Heather v Telum Civil (NSW) Pty Limited - [2021] NSWPIC 38

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Heather v Telum Civil (NSW) Pty Limited [2021] NSWPIC 38
APPLICANT:	Stanley Heather
RESPONDENT:	Telum Civil (NSW) Pty Limited
MEMBER:	Mr John Wynyard
DATE OF DECISION:	22 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for declaration that surgery reasonably necessary; liability declined on basis that need for bilateral hip surgery did not result from the injury; back injury suffered in 2011; diagnosed at the time as a minor sprain; worker developed significant osteoarthritis in the hips in 2014; investigations in February 2015 showed L4/5 disc prolapse; Qannadian v Bartter Enterprises considered in relation to approach to content of clinical notes; Held- award for the respondent; contemporaneous clinical notes inconsistent with worker’s statements, all of which made some years after the subject employment injury.
DETERMINATIONS MADE:	1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Stanely Heather, the applicant, brings an action against Telum Civil (NSW) Pty Ltd, the respondent, for a declaration pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that the proposed bilateral total hip replacement is reasonably necessary.

Dispute notices were issued, and proceedings were subsequently commenced.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) Does the need for surgery result from the employment injury?

PROCEDURE BEFORE THE COMMISSION

This matter was heard by video link on 24 February 2021. The applicant was represented by Mr Gauci, instructing Mr Stuart Grant of Counsel. The respondent was represented by Ms Cook, instructing Ms Eraine Grotte. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.

Oral evidence

No application was made regarding oral evidence.

FINDINGS AND REASONS

At the outset of the hearing, a consent amendment was made to the pleadings, whereby the words “consequential injury to his right and left hips as a result of employment duties with the respondent leading up to 20 April 2011” were added to the Injury Description in substitution for those words appearing after the words “lumbar spine.” The result is that the applicant no longer claims he injured his hips in the subject employment, but that their condition, for which the proposed surgery is sought, was consequential.

It is common ground that Mr Heather suffers from degenerative bilateral osteoarthritis in his hips. The subject injury is alleged to be the aggravation of Mr Heather’s osteoarthritic lumbar spine, which occurred on a deemed date of 20 April 2011. Mr Heather made a claim in relation to that injury which was accepted, and his file was closed on 24 June 2011. Mr Heather was advised by letter on that date by the insurer. The reasons for the closure were given:
“ l     You have achieved a favourable return to health and a successful return to work.
·        All payments of your outstanding entitlements to workers’ compensation benefits have been made.
·        You currently have no ongoing entitlements to workers’ compensation benefits.”

The issues raised in this case make it appropriate to refer contemporaneous material in some detail.

2011
Medical certificates

Dr Mahima Abeyaratne was Mr Heather’s GP at that time. She issued a series of WorkCover medical certificates between 2 May 2011 and 26 May 2011 certifying Mr Heather to be fit for suitable duties a result of an injury to his “Low back/thoracic strain and left forearm strain.” The cause of the injury was described as “Frequent repetitive shovelling.”[1] On 2 June 2011, Dr Abeyaratne certified Mr Heather to be fit for his pre-injury duties.[2]

Clinical notes
[1] ARD pages 105-101.
[2] ARD page 100.

The notes from Dr Abeyaratne’s practice, Sonic Health Plus in Guilford, were lodged. The first complaint was recorded on 2 May 2011. The entries were handwritten but were in the main legible. There were four relevant entries between 2 May 2011 and 2 June 2011.[3]

[3] ARD pages 67-70.

On 2 May 2011 the entry read, relevantly:

“low & upper back pain last 10 days – with constant/repetitive shovelling.
Low back pain
pain in the rt leg – upper lateral thigh…….
Denies P & N…”

On 9 May 2011 the entry read:
“LBP – UBP
denies radiating (?) Pain/P & N/ numbness”.

On 16 May 2011 the entry read:
“improving back minor discomfort.”
On 2 June 2011 the entry read:
“PID – R/V if required.”

