Hill v Kmart Australia Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hill v Kmart Australia Limited [2024] NSWPIC 71
APPLICANT:	Katherine Hill
RESPONDENT:	Kmart Australia Limited
MEMBER:	Brett Batchelor
DATE OF DECISION:	20 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for the cost of surgery to the lumbar spine by the applicant worker pursuant to section 60 as a result of injury in the form of the aggravation, acceleration, exacerbation or deterioration of an admitted pre-existing degenerative condition in the lumbar spine; there was no issue that the applicant had engaged in strenuous and repetitive work for the respondent over the long period of her employment; the respondent denied injury, alleging that the applicant became incapacitated for work as a result of a leisure time incident while on annual leave; detailed examination of the treating and qualified medical evidence; finding that the leisure time incident was not causative of the applicant’s back condition; finding that the applicant had suffered an injury to the lumbar spine pursuant to section 4(b)(ii); the respondent did not dispute that the applicant required the lumbar spinal surgery, but that it was not reasonably necessary as a result of a work injury; finding that the surgery was reasonably necessary as a result of the injury as claimed by the applicant; Held – the respondent ordered to pay for the costs of and incidental to the surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to her lumbar spine arising out of or in the course of her employment with the respondent deemed to have occurred on 18 January 2023. 2. The applicant’s employment was the main contributing factor to such injury. 3. The surgery proposed by Dr Damodaran in his report dated 7 March 2023 is reasonably necessary as a result of the injury. 4. The respondent is to pay for the costs of and incidental to such surgery pursuant to s 60 of the Workers Compensation Act 1987. 5. The applicant’s pre-injury average weekly earnings are $929. 6. The respondent is to pay the applicant $929 per week from 7 July 2023 to 21 July 2023.

STATEMENT OF REASONS

BACKGROUND

Katherine Hill (the applicant/Ms Hill) seeks weekly benefits for a short, closed period, and compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), as a result of injury to her lumbar spine on 18 January 2023 arising out of or in the course of her employment, initially as a back dock operator and from 2016 onwards as an online team leader, with Kmart Australia Limited (the respondent/Kmart).
The applicant commenced her employment with the respondent in or about 2003 as a back dock operator, which involved her in receiving pallets of goods and unpacking them into departments for the fillers to attend to.
In 2016 Ms Hill moved to the online department as a team leader, which involved her in, inter alia, picking customers’ orders by pushing a H-cage around the store and packing as she went, and loading and unloading the H-cages, stocking shelves, stock taking, working collaboratively with fellow team members to ensure that there was a proper allocation of staff to assist in heavy lifting, general store upkeep and other manual tasks as required.
It is not disputed that the applicant’s work was heavy and repetitive, involving twisting, lifting and carrying boxes of items which, she claims, placed continuous and repeated great strain on her back.
In or about 2018 the applicant suffered a work-related injury to her back, a claim for which was accepted by the respondent and subsequently closed. On her return to full duties,
Ms Hill claims that heavy and repetitive duties in which she was engaged continued to cause aggravation to and strain on her back.
Ms Hill worked, and continues to work, 30 hours a week for the respondent.
Ms Hill also has since 2020 been employed as a youth officer by the Department of Communities and Justice at the Baxter Juvenile Justice Centre every Friday performing sedentary work which involves monitoring detainees, sitting in on court proceedings, and transporting detainees to and from court.
In about September 2022 whilst performing her usual duties for the respondent the applicant noticed that constant pain had returned to her back and began to travel down her leg. Ms Hill claims that she had a discussion with her supervisor, Mandy, about this. During peak periods in November and December 2022 she was required to work harder and faster causing the pain to become “exacerbated and unbearable”. Ms Hill sought medical attention from her general practitioner, Dr Massie, on 10 January 2023 after her Christmas leave from the respondent. She says that on 18 January 2023 she was unable to get out of bed unassisted.
Dr Massie referred the applicant for an MRI scan on 11 January 2023, and arranged for the administration of a cortisone injection into the back which was unsuccessful in relieving the pain. Dr Massie referred the applicant to Dr Damodaran, neurosurgeon, who on
7 March 2023 recommended surgery in the form of a three level lumbar decompression and on 13 March 2023 requested approval to the procedure from the respondent.
The applicant was independently medically examined by Dr Casikar, neurosurgeon, at the request of the respondent on 5 April 2023. Dr Casikar in a report dated 20 April 2023 expressed the opinion that, while the applicant required the surgery recommended by
[1] Reply p 12, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (Commission).
Dr Damodaran, it was not due to any workplace injury. He said that Ms Hill suffered from constitutional degenerative disease of the lumbar spine, unrelated to her employment with the respondent, and that the primary cause of the applicant’s current condition was the natural progression of the degenerative disease of the applicant’s lumbar spine.[1]
On 13 July 2023 the respondent issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the applicant’s lower back injury, relying on ss 4, 9A, 33, 59 and 60 of the 1987 Act.[2]
[2] Application to Resolve a Dispute (ARD) p 17.
On 30 August 2023 the applicant was independently medically examined by Dr Hopcroft, general surgeon, at the request of her solicitor. Dr Hopcroft expressed his belief in a report of that date that it was more probable than not that the nature and conditions of Ms Hill’s employment with the respondent had aggravated, accelerated, and caused her lumbar spine pathology to deteriorate, and induced a refractory right-sided sciatic syndrome. He said that the treatment proposed by Dr Damodaran is one of several which is both reasonable and necessary, perhaps with localised laminectomy, discectomy and foraminotomy surgery at the L4/4 level, where he found objective decrease in the right knee jerk on repeated examination. He said that this may be a smaller neurosurgical step.[3]
[3] ARD p 30.
On 15 September 2023 the applicant requested an internal review of the respondent’s decision(s) dated 4 June [sic, April?] 2023 and 17 July 2023, accompanied by the report of Dr Hopcroft dated 30 August 2023. On 3 October 2023 the respondent issued a further s 78 notice in which it declined to overturn its earlier decisions declining liability for the applicant’s back injury.[4]
[4] ARD p 24.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Did the applicant suffer injury to her lumbar spine deemed to have occurred on 18 January 2023 arising out of or in the course of her employment with the respondent?
(b)    Was the applicant’s employment with the respondent the main contributing factor to the aggravation, acceleration, exacerbation or deterioration in the course of such employment of a disease condition in the lumbar spine?
(c)    Is the surgery proposed by Dr Damodaran, namely L3/4, L4/5 and L5/S1 lumbar decompression reasonably necessary as a result of injury to the lumbar spine deemed to have occurred on 18 January 2023?
(d)    What are the applicant’s pre-injury average weekly earnings (PIAWE) for the period of weekly benefits claimed from 7 July 2023 to 21 July 2023?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration hearing on 31 January 2024 conducted via video conference. Mr McEnaney of counsel appeared for the applicant briefed by Mr Dever. The applicant attended with his solicitor. Ms Balendra appeared for the respondent briefed by Ms Browne. A representative of the respondent attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents.
(b)    Reply and attached documents.
(c)    Wages schedule signed on 19 December 2023 and lodged by the applicant on that day (applicant’s wages schedule dated 19 December 2023).
(d)    Application to Admit Late Documents lodged 18 January 2024 (AALD
18 January 2023) with the following attachments:
(i)statement of Mandy Todd dated 11 July 2023;
(ii)supplementary report of Dr Casikar dated 13 November 2023;
(iii)email dated 13 November 2023 serving the report of Dr Casikar, and
(iv)email dated 15 November 2023 serving statement of Mandy Todd dated
11 July 2023.
(Following documents lodged in accordance with directions set out in [53] hereunder.)
(e)    Wages schedule signed on 6 February 2024 and lodged by the applicant on that day (applicant’s wages schedule dated 6 February 2024), and
(f)    Wages schedule signed on 15 February 2024 and lodged by the respondent on that day (respondent’s wages schedule dated 15 February 2024).

