Howard v ABB Australia Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Howard v ABB Australia Pty Limited [2022] NSWPIC 331
APPLICANT:	Carl Howard
RESPONDENT:	ABB Australia Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	28 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments; whether aggravation to pre-existing disc disease had ceased; Held – worker continues to suffer the effects of aggravation of disc disease; worker had no current work capacity; ordered that weekly payments be reinstated.
DETERMINATIONS MADE:	1. Amend the Application to Resolve a Dispute so that the period of the weekly compensation claimed commences on 19 November 2021. 2. Respondent to reinstate the applicant’s weekly benefits paid pursuant to s 37 of the Workers Compensation Act 1987 from 19 November 2021 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

On 11 April 2022 Carl Howard (Mr Howard) lodged an Application to Resolve a Dispute (ARD) in the Personal Injuries Commission (the Commission). Mr Howard sustained an injury to his lumbar spine on 20 April 2021 in the course of his employment as a business development manager by ABB Australia Pty Ltd (the respondent) when his motor vehicle, which was stationary, was hit in the rear by another motor vehicle.
The respondent was insured at the relevant time by Employers Mutual NSW Limited (the insurer).
Mr Howard claimed weekly benefits in respect of the injury to his back. The insurer issued a s 78 Notice dated 27 October 2021 disputing Mr Howard’s entitlement to weekly compensation for the injury on 20 April 2021 on the basis that he did not have total or partial incapacity for work resulting from an injury as required by s 33 of the Workers Compensation Act1987 (the 1987 Act).
The insurer issued a Review Notice dated 16 November 2021 maintaining the decision to dispute liability on the basis that Mr Howard did not have total or partial incapacity for work resulting from an injury.
The insurer issued a further Review Notice dated 8 March 2022 and declined ongoing liability noting that Associate Professor Paul Miniter found that there was no evidence of ongoing symptoms from the accident and therefore that the work-related aggravation from the whiplash injury had ceased.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration hearing on 20 June 2022 which was conducted by telephone. Mr Howard was represented by Mr James McEnaney who was instructed by Mr Andrew Joy of Law Partners Personal Injury Lawyers. The respondent was represented by Mr Tom Grimes who was instructed by Ms Jennifer Doyle of Hicksons Partners. Mr Carlin Brunner-Evan from the insurer was also present.
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.
Both parties made oral submissions at the hearing on 20 June 2022. Those submissions were recorded and I do not propose to repeat them in detail.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Whether the effects of the work-related lumbar spine injury on 20 April 2021 had ceased?
(b) Whether Mr Howard had an incapacity resulting from the work injury on 20 April 2021 and, if so, what was his entitlement to compensation?

Matters previously notified as disputed

The matters above were notified as disputed in the s 78 Notice and Review Notices.

Matters not previously notified

An issue emerged in the hearing concerning pre-Injury average weekly earnings (PIAWE). In submissions, Mr Grimes stated that the insurer’s figure for PIAWE was $2,700 but stated that there was no evidence available to the respondent and insurer to support that figure. PIAWE was stated in both the ARD and Reply to be $2,248. However, the weekly amount in dispute in the ARD was stated to be $2,248. Mr Grimes maintained that if Mr Howard succeeded in his claim the s 37 payments should be 80% of $2,248. Mr McEnaney argued that PIAWE had not been disputed and I did not have jurisdiction to determine any issue relating to PIAWE. Mr McEnaney sought an order that payments under s 37 of the 1987 Act be reinstated.
No notice was given by the respondent of any dispute in relation to PIAWE. Mr Grimes did not seek leave to argue what the PIAWE was. In those circumstances I propose to deal with the matter on the basis that there was no dispute in relation to PIAWE. If Mr Howard succeeds in proving his case and I find he has no capacity for work an order can be made to reinstate his weekly payments under s 37 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

FINDINGS AND REASONS

At the commenced of the arbitration, the parties agreed that the period of the weekly compensation claim in the ARD should be amended to commence on 19 November 2021.

