant’s previous claim against National Mutual Life Association of Australia Ltd, and that the insurer for that claim is responsible for any future replacement of such mattress.
c.141. The report from Mr Pratt (which is attached to the Reply) identified the need for a king size mattress as being due to the applicant having muscle spasms and involuntary movements during the night due to the effects of ME/CFS, which caused the applicant’s partner to be involuntarily struck during her sleep. The recommendation for the king size mattress was to allow the applicant and his partner as much room as possible while allowing them to stay in the same bed.
d.142. Dr Bird makes reference to this in his report dated 9 September 2021 and writes:
“His mattress was specific to the needs of the ME/CFS with FM. It is now past its use by date and is sagging. The mattress was not chosen for an aggravated spinal injury. My previous reports detailed that Mr. Hallmann experiences pain from the back during his sleep.
The mattress recommendation is to suit the now aggravated/exacerbated ME/CFS and FM AND the aggravated/exacerbated spinal injury to alleviate and prevent pain associated with that aggravation/exacerbation. It can assist to improve some aspects of his sleep (not all).
There circumstances leading to the 2011 mattress recommendation are NOT the same as exist as now, and the need and type of mattress is different because of the new injury.”
a.143. In his report dated 14 November 2021, Dr Bird states that the applicant has now provided him with a quote since the applicant “has had an opportunity to review mattresses to ascertain what suits the ME/CFS and the pain and issues arising from the aggravation of the 2015 spinal injuries”.
b.144. Dr Gorman noted that the applicant was sleepy during the consultation conducted at 3.00pm on 12 August 2021. That observation caused Dr Gorman to doubt whether the applicant could return to full time employment and could only work during times of the day when the applicant was alert.
c.145. However, Dr Gorman opines that the need for a king size mattress is the responsibility of the applicant being covered by his previous workers compensation award and that it is not necessary as a result to the applicant’s most recent injury.
d.146. I have accepted that the applicant has sustained an injury to his spine, including his lower back, in the course of his employment with the respondent, and that he continues to suffer aching and pain from that injury. I accept that the use of a mattress, which assists in the applicant having a comfortable night’s sleep given the ongoing spinal pain which he is experiencing, meets one of the fundamental criteria referred to by Burke CCJ Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose) at [48A-C] that:
“Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.”
a.147. The need for a new mattress meets the definition of a ‘curative apparatus’ in sub-clause of section 59 of the 1987 Act because it is part of what was set out by Hutley JA in Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 (Thomas) when his Honour said [at 220] that an apparatus may be curative if it assists in the “continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of lack of something to do”.
b.148. The need for a new mattress also meets the definition of ‘modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity’ in sub-clause (g) of section 59 of the 1987 Act because Dr Gorman considers the applicant’s capacity to work is affected by his lack of sleep.
c.149. The mattress which the applicant asks the respondent to purchase on his behalf appears to be different to that recommended by Deb Smith, occupational therapist, in her report dated 5 April 2021. Ms Smith recommends a Seally Vienna Plush King mattress.
a.150. Dr Bird writes that “no health care professional can determine the precise mattress that suits Mr Hallmann”. However, the provision of medical or related treatment set out in section 59 of the 1987 Act is contingent upon such treatment being directed by a medical practitioner. It is not for a worker to pick what he or she would prefer.
b.151. There will be an order that the respondent is to pay the cost of the purchase and delivery of a Seally Vienna Plush King mattress as recommended by Ms Smith.
An office chair for use in the applicant’s home
a.152. I have accepted that the unsuitable chair which the applicant was required to use to undertake work for the respondent was the cause of the spinal pain experienced by the applicant from April to September 2020. I do not accept the argument made by the respondent in its dispute notice dated 20 July 2021 that the need for a suitable new chair is related to the applicant’s previous motor accident claim.
b.153. It is reasonable that the respondent meets the cost of a suitable ergonomic chair for the applicant to use.
c.154. Although the applicant has claimed that the provision of the chair is a curative apparatus, I am of the view that the need for a suitable chair fits sub-clause (g) of section 59, being the modification of the worker’s home having regard to the worker’s incapacity. The applicant needs a suitable chair to continue to work from home and hopefully increase his work capacity.