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties were recorded, a transcript of which can be obtained on request. In summary, they are as follows.

Applicant

The applicant notes a number of areas of “common ground” between the parties, namely:
(a)    there is no issue as to the nature of the work in which she was engaged over the 21 years during which she has been employed for the respondent from 2003 to 2024, firstly as a back dock operator until 2016 and thereafter as a team leader. Ms Hill refers to the nature of her duties particularised at [6] of her statement dated 1 June 2023.[5] While the applicant does not suggest that she was working on her own carrying out the work described, she does emphasise that it was not a light job, working 30 hours a week, bending, lifting, carrying, and twisting;
(b)    the applicant concedes the injury to her back in 2018, and that after recovering from this injury she returned to work on full duties;
(c)    the applicant notes that the respondent is relying on one photograph in evidence depicting Ms Hill being engaged in sail boarding in January 2023 as the reason for disputing the current injury to her back, looked at against a background of having accepted the earlier 2018 back injury. It is acknowledged that the applicant is currently engaged on light duties with the respondent, thereby revealing no other cause for her back injury;
(d)    the applicant is a hard worker, who laboured on for some time with her back injury, and only claims a short period of time off work in July 2023 as a result of the current injury;
(e)    there is also common ground between the doctors who have treated and examined her, notably Dr Hopcroft, Dr Damodaran, and Dr Casikar. All of these doctors find that Ms Hill suffers from a degenerative lumbar spine, not uncommon in a woman in her 50s, but claimed in this case to have been aggravated by the nature of the work in which she was engaged;
(f)    there is no dispute as to the pathology in the applicant’s lumbar spine;
(g)    Dr Casikar concedes that the surgery proposed by Dr Damodaran is appropriate, but disputes causation of the condition in the lumbar spine, and
(h)    the cause of the condition is accepted by Dr Damodaran and Dr Hopcroft.
[5] ARD p 2.
From [13] onwards in her statement dated 1 June 2023 the applicant refers to the onset of her pain in September 2022 when performing her normal duties, a conversation she had with her manager Mandy who when she saw the applicant limping asked if she “was okay”’, the fact that she did not officially report the injury but felt that she needed to “soldier on” and keep working in the hope that the pain would go away, and that she was required to work harder, longer, and faster during the peak period of November and December 2022 which caused her pain to become exacerbated and unbearable.
The applicant refers to the evidence of Mandy Todd in her statement dated 11 July 2023[6] in which Ms Todd says that she has no recollection of any conversation with Katherine Hill regarding any injury sustained at work “(Kmart Bateau Bay) September 2022.” The applicant submits that Ms Todd as supervisor to a great number of people in the store may have had difficulty in recollecting the conversation which Ms Hill claims to have had with her, and that does not mean it did not occur, or that it was invented by the applicant and that she has lied about it.
[6] AALD 18 January 2023 p 2.
The applicant submits that it should be accepted that the conversation she had with Ms Todd in September 2022 did occur, and that it was not a formal complaint or report of injury.
In respect of the photograph of the applicant on a paddleboard at 1.14pm on
3 January (2023) the applicant submits that this was taken at a time when Ms Hill was on her annual leave over the Christmas/New Year period, when it might be expected that she would spend time with family and friends. The applicant refers to her further statement dated
[7] ARD p 5.
16 October 2023[7] and submits that the photograph was a post made on New Years day, and taken prior to that date and at a time when she was still able to handle her back injury with the assistance of pain killers. She notes that she enjoys stand-up paddleboarding, something that at that time was near impossible (emphasis in original). The photograph shows a “microcosm” of the activities in which she was engaged at the time, a “tiny slice of her life.”
The applicant submits that the activity in the photograph, together with other photos in evidence, must be looked at against a background of an activity of short duration and against a background of working 30 hours a week at a busy time of year in November and December 2022 leading up to Christmas.
The applicant submits that, not to succeed in her case based on the activities shown in the photos, she must be found to have engaged in “pernicious lying” to her doctors in not mentioning paddleboarding, and that there is no challenge to her credibility in the proceedings.
The applicant refers to the clinical notes of Dr Massie in evidence,[8] and the record of her attendance on Dr Massie on 10 January 2023,[9] acknowledging that there is no record of the paddleboarding on 3 January 2023 mentioned therein. The applicant submits that the respondent must establish either that she lied to Dr Massie about the cause of her back pain on 10 January 2023, or that Dr Massie has omitted an important item of history.
[8] ARD p 58.
[9] ARD p 81
The applicant refers to the two visits to Dr Massie on 12 and 18 January 2023 recorded in the clinical notes,[10] and four subsequent visits, noting that what is recorded therein is consistent with her evidence as to the cause of her back injury and that work was a substantial cause of the injury. These notes provide, according to the applicant, “compelling” evidence in support of her case.
[10] ARD p 82.
The applicant refers to the evidence of her treating neurosurgeon, Dr Damodaran, in his report to Dr Massie dated 7 March 2023,[11] noting that this was six months since the onset of pain in the back in September 2022, and that from the Patient Information Form dated
[11] ARD p 50.
[12] ARD p 52.
6 March 2023 that she was still currently working, evidence that she wishes to keep working.[12]
The applicant refers to [4] and [5] in Dr Damodaran’s report dated 31 March 2023 to the case manager at Westfarmers[13] in support of her contention that it was the work activities in which she engaged with the respondent that were the cause of her injury.
[13] ARD p 46.
In summary in respect of the photographic evidence, the applicant submits that it does not bear scrutiny, and that there should be no finding that she lied to her doctors by not discussing the paddleboarding in which she engaged in January 2023.
The applicant notes that Dr Casikar accepts that surgery on her back is the appropriate treatment, but that the doctor does not have regard to a more nuanced reason for the causation of her injury. That is, because he says that there was no specific incident and a gradual onset of symptoms, the cause of her complaints is mainly due to progressive degenerative disease. The applicant submits that there is missing from Dr Casikar’s report a consideration of the type of work in which she engaged giving rise to her injury, before she commenced the light duties in the fitting room in which she is currently engaged. There is no record of the type of duties in which Ms Hill was engaged in the 21 years of her employment from 2003.
The applicant relies on the report and opinion of Dr Hopcroft, and the “unequivocal” opinion of Dr Damodaran as to the cause of her back injury.
In respect of the two weeks incapacity for work claimed by the applicant in July 2023, she submits that she was taken off light duties during this period, coincident with the issue of the s 78 notice dated 13 July 2023, having worked on such duties in the fitting room from January 2023. The applicant acknowledges that there is no direct evidence of incapacity during this two week period.