Evidence of Mr Howard

In his statement dated 9 March 2022, Mr Howard said that he had completed a four year electrical apprenticeship in the UK in about 1979 and then completed a further two year extension course for his electrical apprenticeship in about 1985. Mr Howard moved to Australia in 1987 and in about 1990 completed a two year marketing course at Sydney University.
Mr Howard stated that prior to the accident on 20 April 2021 he was healthy, fit and highly capable of handling the physical demands of his employment. He said that he did not ever recall experiencing any pain or restrictions in his lower back prior to commencing employment with the respondent.
In the five years prior to the injury on 20 April 2021, Mr Howard stated that he had worked as a Territory Manager with All Round Supplies from May 2014 to August 2017, then as the NSW Business Development Manager with Tro Pacific from August 2017 to October 2018 and then as the NSW Business Development manager with Tex Onsite from about 2018 to November 2019. Mr Howard stated that in about November 2019 he commenced employment with the respondent as a Business Development Manager on a full-time basis working 40 hours a week with gross average weekly earnings of approximately $2,442.
Mr Howard stated that in his role with the respondent he was responsible for directing sales to major contractors for medium voltage switch gear, switch board and medium voltage transformers, meeting and consulting with clients and duties incidental to being a Business Development Manager.
Mr Howard stated that on 20 April 2021 he had been out to a site at Erskine Park and was returning to his home office when he was involved in a motor vehicle accident. He said that he was stationary on Minchin Drive, waiting to make a right-hand turn into a shopping centre, when he was suddenly rear ended at 60km/h. Mr Howard wrote:
“17. Immediately following the accident, I was in shock and was suffering from pain in the back of my neck and lower back. It felt as though someone had hit me in the lower back with a baseball….
18. Following my accident, I returned home where I experienced excruciating pain in my lower back and neck. I could barely sleep because of the sharp pain in my lower back and the intense headaches.”
Mr Howard said he consulted with his general practitioner (GP), Dr Stephen Chow on 21 April 2021. He told Dr Chow that he had been experiencing a sharp stabbing pain in his lower back following the accident and that he also had been suffering from pain and discomfort in his neck. Dr Chow advised him to rest and to take Panadeine Forte.
Mr Howard said that he returned to Dr Chow a week later and explained that the pain in his lower back had worsened since the last consultation and he was experiencing sharp pain and spasms in the lower back which were so unbearable that he was struggling to walk or stand for prolonged periods of times. Dr Chow referred Mr Howard for a CT scan of the lower back and in about May 2021 Mr Howard commenced hydrotherapy until NSW went into lockdown. Mr Howard said that the pain in his back was progressively becoming worse and he was seeing Dr Chow every fortnight.
On 4 July 2021 Mr Howard underwent an MRI scan on the lumbar spine and at about that time was referred to Jeffrey Yuen, physiotherapist for treatment. On 26 July 2021, Mr Howard had a guided facet joint injection to the lower back and then a further two injections at a Medical Practice in Mt Druitt. Mr Howard said that he did not find these injections to be helpful in alleviating his pain symptoms.
Mr Howard stated that throughout the following few months, he continued to work on his lower back rehabilitation. He said that due to the NSW lockdown, he was completing gentle exercises and stretches at home and also attempted to self-manage his injuries by taking pain medication and resting. Mr Howard stated that he continued to experience severe spasm in his lower back and was struggling to sleep at night as the pain in his lower back would wake him up.
On 5 October 2021, Mr Howard consulted with neurosurgeon, Dr Gemma Olsson at Westmead. He told Dr Olsson that he had been dealing with debilitating lower back pain that was impacting every aspect of his life. He said he was unable to do simple tasks such as washing the dishes or bending down to get food out of the oven or freezer, without worsening the pain in his lower back. He also informed Dr Olsson that he was struggling with feelings of helplessness and hopelessness and that he was devasted at the trajectory of his life. Dr Olsson recommended that he continue to treat his lower back conservatively with physiotherapy and pain medication.
Mr Howard said that in about October 2021 following the ending of the NSW lockdown, he recommenced hydrotherapy but was unable to recommence physiotherapy sessions as he could not afford the cost of the treatment and the insurer ceased paying for his medical treatment.
Mr Howard stated that during November and December 2021, he continued to struggle with getting in and out of bed as the bending and twisting movements severely worsened the pain in his lower back. He said that he had also been walking with a limp, to alleviate the pressure in his lower back and became reliant on his son and wife to help around the house.
Mr Howard stated that throughout 2022, he had continued to suffer from extremely severe pain in his lower back. He said that he experienced spasms in his lower back which were severe and regular. Mr Howard stated that he had become more confined to his home as leaving the house has become too difficult. He said that he also found that the pain in his lower back worsened when walking, standing or sitting for extended periods of time.
Mr Howard said that his treatment included consulting with his GP on approximately a monthly basis. He said that he also attempted to self-manage his symptoms by doing at home exercises and stretches, hydrotherapy, taking pain medication and rest.
Mr Howard stated that his role as an electrical sale engineer and manager required him to drive for five hours a day, attend client offices and building sites. He said that due to the constant pain in his lower back, he could not drive for long periods of time. He said that he was also required to continually get in and out of his car which severely worsened the pain in his lower back. Mr Howard stated that some building sites required him to walk upstairs and to go into confined spaces which caused a sharp pain in his lower back. He wrote:
“As such, I would be physically incapable of carrying out the role as a Sale Engineer and Representative without severely worsening the pain in my lower back.
I would also struggle in other forms of employment due to my restrictions. This is because I continue to suffer from persistent sharp pain and muscle spasms in my lower back. I cannot stand or sit for prolonged periods of time as it places strain on my lower back. I am unable to walk up stairs and get in and out of cars without experiencing a sharp pain in my lower back. Driving has become very difficult for me due to the constant twisting to check blind spots.”
Mr Howard stated that prior to the accident he enjoyed swimming 5km a day and doing home improvements. He said that he could no longer undertake those activities due to the sharp pain and spasms in his back. Mr Howard said that since the accident he was severely limited in doing any gardening work and the pain in his lower back was exacerbated by mowing the lawn. He said that he struggled to perform domestic chores such as cooking. Mr Howard stated that he remained independent in his self-care but struggled with tying his shoes and putting on his pants and socks.