2015

The next time Mr Heather sought medical treatment was apparently when he went to see Dr Shimul Das at the Wentworthville Medical and Dental Centre in 2015.
Mr Heather also saw Dr Tony Girgis at that practice.
The clinical notes recorded that Mr Heather attended the practice for the first time on 24 February 2015,[4] just under four years after last seeing Dr Abeyaratne in Guilford. On this occasion Dr Das recorded, relevantly:
[4] ARD pages 85 – 90.
“1st time in this surgery
He came here for low back pain and hip pain
He said he had low back pain for 1 year
Also right hip pain for 2-3 years
Had an xray of hip in Dec – showed advanced OA
Said his low back pain radiates to the right lower limb
…
He said he was in Victoria (Melbourne), had an work related injury 3 years ago-
This back pain is not related to workers comp he said
…”
On 4 March 2015 Dr Das recorded:
“He had an injury to his lower back in April 2011. He was diagnosed as a lower back and [thoracic] sprain and left forearm sprain. Now he is here telling me that he has rt hip problem. He has OA.
He states that it is related to his lower back injury in 2011. He has rt sciatica.
Antalgic gait
…
Rt hip movements are restricted
No neurological deficits of lower limbs.
X ray hips showed advanced rt hip OA and moderate OA left hip. His CT.
Scan showed L4/5 disc prolapse”
On 6 May 2015 Dr Das’ entry read:
“….He is telling me that his solicitor is asking about why I did not tick yes for the relationship of his condition to his injury, I told him that I would accept that the back is related to shoveling for three months but not the hip
OA.
Limping gait.”
On 16 September 2015, Dr Das recorded:
“He is here to see for his lower back and hip pain. Panadol osteo is not helping still.
I started him on Naprosyn. I told him that he has a lower back disc
Problem and osteoarthritis of both hips but we have to prove to the insurance that it is related to his injury in 2011. he returned to pre injury duties in 6/2011 and he is telling me that they forced him to do so.
On questioning about why he did not seek further medical treatment after going to his pre injury duties he said that he had no pain for a year.
I explained to him that we have to have an old ct scan ls spine showing that you had the disc then.
He told me that he had lower back pain then and he has it now and he thinks it is the same problem.it was aggravated. I asked him about the cause of the aggravation he told me he did not know.
Antalgic gait.”
An entry on similar lines appeared on 25 November 2015. Dr Girgis recorded:
“He is here for another certificate. We discussed the letter I wrote to his solicitor.
We have to prove first that his lower back injury resulted into his disc prolapse and that could have caused QA of the hips due to his antalgic gait.
He denies any involvement in sports. He had no recreational activities. He informs me that he worked in demolition industry for 8 years prior to his lower back injury. He never had any injuries then and he never complained of his lower back or hips pain.
Antalgic gait.”

Dr Tony Girgis

Dr Tony Girgis supplied a number of reports between 6 May 2015 and 11 June 2018. On 15 September 2015 he reported on a CT scan ordered by Dr Das.[5] Dr Girgis noted that it showed mild L3/4 spondylosis and L4/5 intervertebral disc prolapse with bilateral radiculopathy. He also noted the WorkCover certificates issued by Dr Abeyaratne in 2011, and that Mr Heather had recovered from that injury. Dr Girgis said:[6]
“Under such circumstances, it is really difficult to confirm that his discogenic lower back pain he has now is related to his work related injury on 20 April 2011 let alone his hip osteoarthritis.
Osteoarthritis does not develop in three months from hard shovelling.
If we really do want to prove that his hip osteoarthritis is related to his discogenic lower back pain then we need the following:
1. A previous CT scan LS spine done at the time of the 20/4/2011 injury showing an L4/5 disc prolapse
2. Prove that he was not involved in any kind of social or sportive activities that could have led to osteoarthritis of the hips.”
[5] ARD page 39.
[6] ARD pages 39-40.
On 11 June 2018 Dr Girgis wrote to Mr Heather’s solicitors, who had supplied a supplementary statement by Mr Heather (which I assume was that dated 10 July 2017). Dr Girgis repeated his misgivings about there being any connection but said that the new information from the supplementary statement made it possible to connect the lower back injury with the osteoarthritic knees, linked by his antalgic gait.[7]

Dr Oates
[7] ARD page 37.

Dr Christopher Oates, Consultant Occupational Physician, was retained as Mr Heather’s medico-legal expert. On 19 September 2018 Dr Oates took a history from Mr Heather, and having carried out an examination and viewed investigations, Dr Oates concluded that Mr Heather’s hip condition had been aggravated and accelerated during the three month course of shoveling duties with the respondent in 2011, which had been the main contributing factor to the condition of Mr Heather’s osteoarthritic hip. Dr Oates said that Mr Heather’s condition was symptomatic advanced osteoarthritis of the right hip, aggravation of degenerative change of the lumbar spine and L4/5 disc herniation with potential nerve irritation.[8]
[8] ARD page 22.
Dr Oates noted that Mr Heather had consulted a GP in Dandenong on 9 December 2014, who had noted a one year history of right hip and low back pain causing limping. The GP had noted a restricted range of movement in the right hip, and an x-ray had been taken which showed severe osteoarthritis in the right hip and moderate changes in the left hip. No evidence was lodged from that GP.
The other investigations before Dr Oates were a CT of the lumbar spine dated 24 February 2015 and an ultrasound/x-ray of the left elbow dated 18 October 2016.
Dr Oates wrote a further report on 28 September 2020.[9] He took a similar history and noted that Mr Heather’s pain was a lot more severe and was consistently present in both hips in the groin and buttock area, with a worsening of his lower back pain. When asked whether the subject employment was the main contributing factor to Mr Heather’s condition, Dr Oates said:
“Yes, my opinion is that his employment in the first quarter of 2011 is the main contributing factor associated with aggravation, acceleration and deterioration of the disease of osteoarthritis in the hip, initially in the right side and later on in the left side. This is because the area became symptomatic during the period of his employment with [the respondent].
Although no investigations were taken at the time of onset of symptoms, it is likely that he did have pre-existing osteoarthritis which, prior to working at [the respondent], had been asymptomatic….and there had been no subsequent injury to the hips or back, but there has been exacerbations of hip and back pain when undertaking activities involving prolonged standing and walking or bending.”
[9] ARD page 15.
In his first report, Dr Oates had recommended against a bilateral total hip replacement, but he altered his opinion in his second report. He said that in his earlier report he observed:
“…. that if his circumstances changed in that he had unremitting, rather than intermittent, pain in the hips, then the only solution would be to perform a hip replacement, premature or not….
This scenario has in fact played out, in that his symptoms have deteriorated over time without any further provoking incident or injury….”