d.155. However, there is no medical opinion which supports the use of the particular chair which the applicant has nominated in the ARD, being a black leather KAB Executive Heavy Duty Chair from ‘Furniture at Work’.
e.156. Ms Wise in her report dated 12 February 2021 recommends a suitable ergonomic chair, but she does not recommend a particular chair and considers that trials in the home office environment will be required.
f.157. Ms Smith writes in her report dated 5 April 2021 that she made a recommendation of high backed POD chair but the applicant stated that it was not appropriate for him. She writes that the applicant suggested an Ergo V2 Deluxe Elemento chair, but Ms Smith considered that chair would not provide appropriate lumbar support or neck support.
g.158. The need for a suitable chair for the applicant to undertake work at his home goes back to the initial source of the claim which became the subject of this dispute. It is therefore imperative that the applicant has a suitable chair which is recommended by an appropriate expert.
h.159. I consider that an appropriate order in regard to the claim for an office chair is that the respondent is pay for the costs of trials of a suitable office chair to be used by the applicant in his home under the supervision of a medical practitioner, and that the respondent is to pay for a suitable office chair upon the recommendation of a medical practitioner.
Sit/stand desk and accessories
a.160. Dr Bird recommends a sit/stand desk so that the applicant can move around his office, stand when typing, and alleviate the need to sit. He opines that the use of such a desk will ease pain issues from the spine and ME/CFS with FM.
b.161. Ms Wise opines that a sit/stand desk, which allows the applicant to alternate regularly and easily between sitting and standing, is reasonable.
c.162. I agree with those opinions given that I have already accepted the opinion of Dr Bird that it was the lengthy periods of sitting in an unsuitable chair, compared to previous years of employment when the applicant was able to move around when tutoring students, which was caused an onset of spinal pain.
d.163. Ms Smith states that a 1800mm x 1500mm electric height adjustable work station is recommended.
e.164. There will be an order that the respondent is to pay for the cost of the purchase, delivery and installation of a 1800mm x 1500mm electric height adjustable work station.
Curved computer monitor screen
a.165. The applicant claims that the respondent is to pay for the cost of a curved monitor screen for his office at home. The screen proposed by the applicant is a Samsung Odyssey Neo G9 49 inch Curved DQHD Gaming Monitor from Harvey Norman at a cost of $3,408.
b.166. Ms Smith does not consider a curved gaming screen to be reasonable and appropriate for viewing multiple written documents as it is designed for picture viewing and gaming. She considers a more appropriate option would be twin screens.
c.167. In his report dated 9 September 2021, Dr Bird recommends a 48 inch monitor or a larger curved monitor with higher clarity of definition. In his report dated 31 October 2021, Dr Bird refers to the suggestion of two 27 inch monitors and states that he would not recommend them for the applicant. He recommends a specific curved monitor with high quality images to allow the applicant to perform his duties and view the screen from multiple angles.
d.168. I prefer the opinion of Ms Smith in regard to this particular claim being made by the applicant. Ms Smith has specific qualifications in occupational therapy and has had the benefit of attending the applicant’s home to determine his immediate needs.
e.169. Furthermore, Dr Bird does not consider the concerns raised by Ms Smith that the curved monitor is more suited to gaming and that the two monitors are better for viewing multiple written documents.
f.170. I am mindful of the particular weight which has been given to the opinion of Dr Bird in this dispute because of his many years of treatment of the applicant, but in regard to this particular claim I prefer the opinion of Ms Smith. There will be no order that the respondent is to pay for the cost of a curved computer monitor screen.