Medical evidence

In a report of an MRI Lumbar Spine Scan dated 4 July 2021, Dr Kelvin Ho, Radiologist, wrote:
“Clinical History: MVA 21/4, hit from behind. Facet arthropathy on CT.
…
Comment:
1.Multilevel spondylotic changes, most pronounced at L4/5 and L5/S1.
2.Severe bilateral L4/5 facet joint hypertrophy. There is oedema associated with the left facet joint which is presumably degenerative in nature.
3.L5/S1 retrolisthesis, broad-based disc bulge eccentric to the left and endplate bony lipping, with contact of descending left S1 nerve root. Moderate left foraminal stenosis with contact with the exiting left L5 nerve root.
4.Mild L4/5 and L5/S1 canal stenosis.”
In a report of a CT lumbosacral spine dated 3 May 2021, Dr Caitlin Kapoor, radiologist, wrote:
“Clinical Notes: No radiculopathy, whiplash injury.
…
Conclusion: 1. Degenerative changes, facet OA most marked at L4/5 and L5/S1.
2. Foraminal stenoses, disc osteophytosis with moderate focal significant bilateral L5/S1 foraminal stenoses.”
In a report dated 9 September 2021, Associate Professor Miniter, consultant orthopaedic surgeon, noted that he spent some time on the telephone with Mr Howard as he was unable to establish a videolink. Associate Professor Miniter noted that Mr Howard had not returned to work for one day since the episode in question and when he asked him why, he said that he had severe back pain and indeed had great difficulty even standing up. Associate Professor Miniter considered that the CT scan demonstrated no more than age-related change at the L4/5 and L5/S 1 levels and the MRI scan demonstrated similar pathology. Associate Professor Miniter noted that Mr Howard has had no nocturnal pain.
Associate Professor Miniter expressed the opinion that Mr Howard had a minor injury and was concerned that his treatment program has not been successful.
Associate Professor Miniter wrote:
“Ostensibly, based on the information that I have before me, I could see no reason for this man not to immediately return to work in some capacity. His ability to return to work should not be compromised by this minor episode. There is no other solution available to him except pain management and, as you would know, this is rarely successful in a situation such as this”.
Associate Professor Miniter expressed the view that work may have been a substantial contributing factor to aggravation of pre-existing lower back pathology, but there was no significant presenting factor that would explain his current presentation. He wrote: “In my opinion, his employment with ABB Australia could have been the main substantial contributing factor to his compensable condition in the initial stages of this matter. However, it is very hard to entertain the concept that this continues to this time”.
Associate Professor Miniter said that there seemed to be significant inconsistency at this stage and when he asked Mr Howard several times during the interview whether he felt he could return to work, he said that he was in agony and that he could not return to work in any capacity. Associate Professor Miniter wrote: “One raises the possibility of functional behaviour but then again, I have not had the opportunity to physically examine this man”.
Associate Professor Miniter.expressed the view that if there was aggravation of pre-existing pathology it would have finished by now.
In a supplementary report dated 6 October 2021, Associate Professor Miniter expressed the view that Mr Howard’s symptom complex was unrelated to the episode on 20 April 2021 and current incapacity was not the result of the compensable injury. Associate Professor Miniter wrote:
“There are no obvious contributing factors to this gentleman's condition except for his relatively poor physical condition and his apparently limited levels of motivation. In my letter I have referred to the fact that he is only exercising twice per week and that he stopped swimming and performing other activities that were his province prior to the episode. I am not able to determine why this is the case.
…
Based on my clinical assessment and the investigative findings, I regard him as immediately fit for pre-injury duties as a business development manager. I note that in fact he has lost his job, being made redundant in September.
…
I felt that there were significant features of voluntary exaggeration of the symptom complex and displaying abnormal illness behaviour. I believe it is not in this man's interest to be other than regarded as fit for his usual duties which is, after all, a job that does not require physical activity.”
In a report dated 5 October 2021, Dr Gemma Olsson, treating neurosurgeon, noted that Mr Howard was involved in a motor vehicle accident on 20 April 2021 when his car was rear ended whilst stationary. She noted that he immediately noticed neck pain and pain in his lower back which he described as somebody hitting him in the back with a baseball. Dr Olsson said that the whiplash injury associated with his neck pain disappeared over a few days, but Mr Howard consulted with Dr Chow in relation to the low back pain. She noted that Mr Howard had daily pain and he described this particularly with certain movements where the pain caught him very sharply on the left hand side in the paraspinal area and also with a more midline pain associated with the whole of the lumbar back which he described as a toothache which was present on waking and then present throughout the day, exacerbated by this intermittent sharp pain.
Dr Olsson noted that Mr Howard had trialled physiotherapy as well as analgesia. There had also been multiple attempts at facet joint injections, none of which have improved his situation. She noted that both his MRI and CT scan showed that he has some significant degenerative changes of his lower spine and particularly that he has bilateral multilevel facet joint hypertrophy as well as disc changes consistent with disc disease.
Dr Olsson wrote:
“I have explained to Carl that on the basis of his MRI scan, there are multiple possible pain generators and that I expect his accident has resulted in a flare up of one or many of these which has not been amenable to the treatments he has had thus far. I have explained it is not unusual for joint pain to persist for months and for there to be exacerbations of the pain during this process.
He examined well normally and while he had an antalgic gait was able to move relatively quickly from my waiting room to the office.
Overall, I feel that he has become used to his level of mobility and pain as it has worn through the months. He tells me that with the help of a physiotherapist, he has been able to return to the swimming pool which he enjoys very much but that a couple of episodes of swimming have exacerbated his pain. I wonder if possibly he has pushed his re-entry to the water a little bit hard.
For mine, thankfully there are no neurosurgically remediable lesions on the scan. He certainly has no evidence of nerve root impingement. He has no single level degenerative disease which would be amenable even to the most aggressive of neurosurgical treatments. As such, I have explained that the mainstay of his management will be conservative movement therapy associated with a plan for analgesia…
I also would recommend ongoing physiotherapy. He appears to be a very motivated man and I think he may benefit from care from for example an exercise physiologist while becoming stronger at the gym and I think it is likely this treatment will result in him being able to move without the current pain”.