Respondent

The respondent concedes that there is no suggestion that the applicant is not a hard worker, having been employed by it for a long time, and that she suffers from a degenerative condition in her back. It is the causation of the condition which is in issue.
The respondent notes that the applicant relies on a date of injury of 18 January 2023 as the date on which incapacity arose as a result of the claimed aggravation of the condition in the applicant’s lumbar spine. The respondent submits that it is what occurred prior to that time off work in January 2023, with the applicant having been off work a long period of time from Christmas.
The respondent submits that the leave records of the applicant in evidence reveal that the applicant took sick leave between 8 and 13 December 2022 and on 22 December 2022, and then annual leave from 28 December 2022.[14] The respondent notes that the applicant accepts that she engaged in paddleboarding during the period of leave prior to the first stated date of incapacity on 18 January 2023. None of Ms Hill’s doctors were informed of this activity.
[14] Reply p 31.
The respondent submits that an examination of the records of the applicant’s treating general practitioner provide a basis for the opinion expressed by Dr Casikar as to the causation of the applicant’s back condition.
The first record relied upon by the respondent appears in the clinical notes of the Wamberal Surgery attached to the ARD, when Ms Hill consulted Dr Richard Oak on 30 March 2015 presenting with recurrent back pain, and was recorded as needing a referral for a back scan.[15] The next visit highlighted is recorded by Dr Deborah Cook on 30 November 2015 where the history includes reference to right leg pain, “…paraesthesia buttock to ant thigh to whole anterior calf”, and that stretches were not helping.[16]
[15] ARD p 74.
[16] ARD p 75.

A further entry in the clinical notes is in respect of an attendance on Dr Annette Barkey on
[17] ARD p 78.
[18] ARD p 80.
[19] ARD p 82.
25 August 2020 for a number of issues, including reference to a lumbosacral spine CT scan in respect of known low back changes and increasing pain and symptoms into the right leg.[17] On 21 January 2022 there is a record of an attendance of Dr Alison Marie Mooney containing reference to pain in the back on laying flat only on right side.[18] Further entries relied upon by the respondent are in respect of attendances on Dr Massie on 10, 12 and 18 January 2023, in the last of which Ms Hill is recorded as experiencing pain increasing in her right leg since September, working at Kmart repetitively lifting and bending.[19]
The respondent submits that the problem faced by the applicant is that there is no reference to paddleboarding in any of the clinical notes above referred to, in a period when she was not at work. On the other hand, the respondent points to an activity that could be causative of the condition in her back at that time.
The respondent notes the report of Dr Damodaran dated 31 March 2023 addressed to Westfarmers in which the doctor expresses the feeling that the applicant’s duties are a significant factor to her current symptoms, yet he has not been appraised of the physical activity in which the applicant engaged just prior to the exacerbation of her condition. It is only Dr Casikar who has anything to say about the applicant engaging in paddleboarding.[20] Dr Casikar had previously recorded the type of work in which the applicant engaged in his supplementary report dated 13 June 2023 when commenting on a report from
[20] Report of Dr Casikar dated 13 November 2023, AALD 18 January 2024 p 3.
[21] Reply p 18.
Dr Damodaran.[21] The respondent notes that Dr Casikar and Dr Damodaran differ on whether the applicant’s employment could have contributed to the exacerbation of the applicant’s back condition, but that Dr Damodaran did not have a complete history of the applicant’s activities leading up to her incapacity.
The respondent submits that the symptoms of which the applicant complained from September 2022 were inconsistent with the paddleboarding in which she engaged in
January 2023. There was an intervening event in January 2023 which caused the applicant to go off work.