Dr Randhawa

Dr Sunny Randhawa is a Hip, Knee & Trauma Surgeon to whom Mr Heather was referred by his GP Dr Sasikaran. On 7 May 2019 Dr Randhawa reported that Mr Heather gave a history of the onset of bilateral hip pain which started to become severe a couple of years after he suffered a workplace lower back injury in 2011. Dr Randhawa noted that Mr Heather eventually recovered from his back injury but that since then his right hip especially had become worse as had the left hip to a lesser extent. The history taken was that since 2015 Mr Heather had been troubled by his hips. Dr Randhawa said:[10]
“There is a strong possibility that Stanley’s premature hip degeneration is due to his chronic lower back injury dating back to 2011. There is no imaging of his lower back available to us from that time, so this is impossible to be certain of. Severe low back pain and altered gait pattern is definitely a cause for premature degeneration of the hips however.”

Statements
[10] ARD page 33.

Mr Heather made three statements dated 29 April 2015, 10 July 2017 and 22 October 2020.[11]

29 April 2015
[11] Respectively, ARD pages 1, 4 and 5.

In his statement of 29 April 2015 Mr Heather explained the circumstances of his employment with the respondent, and said that whilst on secondment to Sydney Water he was required along with 10 other workers to work on a large water culvert which ran for many kilometres around Fairfield. Mr Heather said that, given the size of the culvert, workers spent a long time bent over with stooped postures whilst manually shovelling. This work was continual, and no significant rest periods were provided.
At paragraph 12, Mr Heather said that he started to notice some soreness in his lower back and left forearm over time. On 20 April 2011 he claimed workers compensation, which was accepted. He said that he was provided with some very light office work with the respondent and was “very quickly cleared” to return to pre-injury duties. Mr Heather said that there was “some level of pressure” from both the respondent and Sydney Water to obtain a full clearance.
Despite obtaining this clearance Mr Heather found that little work was available in the short-term and he took on a job in the latter part of 2011 working for the respondent at Star Casino. This consisted of clearing a drain and using a machine. It was “fairly light work” which he did for some months, but he found that his back “never really settled down,” notwithstanding that he had assumed that it was just a bad sprain.
Mr Heather then undertook a course in Telecommunications Cabling which involved two courses of about six months each, and he subsisted on job search payments. He said that he also worked with another agency doing gate entry and security work at a new estate.
In the latter part of 2014 and early 2015 Mr Heather was doing “very light work” working through an agency with Philip Morris performing shutdown work at their factory. Mr Heather found that standing for extended periods was causing worsening symptoms. At paragraph 16 he said:
“I have been putting up with the symptoms in my back and in my hips for some time and felt that my condition was deteriorating, not improving. In this regard, I noticed I have been walking with a limp for some time and noticing pain in my hips, particularly in my right hip….”
Mr Heather said that these symptoms prompted him to consult Dr Girgis and to cease working for Philip Morris.
Mr Heather’s left arm condition had largely settled but he said that the symptoms in his back had not, and had worsened over time. He also said that he had developed a fairly prominent limp:[12]
“….and believe that this may be a contributing factor to the symptoms I am experiencing in my hip. My hips have always been sore to some extent since the work I was doing in January – April 2011 and I would attributed this to the bendings to posture in which I was working and a requirement to adjust to move my hips to allow my body access to the area underneath the culvert.”