Ottoman
a.171. Dr Gorman does not specifically reject the applicant’s need for an ottoman, although he does write that the applicant has coped previously without having his feet elevated and there is no reason now for a change.
b.172. I have accepted that one of the symptoms of the aggravation of ME/CFS in the course of the applicant’s employment with the respondent has been swelling of the lower limbs. Dr Bird considers that an ottoman is necessary to keep the applicant’s legs elevated, and given the findings that I made in regard to injury and the continuing effects of that injury, I consider the need for a suitable ottoman is reasonably necessary to try and reduce the applicant’s swelling in his lower limbs.
c.173. Ms Wise noted a “low ottoman” when she attended the applicant’s home, but she did not make a recommendation for an ottoman that would be specific to the applicant’s needs.
d.174. Nonetheless, I consider the applicant should get the benefit of trying to identify an ottoman that suits his needs and the respondent meet the cost of that. There will be an order that the respondent is to pay for the cost of an ottoman.
Air relax compression system
a.175. Dr Bird states that the air relax compression system is required to manage the pain and swelling in the applicant’s legs. In his report dated 31 October 2021, Dr Bird states that the applicant has had significant benefit from the use of this device by reducing the applicant’s pain and swelling.
b.176. Dr Gorman is not critical of the device itself but opines that the applicant’s leg swelling is due to pre-existing ME/CFS rather than any recent effects of inactivity, and that if the applicant needs to use this device, then it is related to his pre-existing medical problems.
c.177. I have already provided my reasons as to why I have not accepted the opinion of Dr Gorman that the current symptoms associated with ME/CFS are not causally related to the applicant’s employment.
d.178. The applicant states in his most recent statement that he has an Air Relax pneumatic pressure system, and that it is an effective, temporary tool to bring down swelling. However, he states that it does not prevent or reduce the occurrence of swelling.
e.179. I accept from the evidence provided by the applicant and Dr Bird that an air relax compression system by Dr Bird meets the definition of a ‘curative apparatus’ set out in Thomas in that it will assist in the “continual war with disease”.
f.180. It is not clear whether the applicant has already met the cost of an air relax compression system, but the respondent should in any event meet the cost of that device as a reasonably necessary form of medical treatment.
Wearable monitoring apparatus
a.181. This device is in the form of an Apple iwatch or Garmin. Dr Bird recommends that such a device be used by the applicant to monitor “various vitals”, such as steps in the day, heart rate, blood oxygen gases and blood pressure. Dr Bird writes that this monitoring will “help him to manage the effect of the day to day activities that can push him into a crash”.
b.182. Dr Gorman opines that the applicant’s cardiac problems are not a major issue, and these wearable monitors are not standard practice even with severe cardiac disease.
c.183. I accept that the applicant’s overall health has deteriorated as a result of the aggravation of ME/CFS and that this is causally related to his employment. I consider it is reasonably necessary that there be a device which allows for the monitoring of vital signs while the applicant continues to suffer the effects of that aggravation.
IV saline solutions on a monthly basis
a.184. Dr Bird recommends that the applicant be administered with one litre of IV saline each month to assist in increasing blood volume and improve cardiac function. He states that the need for the IV saline is due to the exacerbation of postural orthostatic intolerance, which in turn is due to the aggravation of ME/CFS.
b.185. Dr Bird states that the applicant had periodic use of IV saline prior to this workplace injury, but the applicant’s postural orthostatic intolerance has moved from an intermittent issue to a chronic issue.
c.186. Dr Bird states that the use of IV saline is grounded in science and has referred to relevant medical literature. He states that he has been utilising IV saline with his patients for 20 years and the applicant has found the benefit of this treatment in the past to alleviate symptoms such as dehydration, headaches and dizziness.
d.187. Dr Gorman opines that it makes little physiological sense that intermittent IV injection would make a marked difference to the applicant’s conditions and in particular that fluid loading would improve swelling in the ankles and hands. He also opines that if IV saline has been used by the applicant in the past, then it is related to the ME/CFS which the applicant had already been diagnosed with.
e.188. I consider that once again significant weight must be given to the doctor who has had the benefit of treating the applicant over many years and who warrants that the use of IV saline has had a benefit for the applicant. This treatment which is recommended by Dr Bird meets the criteria set by Burke CCJ in Rose where “its purpose and potential effect is to alleviate the consequences of injury”.
f.189. The concern that I have is that Dr Bird does not provide any guidance as to how long the IV saline solution is to be used as a form of treatment. He does not state whether the IV saline solution will improve the postural orthostatic intolerance so that the treatment once again becomes intermittent or whether this treatment will have to be used on a regular basis in an effort to stop any further deterioration in symptoms. Perhaps that answer will only be known when the applicant commences regular treatment with the saline solution.