Pre-injury average weekly earnings

The respondent does not accept the PIAWE of $999.48 now claimed by the applicant in her wages schedule dated 19 December 2024, but does accept the figure of $703.18 claimed in the ARD. The respondent submits that there is no evidence put forward by the applicant to support the figure of $999.48, and that it has been hampered in its calculation of the PIAWE for the two week period of incapacity for work claimed by the applicant between 7 and
21 July 2023 by the late compliance with a Direction for Production - Order dated
15 November 2023, issued on the Department of Communities and Justice (DCJ) in respect of the applicant’s concurrent employment, and issued following the preliminary conference in the proceedings on 15 November 2023.
The respondent notes that the DCJ was late in complying with the Direction for Production Order issued following the preliminary conference in the proceedings on 15 November 2023.
In response to this submission the Commission notes that the DCJ did not comply with the Order until on or about 19 December 2023. This resulted in the lodgement with the Commission of an Amended Directions for Production - Order dated 6 December 2023 which does not appear to have been issued, and the lodgement with, and issue by the Commission, of a Further Amended Directions for Production - Order dated
20 December 2023.
It was for this reason that the parties reached the agreement for the issue of the directions referred to in [49] and [53] hereunder.
The respondent does not put in issue the applicant’s incapacity for work during the period
7 to 21 July 2023.

Applicant in response

In respect of the issue of the applicant’s PIAWE for the closed period, this was addressed by agreement between counsel for the parties at the arbitration hearing for the issue of the directions referred to hereunder at [53] providing for the lodgement and service of further wages schedules by the parties.
In respect of the paddleboarding incident relied upon by the respondent, the applicant submits that it is pure speculation on the part of the respondent as to the part, if any, that such activity played in any aggravation or exacerbation of her back condition. There is no evidence from the respondent as to what paddleboarding physically entails, no forensic evidence in respect of such activity, and no cross-examination of the applicant sought to highlight this issue. The applicant submits that the Commission should dismiss any reliance by the respondent on such activity.
The applicant submits that the applicant has a history of back complaints extending back to 2015, and that notwithstanding this, kept working. Throughout the period from 2003 to 2022 she was engaged in work involving heavy lifting, bending and twisting, leading up to the aggravation of her condition in September 2022.
In respect of the respondent’s submission on the failure of the applicant to mention the paddleboarding activity to doctors who treated or examined her, the applicant submits that there was no need to mention it because, as far as she was concerned, such activity was not causative of the condition in her back. Any such mention on her part would have been speculation only, and in any event it was not her function to explore any other possible cause of injury. There should be a finding by the Commission that Ms Hill has not actively engaged in any dishonest conduct in respect of her claim.

FINDINGS AND REASONS

Pre-injury average weekly earnings

At the conclusion of the arbitration hearing on 31 January 2024, the following directions were issued:
“1.     The applicant is to lodge and serve by 7 February 2024 a wages schedule and supporting documentation in respect of her claimed pre-injury average weekly earnings (PIAWE) for the period 7 July 2023 to 21 July 2023.
2.     The respondent is to lodge and serve by 14 February 2024 any wages schedule and supporting documents in response to the applicant’s claimed PIAWE for the period abovementioned on it which it seeks to rely.
3.     At the conclusion of the time allowed for submissions the dispute will be determined within the usual time frame from 14 February 2024.”
The wages schedules lodged in response to these directions are referred to above at [17(e) and (f)].
The applicant’s wages schedule dated 6 February 2024 is almost identical to the applicant’s wages schedule dated 19 December 2023. No supporting documentation is attached to either schedule. The only difference between the two documents is that in the schedule dated 19 December 2023 “Ability to earn/current weekly earnings” under “Post 2012 Wages” is “$0.00”, whereas in the schedule dated 6 February 2024 it is “$999.48”.
The respondent’s wages schedule dated 15 February 2024 similarly was not accompanied by any supporting documents. It shows under “Post 2012 Wages” PIAWE of $705.18, and under “Ability to earn/current weekly earnings” of $705.18, as opposed to a figure of $703.18 shown under each such heading in the Reply.
It is unfortunate that the parties did not attach supporting documentation to the wages schedules lodged in response to the directions issued at the conclusion of the arbitration hearing on 31 January 2024, such directions issued with the concurrence of counsel for both parties. Although the claim for weekly benefits is for a short period only, the parties could not agree on a figure. The response of the parties to the directions issued does not assist the Commission in the calculation of a PIAWE figure.
In her statement dated 1 June 2023 the applicant says at [10]:
“I presently work four days per week (30 hours) and receive a gross weekly pay of $703.50”
A figure of $703.18 appears in the ARD Form 2.
At [11] of the statement the applicant gives evidence of her alternative employment as follows:
“Since 2020, I have been employed in a casual, part-time capacity as a Youth Officer with the Department of Communities and Justice (DCJ) at the Baxter Juvenile Justice Centre every Friday, receiving a gross weekly pay of $338.25.”
There are no other documents attached to the ARD that I can locate, or to which my attention has been directed, that assist in calculation of PIAWE.
There are no documents attached to the Reply to which my attention has been directed that assist in calculation of PIAWE. There is nothing in the Desktop Investigation Report dated
28 June 2023, or in the applicant’s leave records, of relevance.
There are no attachments to the AALD 18 January 2023 that assist in determination of PIAWE.
The Further Amended Directions for Production - Order dated 20 December 2023 referred to above at [46] was issued at the request of the respondent. The Order directed the DCJ to produce:
(a) a position description relevant to the applicant’s employment, and
(b) the applicant’s complete personnel file.
The applicant was allowed first access to the documents produced.
The following note and order was included in the Further Amended Directions for Production – Order:
“2. Note the advice from the solicitor for the respondent dated 19 December 2023 that the abovementioned documents have now been produced by the Department of Communities and Justice.
3. The time for compliance with this order is extended to 19 December 2023.”
No material produced by the DCJ was lodged with the Commission.
The Commission is therefore left with the evidence of the applicant at [11] of her statement dated 1 June 2023 to assist in calculation of PIAWE. One solution would be simply to take an average of the two PIAWE figures put forward by the parties. However, that would not in my view be equitable, particularly to the applicant, having regard to her evidence of earnings in the alternative employment with the DCJ.
The applicant’s employment with the DCJ is casual, part-time, and there are no other details as to how much she worked in that employment during the 52 weeks preceding the date of injury, and what absences she may have had during that period. Details of earnings from the DCJ may have assisted in ascertaining this.
Clause 2 (1) and (2) of Sch 3 to the 1987 Act provide the following meaning of PIAWE:
“(1) Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
(2) Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period)”
Doing the best I can with the limited material available to me, and somewhat arbitrarily, I think that the applicant’s claimed weekly gross earnings from her employment with the DCJ should be discounted by 30% to arrive at a figure for her average earnings over the 52 week period prior to the date of injury in this employment.
Two thirds of $338.25 is $225.50, which when added to the applicant’s weekly earnings of $703.50 in her employment with the respondent, results in a figure of $929 per week. That is the figure that I will adopt as the applicant’s PIAWE for the period of her admitted incapacity from 7 to 21 July 2024.