10 July 2017
[12] At paragraph 19.

Mr Heather made a supplementary statement on 10 July 2017, as indicated. He said at paragraph 1:
“It has been drawn to my attention that Dr Girgis… has raised a number of questions about my previous history when considering whether my hip is related to my back.”
Mr Heather conceded that he did spend some time in Melbourne between 2013 and 2014. He said he became aware of a state government initiative related to the NBN rollout to pay for training in telecommunications. Because his cousin lived in Melbourne, he took up that opportunity, staying with him in Dandenong.
He said that he would travel between Sydney and Melbourne to do his course and that he spent about two - three months “at the longest stretch” doing his study. Mr Heather said that he was also doing some casual work, and that he was doing some auditing for the NBN. He was required to drive to various parts of Melbourne to ensure that streets were suitable for the rollout. He said at paragraph 8:
“It was in Melbourne that my hip pain became most acute.”
Mr Heather then explained that because he had not experienced any injuries, car accidents or other problems that would explain why his right hip began to deteriorate around 2013/2014, he considered that its cause must have been because he was limping through his back pain which had become acute and constant from around 2012. He added:
“I also spent three or four months bent over and shovelling in the culvert for Sydney Water.”

22 October 2020

Mr Heather referred to Dr Randhawa’s recommendation for a bilateral hip replacement. Mr Heather said that he been told that the cause was because of his work injury and altered gait. He was also told that it was likely that he had some degree of arthritis when he began the 2011 job.
Mr Heather said that he told Dr Randhawa that he did not know he had any problems with his hip and that it was only after he did the job at Sydney Water, spending his time bent over, that he developed back pain and that he then limped as a result. Mr Heather said:
“9.     The only thing I can conclude that has caused my right hip to become so painful is the work I did with Sydney Water for that three month period.
10.    That job was three months in a fixed position repetitively.
11.    We worked half crouched under the culvert. I am right-handed and right legged, and use my left leg to dig into the dirt with the shovel.
12.    In hindsight, we ought to have rotated duties and done different jobs. I ought to have switched feet with the shovel to protect my right leg.”
Mr Heather said that he had not worked since working for the NBN Co in Melbourne, which he again emphasised was not heavy work. He used a clipboard and pen, and went door to door so that the total walking was minimal as well, he said.
Mr Heather said that he missed a number of appointments with Dr Girgis, who became upset with him and wanted to discipline him, saying that he could no longer see him.
Mr Heather concluded by saying:
“28. I cannot think of any other basis for my right hip problem and my back problem. As a consequence, I believe that these problems have caused my left hip problem. All of these things have only come on since I worked under the water culvert digging. I wish I had done things differently.”

SUBMISSIONS

Mr Grant

Mr Grant’s submissions relied very heavily on an acceptance of the evidence given in the statements by Mr Heather. He submitted in effect that such inconsistencies as appeared were not fatal to his case.

Mr Grant submitted that there is a danger in relying on the contents of the notes from health professionals, a proposition that is well established[13]. He said that looking at it from the point of view of the applicant, his belief was not unreasonable. He said that before 2011 Mr Heather was experiencing no problems, but having done the three months of heavy work in digging a culvert in 2011, and subsequently, he suffered from an injury to the back and had been symptomatic since.

[13] See Qannadian v Bartter Enterprises [2016] NSW WCCPD 50 (Qannadian).

It was never suggested that Mr Heather had injured his hips at that stage, Mr Grant said, but by 2015 there was evidence that he had developed an unusual gait which was affecting the right leg, which in turn caused a consequential condition to the right and left hips.

Mr Grant submitted that it could not be expected that the applicant could understand the concept of a consequential condition, but Mr Heather had nonetheless been complaining of his condition for at least six years, being the date of his earlier statement in 2015.

Although the s 74 notice suggested that there had been no L4/5 disc protrusion detected in 2011, Mr Grant said an inference to that effect was available because Mr Heather complained of back pain in the area of the L4/5 and also that he had pain down the right leg.

Dr Abayaratne’s note dated 2 May 2011, Mr Grant said, was consistent with an L4/5 disc pathology, even though no investigations had been undertaken at that stage.

He submitted that the sum total of the respondent’s case was that there were inconsistencies in the evidence that did not support Mr Heather’s narrative. No evidence was lodged by the respondent to refute the inference of a disc rupture that was clearly available.

Mr Grant asked rhetorically how did Mr Heather’s condition develop? He said that we know that on 18 February 2013 an inquiry was made with the insurer about a recurrence, as it was mentioned in the s 78 notice, which Mr Grant submitted was contemporaneous evidence as to the continuity of symptoms. The x-ray reported by Dr Oates as being taken by a Dandenong GP in December 2014 was evidence that the condition of Mr Heather’s hips was well entrenched by that time, Mr Grant said. By the time Mr Heather saw Dr Girgis in March 2015 Mr Heather was clearly limping.