g.190. Most disputes involving section 60 (5) of the 1987 Act which come before the Commission are in regard to a finite form of treatment, such as surgery. I am mindful that this particular form of treatment sought by the applicant is potentially open-ended. It seems to me that there needs to be a balance between allowing the applicant a reasonable period of time to gauge the benefit of this particular treatment, but also providing certainty to the respondent as to the financial burden it will be required to meet for this treatment, at least until the potential benefits of this treatment can be measured.
h.191. In the absence of any guidance from the experts on this issue, but also in an effort to meet the balance of the interests of the parties, an order will be made that the respondent is to meet the cost of IV saline solution each month for a period of one year from the date of this determination.
Isagenix diet each week
a.192. In his report dated 13 October 2020, Dr Bird writes that in February 2020 the applicant weighed 127.4 kg, but the applicant was able to get down to 124.5 kg in early April 2020 by doing graded exercise and stretching. He writes that by 1 June 2020 the applicant was 134 kg, and by the time of that report the applicant was just over 135 kg.
b.193. Dr Bird observes in a later report dated 9 September 2021 that the applicant had a 10% gain in his weight between April and October 2020. He states in that report that the applicant had got down to just over 133 kg by using the Isagenix diet.
c.194. In his report dated 14 November 2021, Dr Bird opines that the Isagenix diet is the effective option for the applicant to try and reduce his weight. Dr Bird states that the applicant cannot engage in exercise or a gym program to try and reduce his weight because his spinal injuries are still aggravated, and such activity could cause deterioration of ME/CFS. Dr Bird concludes: “Exercise of a limited nature has benefitted Mr Hallmann, but the spinal injury is preventing his participation”.
d.195. In his most recent statement, the applicant states that he is currently 130 kg, which is still 6 kg more than his weight in April 2020.
e.196. Dr Gorman opines that the chair which the applicant was using at home would not have resulted in prolonged restriction in activity and subsequent gain of weight. He states that the applicant should attempt to reduce his weight by dietary means but does not accept the Isagenix diet has any benefits over other ways to reduce calories.
f.197. I have accepted from a review of the evidence that there is an unbroken chain of events which commence with the applicant having spinal pain due to his unsuitable work conditions at his home and which has led to an increase in weight due to decreased activity due to that spinal pain. Dr Bird asserts that the limited success which the applicant had in reducing his weight in 2021 was due to the Isagenix diet.
a.198. I prefer the opinion of Dr Bird in regard to the recommendation for weight loss because he has the responsibility of the ongoing care of the applicant and is satisfied that the Isagenix diet is an effective form of treatment.
b.199. As with the recommendation of the IV saline solution, Dr Bird does not set out any parameters for how long the Isagenix diet should be used. However, the benchmark is whether the applicant is able to lose weight. The reduction from 135 kg to 133 kg in a few months in 2020 when the applicant was using this diet, as well as the applicant being able to lose a few extra kilograms more recently, provides for some optimism for the applicant.
c.200. Despite Dr Bird not providing any parameters for the use of the Isagenix diet, I consider that the applicant should be given a reasonable amount of time to allow for the potential benefit of this diet. Based upon the observations of Dr Bird that the applicant was able to reduce his weight by 3 kg within two months in 2020.
d.201. A period of six months should be sufficient time from past experience to determine if the Isagenix diet is likely to now benefit the applicant. There will be an order that the respondent is to pay for the cost of the Isagenix diet for a period of six months from the date of this determination.
The claim for past medical expenses
a.202. The applicant claims the cost of the Isagenix diet, consultations with Dr Bird and medications which he has incurred to date as a result of his work injury.
b.203. Those medical expenses appear reasonable given the findings which I have made in the course of this decision. There will be an order that the respondent is to pay for the cost of the Isagenix diet, consultations with Dr Bird and medications which have been incurred by the applicant and which have resulted from the work injury sustained by the applicant pursuant to section 60 of the 1987 Act.
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