In a report dated 10 October 2021 to the insurer, Dr Stephen Chow, GP, stated that Mr Howard had developed two psychiatric conditions since the accident on 20 April 2021, firstly, an Adjustment Disorder with Depressed mood and, secondly, Somatic symptoms and related Disorder which in his case related to chronic pain in his back, now six month post injury. Dr Chow wrote:
“Mr Howard has been suffering from chronic debilitating back pain affecting every aspect of his daily life including something simple as washing dishes. He has become depressed, feeling helpless and hopeless, having suicidal ideations, complete loss of interests, teary and profound loss of self esteem. There are many other factors that may influence Mr Howard's recovery such as helping him to lose weight (which reduces pressure on his back), easing of lock down which could see him returning to the pool for hydrotherapy, gaining access to psychotherapy (CBT) in improving mood and coping mechanisms and hopefully return to some form of gainful employment in a limited capacity as soon as possible.”
Dr Chow expressed the view that Mr Howard’s psychological conditions were attributable to the motor vehicle accident on 20 April 2021. Firstly, he noted that Mr Howard had no significant history of mood disorder in the past. Secondly, he noted that even though Mr Howard has been substantially overweight, which commonly causes back pain, he had no history of functionally significant back issues of note of any length and his persistent and current symptoms started only after the motor vehicle accident.
In a Centrelink Medical Certificate dated 17 November 2021, Dr Chow made a diagnosis of a lumbar spine injury with the date of onset being 20 April 2021 and certified Mr Howard as having been unfit for work and not able to do any other work for eight hours or more per week. A further Centrelink Medical Certificate was issued by Dr Chow on 17 February 2022 for the period 6 February 2022 to 6 May 2022 and certifying Mr Howard as unfit for work.
In a report dated 3 April 2022, Dr Chow noted he saw Mr Howard on 21 April 2021 when he told Dr Chow that he was involved in a motor vehicle accident on 20 April 2022. Mr Howard said he was hit from behind while waiting to make a turn. He told me his neck was stiff and his lower back was painful the night before and on the day of presentation he had a massive headache. His lower back remained sore with sitting and turning. Examination at the time showed irritability in his cervical and lumbar spine with limited movements and tightness. There was no detectable neurological deficit. Dr Chow said that Mr Howard was treated for Whiplash type of injury to his neck and lumbar spine with analgesia, resting, physiotherapy and hydrotherapy. With his symptoms persisting Mr Howard had a CT scan of his lumbar spine which showed essentially multilevel degeneration.
Dr Chow noted that despite intensive physiotherapy and daily hydrotherapy Mr Howard's lower back pain persisted and by July he had an MRI of his lumbar spine showing left L4/5 facet joint oedema, LS/S 1 retrolisthesis, left S 1 root contact. Mr Howard then proceeded to have CT guided injection of his left L4/5 facet joint and in September 2021 a left L5/S1 nerve root. Both injections gave him transient relief only and he continued to need regular Paracetamol and intermittent opioid for analgesia. Dr Chow noted that Mr Howard was increasingly frustrated by his inability to do most simple chores such as sweeping the yard and washing the dishes without aggravating his pain and had to stop halfway.
Dr Chow noted that by September 2021 Mr Howard began to exhibit symptoms of irritability, profound sense of uselessness, weepiness, loss of self esteem, self harm ideations and depressed mood. These symptoms were consistent with an Adjustment Disorder with depressed mood (Diagnostical and Statistical Manual of Mental Disorders, Fifty Edition (DSM 5)). He was commenced on Duloxetine 60mg daily and referred to seek psychotherapy with a psychologist. In October 2021 Mr Howard saw Dr Gemma Olsen, neurosurgeon, who recommended for him to continue with conservative treatment.
Dr Chow reported that to date Mr Howard continued to suffer lower back pain necessitating daily analgesia, hydrotherapy, Duloxetine and regular psychotherapy. Dr Chow stated that Mr Howard remained unfit for work. Dr Chow wrote:
“Mr Howard remain unfit for work with his ongoing symptoms permitting him to manage only some simple household chores (eg unable to do lawn mowing, vacuuming or laundry) and mentally fragile. He is due for a review in the next few weeks when we will be examining the possibility of suitable duties”.
Dr Chow concluded that Mr Howard's symptoms were consistent with the injuries he sustained in the motor accident and there was no indication that Mr Howard has been exaggerating his symptoms at all. Dr Chow said that he had known Mr Howard for 30 years and seen him more than 20 occasions since the accident and there had been no suggestion at all that his symptoms are not genuine. Dr Chow considered that his symptoms were completely consistent with the progression of his clinical course. Dr Chow wrote: “As I had stated above, Mr Howard has continued to struggle with most daily activities and requiring regular analgesia. He has maintain [sic] daily hydrotherapy. He is unfit for his pre-injury duties as a business development manager.”