Mr Grant conceded that through the various medical reports there was some confusion as to the dates of the onset of the various symptoms. However he submitted that in cases such as this which involved long periods of time, some inaccuracies within medical histories could be expected. Mr Grant repeated that caution should be exercised when relying on clinical notes in general and in particular when relying on histories within those notes.

Mr Grant submitted that although Dr Girgis was initially hostile to the concept that the 2011 injury had caused a consequential condition by the aggravation of Mr Heather’s underlying osteoarthritis, nonetheless in his report of 11 June 2018, having read Mr Heather’s 2017 statement, said it was possible that the bilateral hip osteoarthritis could be secondary to Mr Heather’s antalgic gait, which itself had been caused by chronic discogenic low back pain. This causal nexus was considered by Dr Randhawa, who said that there was a “strong possibility” of that connection.

Whilst there was no certainty in medical science, the evidence before me showed that it was more probable than not that the causal nexus between the subject employment and the onset of Mr Heather’s consequential hip condition had been established. Mr Grant submitted that there was contemporaneous support in more recent years, and no other cause suggested itself, as Mr Heather was too young for this condition to have been caused by degenerative change. Mr Grant submitted that Dr Oates gave the causal link in that he said the prolapse at L4/5 had been caused by the 2011 employment although he conceded that Dr Oates had not taken a history of an altered gait which led to the hip problem.
Mr Grant also submitted in discussion at the outset of the hearing that the evidence showed that the injury in 2011 materially contributed to Mr Heather’s present need for bilateral total knee replacement surgery.

Ms Grotte

Ms Grotte agreed with Mr Grant that the content of clinical notes had to be approached with caution. She said however that these notes were precise and incapable of misinterpretation in the crucial entries. She said that the applicant’s case was vague and relied heavily upon the applicant’s narrative.
She said there were inconsistencies about both the injury in 2011 and the subsequent narratives that evolved over time, and those inconsistencies made the Mr Heather’s evidence impossible to accept.
It had been submitted that Dr Oates could be relied upon as supplying “irrefutable evidence” that Mr Heather was suffering from ongoing symptoms which included a limp and antalgic gait. She referred to Dr Oates’ opinion of 28 September 2020, which spoke of Mr Heather’s antalgic gait having been caused by his hip problems, not the back injury.
She submitted that there was no evidence that the back injury caused an antalgic gait beyond what Mr Heather had said in his statements. She referred to the first statement of 29 April 2015, and submitted that Mr Heather did not suggest that the condition of his hips was consequential, but rather that the work he did digging the culvert in 2011 had caused his hip problem.
Ms Grotte submitted that his evidence was vague as to his movements up to 2014 and 2015. She submitted that although there was a statement from the insurer that Mr Heather had contacted it in 2013, there was no evidence to support any suggestion that it involved the hips. Ms Grotte submitted that whatever Mr Heather’s reason was for contacting the insurer, he certainly sought no medical help at that time.
She referred to paragraph 16 of his first statement and noted that Mr Heather did not say that he had ongoing pain from 2011. There was nothing from any general practitioner and no contemporaneous evidence to support Mr Heather’s contention over that four years, which Ms Grotte described as a significant gap in the evidence.
The evidence was vague as to how the limp started and it was probable, Ms Grotte submitted, that Dr Oates’s view was correct and that it was the hip problem that caused the limp.
Dr Girgis suggested at one stage that this case was to do with consequential injury, but Ms Grotte said he was relying on histories that were “all over the place”. She noted that when the case was set down for hearing, it was on the basis that the shovelling work between January and April 2011 Mr Heather had suffered an injury to his hips. She noted that case was now abandoned, notwithstanding that it was the case supported by Mr Heather’s medico-legal specialist, and the case was now that the hip condition was consequential on the 2011 injury.
Ms Grotte submitted that the subsequent supplementary statements by Mr Heather of 10 July 2017 and 22 October 2020 were designed to supply the missing evidence that was referred to by Dr Girgis, who had supplied in his report of 15 September 2015, the template for the necessary evidence.
Ms Grotte then referred to the contemporaneous notes made at Dr Girgis’s practice, which were originally made by Dr Das when Mr Heather first reported complaining of symptoms. This was in March 2015 well after the events of 2011, Ms Grotte said. Dr Girgis noted that Mr Heather thought that Dr Das had misunderstood what he said but Ms Grotte said the note was explicit in its terms. Whilst she acknowledged the force of Mr Grant’s submissions regarding the danger of relying on clinical notes, Ms Grotte said that there was no ambiguity in the notes that related the first attendance in 2015, rather they were very specific.
Mr Heather’s statement of 10 January 2017 mentioned the year 2012 for the first time and Ms Grotte submitted I would place very little weight on it as it was clearly designed to plug the gaps that had been adverted to by Dr Girgis.
The first thing to notice about Dr Das’s notes was that he recorded complaints of lower back pain of one year and hip complaints of two to three years, Ms Grotte said. Those complaints involved a timespan that did not include 2011.
Ms Grotte submitted that it was incorrect to suggest that Mr Heather was suffering from pins & needles and numbness at the time that he sought medical attention for his 2011 injury. The notes specifically mentioned an absence of “P & N,” which Ms Grotte submitted, quite reasonably, must stand for pins and needles.
In his reports Dr Oates simply repeated the history he had been given but Ms Grotte submitted the evidence did not support either Dr Oates’s or Mr Heather’s belief that the causal chain linked back to 2011.
Ms Grotte submitted that if the injury in 2011 was as severe as Mr Heather now says it was, it would be a reasonable assumption that investigations would have been carried out and they were not.
Ms Grotte then referred to the clinical notes of Dr Das which confirmed the complaint that the hip symptoms had only occurred in the last 2-3 years. I was also referred to the entry by Dr Das of 6 May 2015 wherein he refused to relate the hip injury to the subject employment.
Ms Grotte submitted that the inconsistencies within Mr Heather’s case meant that the chain of causation was broken, as a matter of common sense.
Ms Grotte said there was no disc prolapse in 2011. The notes simply show the complaint of radiating pain but a denial of pins and needles and numbness. She submitted that I would be reluctant to make a finding on that evidence that there was a connection between the 2011 work and Mr Heather’s current hip condition.
She submitted that I would not accept Mr Grant’s argument that the 2011 work materially contributed to Mr Heather’s current hip condition. Mr Grant had referred to Cluff v Doherty Bros (Wholesale)[14] (Cluff) and to State of NSW (Department of Education) v Johnson.[15]
[14] (1979) 53 WCC 167.
[15] [2019] NSWCA 321.
Ms Grotte submitted that the case was not presented on that basis, and there was in any event no causal nexus that would connect the subject employment with Mr Heather’s hip condition.