Causation of injury to the lumbar spine

The matters of “common ground” between the applicant and the respondent are set out in [20] above. There is no issue as to the nature and duration of the heavy work in which the applicant was involved up until December 2022 before she went on leave over the Christmas break, nor is there any issue as to the previous back injury she suffered in 2018 which was accepted by the respondent. Ms Hill returned to work after the claim in respect thereof was “closed”. She continued to do the heavy work that she had been doing prior to that injury.
Ms Hill gives evidence that in September 2022 while performing her usual duties she noticed constant pain had returned in her back and had begun to travel down her right leg. She says that when the pain became noticeable to her colleagues her manager, Mandy, saw her limping and asked her if she was OK. The applicant acknowledges that she did not officially report the injury as she felt that she needed to “soldier on and keep working with a hope that the pain would go away.” During the peak period of November and December 2022, she was required to work harder and faster. That increase in the work load during those months leading up to Christmas is not put in issue by the respondent. The applicant’s attitude to work is in my view consistent with a conscientious work ethic she displayed throughout the course of her employment by the respondent.
Mandy Todd has made a short statement dated 11 July 2023 in which she says:
“2. I have no recollection of any conversation with Katherine Hill regarding an injury sustained at work (Kmart Bateau Bay) September 2022.
3. The first I was aware of the injury was when Katherine Hill provided myself a Workers compensation doctor's certificate in January 2023 a week prior to Katherine returning from holidays.”
Ms Todd in that statement does not describe her role or position with the respondent, and
Ms Hill describes Ms Todd as her manager. Although no further details of the working arrangements at the store where these two persons were employed or the size of the store are in evidence, I accept that Ms Todd as manager would be responsible for a number of other employees, and that it would have been a busy time of the year for staff. I accept that Ms Todd may have had difficulty in recollecting the conversation which Ms Hill claims to have had with her. The applicant submits that does mean that it did not occur, or that it was invented by the applicant and that she has lied about it. I accept this submission.
When one looks at precisely what Ms Todd says in [2] of her statement, she has no recollection of any conversation with the applicant “…regarding an injury sustained at work (Kmart Bateau Bay) September 2022.” The applicant says that when the pain became noticeable to her colleagues, Mandy saw her limping and asked if she was OK.
The applicant’s response to this query, if any, is not recorded in her statement, nor is there any evidence from colleagues of them noticing pain being experienced by the applicant. The applicant did not report the injury at that time.
There is however in evidence a “Health and Safety Incident Report” (emphasis in original).[22] It was entered on 1 February 2023 at 4:52:58pm recording a date/time of incident of
18 January 2023 at 9:00am and date/time reported of 18 January 2023 10:00am. Christie Hughes is entered on the report as the role of the person, and full name of person, entering (the) incident report. The description of incident in the report is:
“Team member came in whilst on holidays to tell management that their back was sore and that a doctor had related it to a previous 2018 work injury.”
Additional comments in the report are:
“Team member could not give specific time of injury recurrence however told manager had had conversation in September 2022 with a separate manager. Team member stated that in September manager offered to report it but team member declined and stated that it was their non work related sciatica flaring up.”
[22] Reply p 4.
If the separate manager referred to in the additional comments is Mandy Todd, that is some evidence, admittedly given by the applicant, to support her assertion that she did have a conversation with Mandy Todd in September 2022.
The clinical notes of the applicant’s treating general practitioner are in evidence, and the records of the applicant’s attendances on Dr Massie on 10, 12, and 18 January 2023 are of assistance. Those attendances are noted at [27] and [28] above.
The history recorded by Dr Massie on 10 January 2023 is:
“Pain in R SI joint since September
Lifted at work
Has not put in a claim
Pain onto R calf Radicular pain
Catches some time
Pain on walking
No treatment
Low back injury
Reason for visit
Neuropathic pain”
“Actions:” included a request for an MRI scan of the lumbar spine.
On 12 January 2023 Dr Massie reviewed the applicant’s pain, reviewed the scan, noted foraminal stenosis at L4/5, the need for physio, and “cort injection”.
On 18 January 2023 Dr Massie records as the “Reason for visit:” and “Actions:”
“Sciatica
Pain ++ R leg
Has been coming on steadilly since september
Works in Kmart and repetitive lifting and bending
Pain realy bad over Xmas when working harder
did DW supervisor
likely to be significantly impacted by work
arrange inj in nerve impingement area L4/5
Actions:
Imaging request printed to I-MED Radiology: CT Scan - Lumbar spine. (Guided injection to severe cannal stenosis atL4/5)
Letter printed.
Letter written re. NSW Certificate of capacity/fitness.”
These entries were made after the applicant was photographed on a paddleboard on
3 January 2023. The applicant concedes that there is no reference to this activity in the clinical notes. This is because, according to her, she was still able to engage in this activity with the assistance of pain killers, it was an activity of short duration, that it was not stand up paddleboarding, that it must be considered against a background of an earlier back injury in 2018 and a long period of strenuous work for the respondent, and that she did not connect any such activity with her back pain. The photographic evidence is considered hereunder.
The applicant’s credibility is not in issue. I find that the applicant’s evidence is reliable, and that, having regard to the evidence I have summarised above, that she did engage in conversation with Ms Todd in September 2022 about her back. Although the description of the incident and additional comments in the Health and Safety Incident Report are hearsay, when considered along with the other relevant material, there is sufficient evidence to support this finding. This finding does not mean that there should be an adverse finding in respect of the evidence on Ms Todd. For the reasons referred to above in respect of her position with the respondent, her responsibilities as a manager, the lapse of time since September 2022 until the date of her statement, and from November 2022 onwards the busy time of year leading up to Christmas, I think that she simply cannot recall any conversation with Ms Hill in September 2022 about her back.