In a report dated 1 November 2021, Mr Jeffrey Yuen, physiotherapist, noted that Mr Howard had been progressing slowly through physiotherapy and continued to remain diligent with his home exercise program. He reported that Mr Howard had recently engaged in weekly swimming sessions and has reported some reductions in symptoms however continued to report persisting pain with prolonged sitting and walking. He recommended a continuation of physiotherapy sessions.
In a report dated 21 February 2022, Dr Gehr, consultant orthopaedic surgeon, noted that he had examined Mr Howard in his rooms on 21 February 2022. Dr Gehr noted that prior to the accident on 20 April 2021, Mr Howard had no previous problems with cervical spine, thoracic spine, lumbar spine, upper extremities, or lower extremities.
Under Activities of Daily Living, Dr Gehr noted that Mr Howard reported problems with putting shoes and socks on, struggled now to do the cooking, could not now do maintenance of lawn and gardens, and was only able to drive short distances.
Dr Gehr noted that someone had driven into the back of Mr Howard’s stationary car at 60kph. He noted that Mr Howard had a seatbelt on, the air bags did not activate and his car was later repaired. Dr Gehr noted that an ambulance was not called but someone helped Mr Howard out of his car.
Dr Gehr reported that the cervical spine pain had resolved but Mr Howard had persisting lumbar spine pain with tingling pain over the left buttock. Mr Howard could sit for about 20 to 25 minutes and stand and walk for similar times. Mr Howard reported stiffness of his back. Dr Gehr noted that since January with resuming swimming, there has been some improvement.
On examination, Dr Gehr reported that Mr Howard was cooperative with no pain behaviour, no exaggerations and no embellishments. He noted Mr Howard sat in an uncomfortable position and walked with an unsteady gait and had difficulty standing on his toes or heels, inverting or everting. Dr Gehr reported that there was tenderness in the left paraspinal area, loss of lordosis, reduction of forward flexion by 50%, extension 0 degrees, left lateral flexion by 25%, and right lateral flexion was 0 degrees. He noted that guarding and dysmetria were present, straight leg raising in sitting position was 70 degrees left and right. Dr Gehr did not test in supine as Mr Howard was in too much discomfort. Dr Gehr noted that there was a negative nerve tension test, negative slump test, no motor or sensory changes lower limb and the deep tendon reflex was absent.
Dr Gehr wrote:
“This is a 61-year-old man, injured during the course of his work duties on 20/4/2021. He sustained an injury to his cervical spine described as whiplash injury, which had since resolved. He had been under the care of his GP and the neurosurgeon. He has also had persisting lumbar spine pain since the time of subject accident with pain and numbness of the left buttock. On examination today, I found evidence of guarding and dysmetria. He tells me that prior to subject accident, he never had back pain.
Diagnoses
1. Lumbar spine pain with guarding and dysmetria since the time of subject accident. No previous history of lumbar spine pain. He was able to work full time with very limited time off from work for sick leave prior to that. He tells me he had the least amount of sick leave in his industry.
2. Cervical spine whiplash-type injury – resolved.”
Dr Gehr was of the opinion that Mr Howard’s current condition was a direct result of the accident which occurred during the course of his employment. Dr Gehr noted that Mr Howard had no previous history of back pain. He expressed the view that whatever changes there were on the imaging of the lumbar spine most likely would have remained asymptomatic for at least for another 5, 10, or 15 years if it had not been for the subject accident.
Dr Gehr was requested to provide an opinion as to whether Mr Howard ought to be able to resume his pre-accident occupation and wrote:
“His normal work duties involve visiting client’s offices and work sites. This means five hours of travel per day. He is in and out of his car all day long going basically short distances around Sydney. At building sites, he has to go upstairs and occasionally he has to go into confined spaces at building sites. Building sites can be irregular terrain or walking on narrow planks. Ambulation on these building sites can be very difficult. He is not able to get back to his pre-accident occupation… I would agree with GP where he is completely unfit for work since November 2021.”
Dr Gehr was asked to comment on Associate Professor Miniter’s report and opinion that Mr Howard’s current symptoms were not associated with his workplace injury and that Mr Howard was exaggerating his symptoms. Dr Gehr wrote:
“With respect, I disagree with the report of Dr Miniter as I found no evidence of exaggeration with his presentation today. The client tells me that the assessment provided by Dr Miniter was conducted by phone. I had the advantage of a face-to-face examination which allows a more accurate overall assessment of the client and their presentation…
With respect, I disagree with Prof Miniter that’s he is fit for pre-injury duties. The level of symptoms reported makes it difficult if not impossible for him to get back to his preinjury duties as outlined in my answer to question nine.”