Mr Grant in reply

Mr Grant submitted that it was incorrect to say Mr Heather went back to pre-injury duties and I was referred to Mr Heather’s first statement in that regard. Mr Grant repeated that he was relying on Cluff and that there was an unbroken causal chain between the events of 2011 and the current need for bilateral hip surgery.
Mr Grant submitted that where the Commission was dealing with injuries that had occurred over a period of time, the inconsistencies alleged by Ms Grotte were not determinative, as it was well known that symptoms tended to wax and wane over such a long period of time.
Mr Grant accepted that no investigations were done regarding Mr Heather’s back in 2011 and that therefore there was no positive evidence of the disc prolapse and radiculopathy at that time. He submitted however that the involvement of the right leg was suggestive of the start of radicular symptoms and could be traced to the pathology which was found in the CT scan in 2015. He suggested that the applicant was on solid ground regarding his back problems and that the delay in the development of symptomatology was probably explained by the lighter nature of the work he then did.
He said there was also some difficulty in cases such as this where there was no convenient history in one set of clinical notes which covered the whole time, as Mr Heather had spent some time in Melbourne. He submitted that Mr Heather said that he had been suffering from these problems since 2011. There was no other explanation put forward as to how they could have developed and that the causal link was therefore relatively clear.
Mr Grant submitted that it was unlikely that Mr Heather’s situation was because he was constitutionally susceptible to early arthritis as he was a comparatively young man. The evidence would satisfy me that it was the antalgic gait that caused the onset of the hip symptoms, he said.
Mr Grant submitted that Dr Girgis made an interpretation of what Dr Das had understood Mr Heather to be saying to him but there is no report from Dr Das himself.
Mr Grant also took exception to Ms Grotte’s suggestion that the 2013 report to the insurer was a typo and it should be 2015. He submitted that the terms of that entry and the s 78 notice were unambiguous. He submitted that the respondent had not produced any medico-legal expert evidence itself and defended the case on the basis of the alleged inconsistencies within Mr Heather’s case. That, Mr Grant submitted, was a “little bit dangerous.”

Discussion

Mr Heather suffers from an advanced osteoarthritic degeneration in his hips, the right hip particularly. He seeks a declaration that the bilateral total hip replacement is reasonably necessary, which is not in contest, as a result of his injury with the respondent, which is. The respondent denied that there was any such causal connection.

I was impressed by Mr Heather’s statements. He quite accurately set out the basis of his claim, and the facts that supported it. His evidence was comparatively objective, and consistent.

However a belief, honestly held, does not necessarily constitute reliable evidence, and the difficulty with Mr Heather’s statements is that the earliest statement post-dates the subject employment by four years. By 29 April 2015 Mr Heather was necessarily relying on his recall of the events between 20 April 2011 and 24 June 2011. Over that four year period he had continued working at various jobs, including some time working for the respondent at Star Casino in Sydney, and for NBN in Melbourne after he had obtained his certification.