The photographic evidence

The principal photographic evidence relied upon by the respondent to submit that there was a cause other than the applicant’s work with the respondent that was responsible for the condition in her back that caused her to seek medical attention from Dr Massie in January is a photo taken at 1.14pm om 3 January 2023.[23] This depicts the applicant kneeling on a paddleboard with the paddle in her left hand and looking back over her right shoulder towards the camera, making a gesture with the middle finger of her right hand. The water around the paddleboard appears calm.
[23] Reply p 3.
There are other photos of the applicant which form part of the Desktop Investigation Report dated 28 June 2023.[24] From p26 to p28 of the Reply there are photos of the applicant in what appear to be holiday, leisure time poses sourced from a Facebook Profile. The principal photo is one of the applicant sitting on a beach in a bathing costume, wearing sunglasses, with her right elbow on the right knee, looking at the camera and making a gesture with the right middle finger similar to the gesture depicted of the applicant on the paddleboard. They are holiday photos, and the applicant acknowledges them. The most vigorous activity that can be inferred from all of the photos is that of the applicant sitting on a paddleboard.
[24] Reply p 20.

In my view, accepting that Ms Hill had been experiencing pain in her back from about September 2022 onwards until she went on leave at Christmas time, and her evidence in respect of the paddleboard activity, I do not see inconsistency between the back symptoms of which the applicant complained from September 2022 and the activity, or lack thereof, depicted in the photos. I do not draw any inference adverse to the applicant from the photographic evidence.
The applicant did not mention paddleboard activity to either Dr Massie of Dr Damodaran. Again, accepting that she had been experiencing pain in her back from September 2022 onwards against a background of a previous 2018 back injury accepted by the respondent, and engaging in continuing heavy work thereafter, I do not think it unreasonable that Ms Hill did not mention the leisure time paddleboard activity, such as it was, to her treating doctors.
There is mention of paddleboard activity in the report of independent medical examiner
Dr Hopcroft dated 30 August 2023.[25] Under “Hobbies and Pastimes” on p 4 of the report
Dr Hopcroft records:
“She enjoys paddle-boarding and fishing in the river but has not returned to that activity since her back pain problem. She has purchased herself an adjustable bed to allow her some assistance in flexing to get out of bed each day.”
[25] ARD p 30.
That history may not be strictly correct when one looks at the photo of the applicant sitting on a paddleboard on 3 January 2023, but may not be regarded as incorrect having regard the level of activity in paddleboarding in which Ms Hill engaged before the increase in her symptoms prior to or on 18 January 2023 prevented more active engagement. The applicant says at [18] of her statement dated 1 June 2023 that one morning she was unable to get out of bed unassisted, and visited Dr Massie on 18 January 2023. The clinical note of Dr Massie dated 18 January 2023 referred to above at [82] refers to complaint of sciatica and increasing pain in the right leg.
The photographic evidence, such as it is, does not cause me to find that any paddleboarding activity in which the applicant engaged in early January 2023 was causative of the condition in her lumbar spine, or aggravated the previous condition in the lumbar spine originally injured in 2018.
The respondent submits that entries in the clinical notes of the practice of which Dr Massie is a member are consistent with the opinion of Dr Casikar that the primary causation of the condition in the applicant’s lumbar spine is natural progression of the degenerative disease of the lumbar spine. The entries in the clinical notes referred to by the respondent are referred to above at [39] – [40] above. That may be one explanation for the attendances on the general practitioner. Another may be that the entries are consistent with aggravation or exacerbation of the back condition caused by the heavy nature of the applicant’s work, notwithstanding that there is no mention of this causative factor in the clinical notes.
In referring to the clinical notes of the treating practitioner, I am aware of the caution which must be exercised when relying on clinical notes in evidence in proceedings. In Nominal Defendant v Clancy[26] Santow JA noted that:
“…clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor [or a medico-legal report] is likely to have been written with more deliberate consideration than rough notes.”
In Davis v Council of the City of Wagga Wagga,[27] Mason P observed, (Beazley and Tobias JJA agreeing) that:
“experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury”.
[26] [2007] NSWCA 349 per Santow JA at [54]-[55].
[27] [2004] NSWCA 34.
Notwithstanding the cautionary note sounded in these observations, the entries in the clinical notes set out at [79] - [82] above, when considered along with the other evidence to which reference has been made, are in my view consistent with the case relied upon by the applicant that her back injury was causally related to the nature of her work with the respondent.

The medical evidence

Dr Damodaran

Dr Massie referred the applicant to Dr Damodaran, neurosurgeon, on 9 February 2023.[28] He said:
“Thank you for seeing Katherine Hill for review of her severe R sided sciatica. I have tried a guided cort inj but it has not worked. She is in severe pain and it has been 5 months since it started coming on slowly.
Her MRI shows canal stenosis and nerve impingement. She has been working in a heavy recurrent lifting environment for 21 years.”
[28] ARD p 197.
Dr Damodaran initially saw the applicant on 6 March 2023 presenting with right sided L5/S1 radiculopathy due to severe canal stenosis.[29] He noted the history of the applicant’s symptoms and extensive treatment that the applicant had undergone, and that:
“She has had multiple injuries the first injury of which was in 2018 which was treated with physiotherapy. Since then she has had work-related issues related to heavy lifting, bending, twisting and repetition at work. She is otherwise healthy with no other significant past medical history.”
[29] See report to Dr Massie dated 7 March 2023, ARD p 50.
Dr Damodaran noted that physical examination opinion was limited by pain, with no focal lower limb weakness. He expressed his opinion as follows:
“Katherine has failed conservative management and would benefit from an L3/4, L4/5 and L5/S1 lumbar decompression. I have discussed surgery in great detail today and will seek approval from her case manager to proceed with the surgery.”
Dr Damodaran provided a report to the case manager of Westfarmers, the scheme agent for the respondent, dated 31 March 2023 in which he says that the findings on the MRI and the symptoms such as lumbar canal stenosis can be related to degenerative conditions, and:
“Repetition of work such as lifting, bending, twisting and repetition of these types of activities can lead to acceleration of this degenerative process. Also this type of work can also lead to exacerbation of any underlying degenerative disorder. Hence the occupation is a significant contributing factor to her diagnosis.”
The respondent then issued a s 78 notice dated 4 April 2023 disputing liability for the cost of surgery and advising of an appointment for the applicant to be examined by Dr Casikar on
[30] ARD p 8.
5 April 2023.[30]