Issue 1 – capacity for work

The issue to be determined is whether Mr Howard has an incapacity resulting from the work injury on 20 April 2021. In considering this issue, I will firstly consider whether the effects of the work related lumbar spine injury on 20 April 2021 have ceased.
In the Review Notice dated 8 March 2022 the insurer declined ongoing liability based on Associate Professor Miniter’s finding that there was no evidence of ongoing symptoms from the accident and therefore that the work-related aggravation from the whiplash injury had ceased. The Notice also referred to Associate Professor Miniter’s having “observed significant features of voluntary exaggeration of your symptoms and abnormal illness behaviour.” The Notice continued:
“Whilst we note Dr Gehr’s view, Dr Chow diagnosed adjustment disorder and somatic symptoms related to chronic back pain which is consistent with A/Prof Miniter’s findings that there are psychological issues impacting your lumbar spine condition. In that regard we do not consider that it is clear that the cause of your ongoing lumbar spine pain is the subject motor vehicle accident. In that regard, we prefer the opinion of A/Prof Miniter that the effects of your work-related lumbar spine injury have ceased.”
It is a matter of some concern that this notice referred to observations of Associate Professor Miniter when in fact there was no examination in person or examination through videolink and the only contact between Mr Howard and Associate Professor Miniter was over the telephone. Clearly, there could be no observations made by Associate Professor Miniter in those circumstances and he could not have observed any “significant features of voluntary exaggeration of your symptoms and abnormal illness behaviour”.
Mr Howard gave evidence in his statement dated 9 March 2022 that prior to the accident on 20 April 2021 he was healthy, fit and highly capable of handling the physical demands of his employment with the respondent. He described his work duties as including driving up to five hours a day and visiting client offices and building sites where he was required to walk up stairs and go into confined spaces.
Mr Howard stated that on 20 April 2021 he had been out to a site at Erskine Park and was returning to his home office when he was involved in a motor vehicle accident. He said that he was stationary on Minchin Drive, waiting to make a right-hand turn into a shopping centre, when he was suddenly rear ended at 60km/h. He said that immediately following the accident, he was in shock and suffering from pain in the back of my neck and lower back. He said that following his accident, he returned home where he experienced excruciating pain in his lower back and could barely sleep because of the sharp pain in the lower back and the intense headaches. Mr Howard attended his general practitioner, Dr Stephen Chow on the next day, 21 April 2021, and was advised to rest and to take Panadeine Forte.
Mr Howard said that he returned to Dr Chow a week later and explained that the pain in his lower back had worsened since the last consultation and he was experiencing sharp pain and spasms in the lower back which were so unbearable that he was struggling to walk or stand for prolonged periods of times. Mr Howard was referred for a CT scan of the lower back and then commenced hydrotherapy until NSW went into lock down. Mr Howard said that the pain in his back was progressively becoming worse and he was seeing Dr Chow every fortnight.
On 4 July 2021 Mr Howard underwent an MRI scan on the lumbar spine and at about that time was referred to Jeffrey Yuen, physiotherapist for treatment. On 26 July 2021, Mr Howard had a guided facet joint injection to the lower back and then a further two injections which that he did not find to be helpful in alleviating his pain symptoms. Mr Howard stated that he continued to experience severe spasm in his lower back and was struggling to sleep at night as the pain in his lower back would wake him up.
On 5 October 2021, Mr Howard consulted with neurosurgeon, Dr Olsson and he told her that he had been dealing with debilitating lower back pain that was impacting every aspect of his life. Mr Howard said that in about October 2021 following the ending of the NSW lockdown, he recommenced hydrotherapy but was unable to recommence his physiotherapy sessions as he could not afford the cost of the treatment. During November and December 2021, Mr Howard said that he continued to struggle with getting in and out of bed as the bending and twisting movements severely worsened the pain in his lower back. He said that he had also been walking with a limp, to alleviate the pressure in my lower back. Mr Howard stated that throughout 2022, he had continued to suffer from extremely severe pain in his lower back. He said that he experienced spasm in his lower back which were severe and regular, and he had become more confined to his home as leaving the house has become too difficult. He said that he also found that the pain in his lower back worsened when walking, standing or sitting for extended periods of time.