Whilst there was evidence touching on Mr Heather’s medical condition during that time, it was inconclusive and did not assist to support his assertions. On its face the s 78 notice of 11 February 2020 is prima facie evidence that on 18 February 2013 Mr Heather contacted the insurer to advise of a recurrence of his injury. I was invited to find that the year had been a typographical error and it should have been 2015, but as Ms Grotte properly conceded, there was no basis for that invitation. The highest I can place that evidence is that an inference is available that on 18 February 2013 Mr Heather advised of a recurrence of his back injury, as that was the injury that had been compensated by the insurer in 2011. There is no basis for any supposition that Mr Heather’s phone call indicated that his back injury had been discogenic in nature, nor that it also concerned his hips.

The other evidence as to any medical difficulty encountered by Mr Heather after June 2011 was the x-ray taken of his right hip at Dandenong on 10 December 2014, as was reported by Dr Das and Dr Oates. Again, that evidence does not assist Mr Heather, for it shows that his first complaint about his hip did not occur until that date.

I take into account submissions of Counsel that when dealing with the clinical notes of health professionals, care must be taken. In Qannadian President Judge Keating said at [35]:

“Mason is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force[2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:
‘It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36])’.
37. The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence.”

Mason was a reference to Mason v Demasi.[16]

[16] [2009] NSW CA 227.

Mr Grant submitted that the evidence was consistent with an inference that the injury Mr Heather sought medical treatment for in 2011 was discogenic, as Dr Abeyaratne noted a complaint of pain in the upper lateral thigh of the right leg. I think that interpretation to be unlikely. Dr Abeyaratne also noted that there was no sensation of pins and needles on the first two occasions of the four she saw him, which is an indication that she was alert for any neurogenic signs. She noted on 9 May 2011 that Mr Heather was not experiencing any radiating pain or pins and needles, and by 16 May 2011 she noted he was improving and complaining of only minor back discomfort. The last entry of 2 June 2011 I accept indicated that Mr Heather was fit for pre-injury duties (“PID”) but should be reviewed (“R/V”) if required.

When Mr Heather next presented for further medical treatment in 2015, the records kept were unusually complete. Mr Heather’s GPs at the Wentworthville Medical and Dental Centre paid particular attention to the complaints by Mr Heather. Dr Das recorded on the first consultation of 24 February 2015 that Mr Heather’s complaint of low back pain had been present for one year and his right hip had been symptomatic for two - three years. That entry was not expressly challenged in Mr Heather’s statements. Dr Das also recorded the first mention of the x-ray of Mr Heather’s right hip in December 2014.

Mr Heather by this time was clearly aware that he had a significant condition. Every entry in the notes thereafter recorded that Mr Heather had an antalgic gait. The x-ray showed advanced osteoarthritis in the right hip and moderate osteoarthritis in the left hip, and a CT scan ordered by Dr Das on 24 February 2015 demonstrated mild L3/4 spondylosis and an invertebral disc prolapse at L4/5 with bilateral radiculopathy.

Also by this time, Mr Heather had developed his theory as to the cause of his hip condition. This was clearly discussed with Dr Das on 4 March 2015 in what I assume were fairly forthright terms, as Dr Das’s entry spoke about Mr Heather “telling me” that he had a right hip problem and that it was related to the 2011 injury.

Mr Heather’s hypothesis was further mentioned in the entry of 6 May 2015 when Dr Das again recorded that Mr Heather was “telling me” that his solicitor wanted to know why Dr Das had not accepted there was a relationship between the 2011 injury and his hip condition. The comment made by Dr Das was unambiguous, that he would accept that the back was related to shovelling for three months, but not the osteoarthritis in the right hip.

The ensuing entries showed the evolution of Mr Heather’s theory, as both Dr Das and Dr Girgis discussed its problems with him. I note in the entry of 16 September 2015 Mr Heather in answer to a question why he sought no further medical treatment after going back to preinjury duties in 2011, said that he had not had any pain for a year.

Mr Heather’s solicitors had also written to Dr Girgis, who replied on 15 September 2015 that it was “really difficult” to confirm that the injury sustained in April 2011 was related to Mr Heather’s current discogenic back problem or his hip osteoarthritis. That reply also set out what Ms Grotte described as “the template” as to what was needed to establish the connection – namely, a lumbar spine CT scan contemporaneous to the 2011 injury (which had never been taken) and to negate any involvement in social or supportive activities that could have led to the onset of the osteoarthritis. On 25 November 2015 the entry showed that Mr Heather told Dr Girgis that he had no involvement in sports or recreational activities, when discussing Dr Girgis’s report.