Dr Casikar

Dr Casikar independently medically examined the applicant on 5 April 2023 and produced his report dated 20 April 2023. In the introduction Dr Casikar noted the Ms Hill had been working for the Kmart organisation for 21 years, and that initially was working in the online department, but because of her present complaints was working in the fitting rooms. He recorded a history that the date of injury was recorded as 23 September 2022, and that
Ms Hill indicated that this was a gradual onset, without recollection of any specific work-related incident. Dr Casikar noted that in 2018 the applicant developed back pain, had treatment from her family physician, the outcome of which was good. He also noted that the applicant recently developed leg symptoms, but the back pain at the moment was not her major complaint. Dr Casikar concluded his history with:
“Before Christmas, she went on leave until the end of January. On 18 January, when she was on leave, she could not get out of bed because of back pain. he consulted her family physician Dr Massie who arranged for an MRI examination and advised her to take Lyrica. She had a cortisone injection however this did not help. She continues to work at a different location.
She has consulted Dr Damodaran who has suggested that requires spinal canal decompression. He has not suggested any fusion.”
Dr Casikar referred to the MRI investigation report referred to in Dr Damodaran’s report dated 7 March 2023. His diagnosis was “Constitutional degenerative disease of the lumbar spine. Natural progression”.
In his opinion Dr Casikar stated that Ms Hill appears to have a significant degenerative disease of the lumbar spine which is a genetically determined problem. “Her symptoms have been progressive. There have been no specific work-related injuries.” (emphasis added) The doctor stated that the surgery suggested by Dr Damodaran is appropriate for the medical condition he found, verifiable neurological symptoms related to her lumbar canal stenosis at L3/4, L5 and S1. Dr Casikar said:
“However, I would find it extremely difficult to support that the surgery is
related to any work-related injury because I do not see any suggestion that Ms Hill had a work-related injury. The nature of her employment [sic, injury?] cannot be considered as work-related – there has been a progressive aggravation.”
When asked as to the mechanism of injury, Dr Casikar said:
“There is no mechanism of injury because Ms Hill clearly clarified that there was no specific incident – this was a gradual onset and therefore the cause of her complaints is mainly due to progressive degenerative disease.”
Later in the report the doctor says that the surgery suggested by Dr Damodaran is necessary to address the applicant’s medical condition, and not due to any workplace injury.
Dr Casikar supplied a supplementary report dated 13 November 2023 after he had received from the respondent’s solicitor documentation, which included the various screenshots of the worker’s social media including the Facebook post on 3 January 2023. In answer to three specific questions put to him he said:
“1.     The material supplied make me conclude there is a significant inconsistency between the worker’s reported symptoms and functional incapacity.
2.      Based on the self reported symptomatology commencing in September 2023, I would not have expected her to be able to participate in paddle boarding as depicted in the image in January 2023.
3.     I am not sure whether the paddle boarding activities in January 2023 were the main contributing factors to the worsening lower back symptoms. I believe that Ms Katherine Hill’s reported symptoms are inconsistent with the documents you provided by you.”

Dr Hopcroft

Dr Hopcroft independently medically examined the applicant on 30 August 2023 and produced a report of that date, referred to above at [12]. He recorded a detailed history of the present injury, describing in detail the duties involved in the applicant’s work with the respondent from 2004. The nature of those duties is not in issue, so they will not be repeated in full. Suffice to say that they were heavy and repetitive, involving bending, twisting, lifting and carrying stock items, pushing H-cages around the store and packing them as she went, packing customer orders from the H-cage, and moving and packing large furniture items such as microwave ovens, bookcases and stools.
Dr Hopcroft notes the history of significant pain that the applicant suffered in her lumbar spine in 2018 lifting and carrying heavy items. He recorded that the applicant informed of an injury to her back in September 2022 with no particular strain injury that she could recall, but having undertaken heavy manual work over the week up until that time. The subsequent history recorded is not controversial and accords with what the applicant describes in other evidence before the Commission. The report of the MRI scan of the lumbar spine and sacroiliac joints dated 11 January 2023 is set out in full in the report. The subsequent treatment is recorded, including the referral to Dr Damodaran and independent medical examination carried out by Dr Casikar on 20 April 2023. Medical history and past history are recorded, and as noted above at [82], that Ms Hill had not returned to the enjoyable activities of paddle boarding and fishing in the river in which she had engaged.
Dr Hopcroft says under Diagnosis, Opinion and Prognosis that the applicant is suffering from significant post-traumatic changes to the lower three lumbar segments and believes that it is due to Ms Hill’s dedicated work ethic and her attempts to work through her back pain problems dating from 2018 that have seen a significant deterioration in her lumbar spine pathology with significant and chronic right-sided sciatic syndrome. He believes it more probable that not that the nature of the conditions of the applicant’s employment at the Kmart outlet has aggravated, accelerated and caused Ms Hill’s lumbar spine pathology to deteriorate and induce a refractory right-sided sciatic syndrome. He also believes that the treatment proposed by Dr Damodaran is one of several which is both reasonable and necessary, perhaps with localised laminectomy, discectomy and foraminotomy surgery at the L4/5 level where he found objective decrease in the right knee jerk on repeated examination. That may be a smaller neurosurgical step.