Mr Howard said that he would also struggle in other form of employment due to his restrictions because he continued to suffer from persistent sharp pain and muscle spasms in his lower back and could not stand or sit for prolonged periods of time as it placed strain on his lower back. He said that he was unable to walk upstairs and get in and out of cars without experience a sharp pain in the lower back.
I accept Mr Howard’s evidence.
Dr Chow, on 10 October 2021, stated that Mr Howard had developed two psychiatric conditions since the accident on 20 April 2021, firstly, an Adjustment Disorder with Depressed mood and, secondly, Somatic symptoms and related Disorder which in his case related to chronic pain in his back, now six month post injury. Dr Chow stated that Mr Howard had been suffering from chronic debilitating back pain affecting every aspect of his daily life including something simple as washing dishes. He commented that there were many other factors that may influence Mr Howard's recovery such as helping him to lose weight (which reduces pressure on his back), easing of lock down which could see him returning to the pool for hydrotherapy, gaining access to psychotherapy (CBT) in improving mood and coping mechanisms and hopefully return to some form of gainful employment in a limited capacity as soon as possible.
Dr Chow expressed the view that Mr Howard’s psychological conditions were attributable to the motor vehicle accident on 20 April 2021 noting that Mr Howard had no significant history of mood disorder in the past. Dr Chow stated that Mr Howard had no history of functionally significant back issues of note of any length and his persistent and current symptoms started only after the motor vehicle accident.
In the Centrelink Medical Certificates dated 17 November 2021 and 17 February 2022, Dr Chow made a diagnosis of a lumbar spine injury with the date of onset being 20 April 2021 and certified Mr Howard as having been unfit for work and not able to do any other work for eight hours or more per week. Dr Chow certified Mr Howard as unfit for work until 6 May 2022.
In his most recent report of 3 April 2022, Dr Chow noted that he saw Mr Howard on 21 April 2021 a day after the motor vehicle accident on 20 April 2022. He reported that Mr Howard’s lower back remained sore with sitting and turning and examination showed irritability in his cervical and lumbar spine with limited movements and tightness. Dr Chow said that Mr Howard was treated for whiplash type of injury to his neck and lumbar spine with analgesia, resting, physiotherapy and hydrotherapy. Dr Chow stated that as symptoms persisted, Mr Howard had a CT scan of his lumbar spine which showed essentially multilevel degeneration. Dr Chow noted that despite intensive physiotherapy and daily hydrotherapy, Mr Howard's lower back pain persisted and by July he had an MRI of his lumbar spine showing left L4/5 facet joint oedema, LS/S 1 retrolisthesis, left S 1 root contact. Mr Howard then proceeded to have CT guided injection of his left L4/5 facet joint and in September 2021 the left L5/S1 nerve root but both injections gave him transient relief only. Dr Chow noted that Mr Howard was increasingly frustrated by his inability to do most simple chores such as sweeping the yard and washing the dishes without aggravating his pain and had to stop halfway. In October 2021 Mr Howard saw Dr Olsson, who recommended he continue with conservative treatment.
Dr Chow concluded that Mr Howard's symptoms were consistent with the injuries he sustained in the motor accident and there was no indication that Mr Howard has been exaggerating his symptoms at all. Dr Chow said that he had known Mr Howard for 30 years and seen him more than 20 occasions since the accident and there had been no suggestion at all that his symptoms were not genuine. They were completely consistent with the progression of his clinical course. Dr Chow wrote: “As I had stated above, Mr Howard has continued to struggle with most daily activities and requiring regular analgesia. He has maintain [sic] daily hydrotherapy. He is unfit for his pre-injury duties as a business development manager.”