Mr Heather’s solicitors sought a further opinion from Dr Girgis three years later, as indicated, dated 11 June 2018. It was this report that Mr Grant placed some importance on, as Dr Girgis was asked to accept the contents of Mr Heather’s supplementary statement of 10 July 2017. As indicated, Dr Girgis repeated his reservations as to there being any connection.

Dr Girgis conceded that the supplementary statement made it possible that Mr Heather had sustained a discogenic lower back pain on 24 April 2011, and his bilateral hip osteoarthritis “could be secondary” to his chronic discogenic lower back pain that resulted in an antalgic gait for the ensuing three years. Dr Girgis continued:

“Of course some individuals are also genetically predisposed to develop premature osteoarthritis of the hips but with consideration of all of the above and also his relatively young age for such a severe degree of osteoarthritis, there could be a causal relationship between his discogenic lower back pain and bilateral hip osteoarthritis..”

This opinion sums up the basis on which Mr Grant submitted that liability has been established. The supplementary statement of 10 July 2017 which caused Dr Girgis to alter his opinion however raised more questions. Mr Heather clarified that he had spent some time in Melbourne between 2013 and 2014 with his cousin at Dandenong. He said he would travel between Sydney and Melbourne to do his telecommunications study and would spend about 2 - 3 months at the longest whilst studying. He was doing auditing work for the NBN Co which required him to drive around various parts of Melbourne as indicated above, and he said that it was whilst he was in Melbourne that his hip pain became most acute. That is confirmed in that he sought medical advice and had the x-ray of his right hip taken in December 2014.

As Mr Grant submitted, in medical science anything is possible, but an applicant is required to satisfy his onus on the balance of probabilities. The supplementary statement of 10 July 2017 showed that Mr Heather lived an active life working in Melbourne and commuting to Sydney, and whilst his hip pain manifested itself in Melbourne, it did not become necessary for Mr Heather to seek medical attention until December 2014. That evidence raises the question as to whether he was suffering any symptoms as he went about his daily business, and if so for how long they had been present prior to December 2014. It is unlikely that he had been experiencing them for any length of time. He said himself that his back pain had become acute and constant from around 2012, so an inference is available that his protrusion occurred after he had left the employ of the respondent. Moreover, if his back condition did become as acute and constant as he later said, he nonetheless took no action to have it investigated, which is inconsistent with his later conduct in having his condition investigated when it did become acute in both December 2014 and February 2015. Further, if his back condition had become as acute and constant in 2012 as he remembered it in 2017, it is not consistent that only his right hip was investigated when he finally sought medical attention in December 2014.

Mr Grant relied on the opinion of Dr Oates to the extent that Dr Oates had diagnosed that an L4/5 disc herniation had been caused by the 2011 shovelling work, but Mr Grant did not claim that the subject employment had caused the aggravation of Mr Heather’s underlying osteoarthritis. There was good reason for this, as Dr Oates’ opinion to that effect was not supported by any of the more contemporaneous clinical notes, or the theory advanced by Mr Heather, or indeed the evidence as a whole.

I accept that the injury Mr Heather suffered whilst shovelling for three months in the manner he described caused him to suffer a back injury. However I am not persuaded that the nature of the injury was the L4/5 disc prolapse he was found to have in February 2015.

I note Mr Heather’s suggestion that he was given lighter duties, but it does not follow that he was therefore under any disability. He had been doing the heavy work of three months’ constant shovelling, and most duties are not that strenuous. He was back in the work force for the next four years, and did not seek any further medical attention until December 2014, which was in relation to his osteoarthritic hip, which was a different injury.

Mr Heather was off work for only four weeks, and he was not referred for investigations over that time. I take into account also that Dr Abeyaratne was apparently the company doctor, but Mr Heather was content to be treated by her. I note further that Mr Heather suggested that he was pressured to obtain a clearance for a return to work, but there is no contemporaneous record of that. Mr Heather did not raise it until he was looking back down the years, and there is always a danger that a person could innocently reconstruct the events recalled after such a time. This is particularly so in Mr Heather’s case, when he has since suffered the onset of his debilitating osteoarthritic condition, and has an interest in the outcome of the proceedings he has launched.

Further, both Dr Oates and Dr Das took a history that in 2015 he had been experiencing back pain for one year, and hip pain for two to three years, whilst Mr Heather had also told Dr Das that he had been free of back pain for a year, and the matter was not related to workers comp. Mr Heather denied that he had made that latter comment, but whilst an entry in clinical notes may misstate histories, it is unlikely that the three similar histories from different sources at different times were all mistaken.
I decline to make the declaration sought. I am not persuaded that Mr Heather’s need for surgery results from the injury of 20 April 2011. As no causal link has been established it follows there has also been no material factor established.

There is an award for the respondent.

John Wynyard
MEMBER

22 March 2021