Discussion

In the s 78 notice dated 13 July 2023 the respondent gives at [1] as one of the “Reasons for disputing liability” its non-agreement that the applicant’s injury arose out of or in the course of her employment, and to which employment was the main contributing factor to the injury as required by ss 4 and 9A of the 1987 Act. The reference to s 9A is otiose. For the applicant to succeed on the issue of causation of injury, she must prove that her employment with the respondent was the main contributing factor to her injury.
This acknowledged at the foot of the same page of the s 78 notice where it is said:
“In order for your low back injury to be a compensable injury under the 1987 Act, your employment needs to be the main contributing factor to the injury or to the aggravation, acceleration, deterioration and exacerbation of the injury. Both Dr Damodaran and Dr Casikar did not support this.”
Dr Damodaran states in his report dated 31 March 2023 to Westfarmers that the applicant’s occupation is a significant contributing factor to her diagnosis (emphasis added). Whilst it cannot be expected of doctors to use precise terms in the workers compensation legislation when expressing an opinion on causation of injury, such a comment is helpful. It may be used to show compliance with s 9A of the 1987 Act, which requires a worker to prove that his or her employment was a substantial contributing factor to injury. It is certainly helpful in determining if treatment is reasonably necessary as a result of the injury pursuant to s 60 of the 1987 Act.
As noted by Deputy President Bill Roche in Murphy v Allity Management Services Pty Ltd[31] at [57], a condition can have multiple causes, and a worker seeking compensation for medical treatment does not have to show the work injury to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the Act.
[31] [2015] NSWWCCPD 49 (Murphy).
At [58] in Murphy Roche DP said of the worker in that case:
“Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary “as a result of” the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NWSWCCPD 18 at [40]-[55]. That is, she has to establish that the injury materially contributed to the need for surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716)”
In this case the respondent concedes that the surgical treatment proposed by Dr Damodaran is required to address the applicant’s back condition, but that it is not due to any workplace injury. The applicant must therefore prove on the balance of probabilities that she did suffer injury, in the form of aggravation, acceleration, exacerbation or deterioration of the disease condition in her back, a degenerative condition in the lumbar spine, but only if the employment was the main contributing factor to the aggravation etc of the disease.
For the reasons outlined in [85] – [91] above, I was not satisfied that any paddleboarding activity in which the applicant engaged in early January 2023 was causative of the condition in her lumbar spine, or aggravated the previous condition in the lumbar spine originally injured in 2018.
I do not accept the opinion of Dr Casikar that Ms Hill did not suffer injury to her back arising out of or in the course of her employment. In my view, she did aggravate and/or exacerbate the degenerative condition in her lumbar spine as a result of the undisputed heavy, arduous and repetitive nature of her work over the course of her employment with the respondent.
Dr Casikar premises his opinion on the basis that Ms Hill described no mechanism of injury, and no specific incident, but a gradual onset of symptoms in September 2022. He therefore says that the cause of her complaints is mainly due to progressive degenerative disease. The applicant presents her case, not on the basis of a specific incident, but on the basis of repeated trauma to her spine as a result of the heavy, arduous and repetitive work in which she was engaged over the course of her employment with the respondent. This finding is in accordance with the opinions of Dr Damodaran and Dr Hopcroft which I accept.
In respect of the date of injury, 18 January 2023, this appears to have been selected on the basis of the requirement in s 16 (1)(a)(i) of the 1987 Act, which relevantly provides that:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity,…”
The date 18 January 2023 was when the applicant consulted Dr Massie because she was unable to get out of bed one morning. She was clearly incapacitated for work on that day.
Dr Casikar in his report dated 20 April 2023 makes reference to a recorded date of injury of 23 September 2023, but I was not taken to any evidence in respect of such date. The respondent in setting out the issues at the commencement of the hearing on
31 January 2024 did make reference to an issue with the date of injury, but did not develop any argument in respect thereof. The date of injury of 18 January 2023 is referred to in the two s 78 notices issued by the respondent on 4 April 2023 and 13 July 2023.
I find that 18 January 2023 is the correct deemed date of injury for the purpose of the applicant’s claim.

Main contributing factor

In AV v AW[32] Deputy President Michael Snell said at [66]:
“I have previously expressed the view that the test of ‘main contributing factor’, inserted into the definition of ‘injury’ in s 4(b) by the 2012 amendments, is more stringent than the test applicable pursuant to s 4(b) in its previous form, which was subject to s 9A of the 1987 Act. There may be more than one ‘substantial contributing factor’. Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors.’ (emphasis in original). On the other hand, the requirement in s 4(b) inserted by the 2012 amendments, that employment be ‘the main contributing factor’ (emphasis added) permits the existence of only one such factor. The requirement of ‘the main contributing factor’ involves a more stringent connection with the employment than the requirement of a ‘a substantial contributing factor’ that applied to ‘disease’ injuries prior to the 2012 amendments.”
[32] [2020] NSWWCCPD 9.
I have found that any paddleboarding activity in which the applicant engaged played no part in causation of the injury to the lumbar spine on which she relies in presenting her case to the Commission. There is no other incident or circumstance relied on by the respondent to suggest that the applicant’s back was injured by anything other the work in which she was engaged for the respondent.

Having regard to my acceptance of the opinions of Dr Damodaran and Dr Hopcroft, and the applicant’s undisputed evidence of the heavy nature of her work for the respondent, I find that the applicant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease condition in her back, a degenerative condition in the lumbar spine.

Reasonable necessity for surgery

The respondent does not dispute that the applicant requires the surgery proposed by
Dr Damodaran on her lumbar spine. Therefore no issue is taken with the matters listed by Roche DP at [88] in Diab v NRMA Insurance Ltd[33] as being relevant according to the criteria of reasonableness as including, but not necessarily limited to the matters noted by Burke CCJ at point (5) in Rose v Health Commission (NSW),[34] namely:
(a)    the appropriateness of the particular treatment;
(b)    the availability of alternative treatment, and its potential effectiveness;
(c)    the cost of the treatment;
(d)    the actual or potential effectiveness of the treatment, and
(e)    the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[33] [2014] NSWWCCPD 72.
[34] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
I find that the surgery proposed by Dr Damodaran in his report dated 7 March 2023 is reasonably necessary as a result of the injury that the applicant is deemed to have suffered on 18 January 2023 arising out of or in the course of her employment with the respondent, which employment was the main contributing factor to such injury.

SUMMARY

The applicant sustained injury to her lumbar spine arising out of or in the course of her employment with the respondent deemed to have occurred on 18 January 2023.
The applicant’s employment was the main contributing factor to such injury.
The surgery proposed by Dr Damodaran in his report dated 7 March 2023 is reasonably necessary as a result of the injury.
The respondent is to pay for the costs of and incidental to such surgery pursuant to s 60 of the 1987 Act.
The applicant’s PIAWE is $929.
The respondent is to pay the applicant $929 per week from 7 July 2023 to 21 July 2023.

[2024] NSWPIC 71

20 February 2024