Dr Olsson reported that both the MRI and CT scans showed that Mr Howard had some significant degenerative changes of his lower spine and, in particular, bilateral multilevel facet joint hypertrophy as well as disc changes consistent with disc disease. She noted that Mr Howard had daily back pain particularly with certain movements where the pain catches him very sharply on the left hand side in the paraspinal area and also with a more midline pain associated with the whole of the lumbar back which he described as a toothache which was present on waking and then present throughout the day, exacerbated by this intermittent sharp pain. Dr Olsson considered that there were multiple possible pain generators and that his accident has resulted in a flare of one or many of these which had not been amenable to the treatments he had thus far. She explained it is not unusual for joint pain to persist for months and for there to be exacerbations of the pain during this process. She recommended conservative movement therapy associated with a plan for analgesia.
Dr Gehr noted that prior to the motor vehicle accident on 20 April 2021, Mr Howard had no previous problems with his lumbar spine. He noted that the cervical spine pain had resolved but Mr Howard had persisting lumbar spine pain with tingling pain over the left buttock. Mr Howard said that he could sit for about 20 to 25 minutes and stand and walk for similar times. On examination, Dr Gehr reported that Mr Howard was cooperative with no pain behaviour, no exaggerations and no embellishments.
On examination Dr Gehr found evidence of guarding and dysmetria. Dr Gehr was of the opinion that Mr Howard’s current condition was a direct result of the accident which occurred during the course of his employment. Dr Gehr noted that Mr Howard had no previous history of back pain. He expressed the view that whatever changes there were on the imaging of the lumbar spine most likely would have remained asymptomatic for at least for another 5, 10, or 15 years if it had not been for the subject accident.
Dr Gehr considered that Mr Howard was not able to get back to his pre-accident occupation, and agreed with his GP (Dr Chow) that Mr Howard had been completely unfit for work since November 2021.
Dr Gehr disagreed with the opinion expressed by Associate Professor Miniter’s that Mr Howard’s current symptoms were not associated with his workplace injury and that Mr Howard was exaggerating his symptoms. Dr Gehr stated that he found no evidence of exaggeration with Mr Howard’s presentation while the assessment provided by Dr Miniter was conducted by phone. Dr Gehr considered that he had the advantage of a face-to-face examination which allowed a more accurate overall assessment of the client and their presentation. Dr Gehr also disagreed with Associate Professor Miniter’s view that Mr Howard was fit for pre-injury duties stating that the level of symptoms reported makes it difficult if not impossible for him to get back to his pre-injury duties.
Associate Professor Paul Miniter considered that the CT scan demonstrated no more than age-related change at the L4/5 and L5/S 1 levels and the MRI scan demonstrated similar pathology. Associate Professor Paul Miniter noted that Mr Howard had no nocturnal pain but complained of severe back pain and great difficulty even standing up.
Associate Professor Paul Miniter considered that Mr Howard had a minor injury and was concerned that his treatment program has not been successful. He saw no reason for Mr Howard not to immediately return to work in some capacity.
Associate Professor Paul Miniter expressed the view that work may have been a substantial contributing factor to aggravation of pre-existing lower back pathology, but there was no significant presenting factor that would explain his current presentation. Associate Professor Paul Miniter.expressed the view that if there was aggravation of pre-existing pathology it would have finished by now.
Associate Professor Paul Miniter considered that there seemed to be significant inconsistency but did note that he had not had the opportunity to physically examine Mr Howard.
In a supplementary report dated 6 October 2021, Associate Professor Paul Miniter expressed the view that Mr Howard was immediately fit for pre-injury duties as a business development manager. He felt that there were significant features of voluntary exaggeration of the symptom complex and Mr Howard displayed abnormal illness behaviour. Associate Professor Paul Miniter believed that it is not in “this man's interest to be other than regarded as fit for his usual duties which is, after all, a job that does not require physical activity.”
The opinions of Drs Chow, Olsson and Gehr differed significantly from those of Associate Professor Miniter. Drs Chow, Gehr and Olsson had all examined Mr Howard in person. As noted above Associate Professor Miniter assessed Mr Howard by speaking to him on the telephone.
Associate Professor Miniter expressed the view that if there was aggravation of pre-existing pathology it would have finished by now. Dr Olsson expressed the view that the accident resulted in a flare up of one or many pain generators, which had not been amenable to treatment to date. Dr Gehr and Dr Chow expressed the opinion that Mr Howard’s current condition was a direct result of the accident on 20 April 2021. There was no previous history of low back pain, and back pain has persisted since the accident on 20 April 2021. Dr Gehr expressed the view, which I accept, that whatever changes there were on the imaging of the lumbar spine most likely would have remained asymptomatic for at least for another 5, 10, or 15 years if it had not been for the subject accident.
I am satisfied that Mr Howard had no problems or symptoms in his lumbar spine before the accident on 20 April 2021. I find that he sustained an injury to his lower back in that accident which caused an aggravation, acceleration, exacerbation and deterioration to the asymptomatic pre-existing disc disease in the lumbar spine. Further, I am satisfied that Mr Howard has continued to suffer from symptoms caused by the aggravation, acceleration, exacerbation and deterioration to the asymptomatic pre-existing disc disease in the lumbar spine and that this aggravation, acceleration, exacerbation and deterioration to the asymptomatic pre-existing disc disease in the lumbar spine has not resolved.
In relation to the question of capacity for work, I prefer the opinions of Dr Chow and Dr Gehr to the opinion expressed by Associate Professor Miniter. Dr Chow had the advantage of seeing Mr Howard every month or fortnight since the motor vehicle accident on 20 April 2021. Dr Chow also had the benefit of knowing Mr Howard for 30 years and I accept Dr Chow’s opinion that the symptoms described by Mr Howard were genuine and consistent with the injuries sustained in the accident. I accept Dr Chow’s opinion that there was no indication that Mr Howard was exaggerating his symptoms as Dr Chow was in the best position to assess whether there was any exaggeration by Mr Howard.
I should add that I did not consider that any real weight could be placed on Associate Professor Miniter’s reports as he did not examine Mr Howard in person. Further, Associate Professor did not take, in my view, an adequate history of Mr Howard’s work duties which included driving for up to five hours a day and walking around building sites, including going up stairs and into confined spaces and therefore did not properly consider whether Mr Howard could return to his pre-injury duties.
The next issue to determine is the entitlement to weekly benefits. Mr Grimes submitted that Mr Howard was not totally incapacitated for work and could earn $500 per week in some suitable employment. He argued that Mr Howard had significant expertise in the electrical industry and would have the ability to do some sedentary work despite his ongoing symptoms.
I do not accept that Mr Howard has any current work capacity. The weight of the medical evidence and especially the evidence of Dr Chow and Dr Gehr supports a finding of no current work capacity. As noted above, Dr Chow reviewed Mr Howard’s condition regularly and was certainly in a good position to certify whether or not he was fit for work, and, if fit, what restrictions should be applied in terms of work duties. It may be that Mr Howard’s symptoms improve in the future with appropriate treatment but I am satisfied that he currently has no work capacity.
As noted above there was an issue raised concerning PIAWE. Mr Grimes stated that the insurer’s figure for PIAWE was $2,700 but proceeded to say that there was no evidence available to the respondent and insurer to support that figure. PIAWE was stated in both the ARD and Reply to be $2,248. It appears from the list of payments from the insurer that Mr Howard was being paid weekly compensation at the rate of $2,248 per week when his payments ceased.
It is appropriate, in my view, to simply make an order that payments of weekly compensation pursuant to s 37 of the 1987 Act to Mr Howard be reinstated.

[2022] NSWPIC 331

28 June 2022