Hurley v Narooma Preschool Kindergarten Association

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hurley v Narooma Preschool Kindergarten Association [2021] NSWPIC 408
APPLICANT:	Jula Hurley
RESPONDENT:	Narooma Preschool Kindergarten Association
MEMBER:	Kerry Haddock
DATE OF DECISION:	13 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses; applicant claimed to have sustained injury to cervical and lumbar spines as a result of disease pursuant to section 4(b)(i) or 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act); injury in dispute; applicant sustained injury at home 11 days later; respondent maintained that any incapacity for work or necessity for medical treatment resulted from injury at home; consideration of Nguyen v Cosmopolitan Homes, State Government Insurance Office of NSW v Oakley, Government Insurance Office of NSW v Aboushadi, EMI (Australia) Ltd v Bes, Seltsam Pty Ltd v McGuiness, Military Rehabilitation and Compensation Commission v May, AV v AW, Wollongong Nursing Home Pty Ltd v Dewar and Lawarra Nominees Pty Ltd v Wilson; Held - the applicant sustained injury to her cervical and lumbar spines, pursuant to section 4(b)(ii) of the 1987 Act and the further injury resulted from the subsequent incident at home, which would not have occurred had the applicant not already been injured; the applicant has had no work capacity at all relevant times; award for the applicant for weekly benefits and medical expenses.
DETERMINATIONS MADE:	1. That there is an award for the applicant of weekly benefits as follows: (a) from 6 March 2016 to 5 June 2016 at the rate of $565.77 per week, pursuant to section 36 of the Workers Compensation Act 1987; (b) from 6 June 2016 to 2 September 2018 at the rate of $476.44 per week, pursuant to section 37 of the Workers Compensation Act 1987, and (c) from 3 September 2018 to 28 February 2021 at the rate of $476.44 per week, pursuant to section 38 of the Workers Compensation Act 1987. 2. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987. 3. That the parties have liberty to apply with respect to the award of weekly benefits.

STATEMENT OF REASONS

BACKGROUND

The applicant, Jula Hurley (Ms Hurley) was employed by the respondent, Narooma Preschool Kindergarten Association (Narooma Kindergarten) as an early childhood educator.

Ms Hurley claims to have sustained injury to her neck and lower back, with deemed date of injury of 24 February 2016.

The applicant completed a Worker’s Injury Claim Form (the Claim Form) dated 18 April 2016. The date of injury was stated to be 24 February 2016. The applicant stated that she was shovelling dirt from compost to garden beds. She hurt her back, which became progressively worse, “then later began spasming, sciatica, numbness and lack of bladder control.” When she was injured, she was “moving 21 loads of dirt to garden beds in 1 ½ hours on 40º day”.

The Claim Form stated that the applicant “thought it was just sore muscles”, so the injury was not reported within 48 hours. It was “too late when realised degree of injury”. The applicant named witnesses to the injury as staff member Amanda Spooner, parents, neighbours, photos and staff. She had stopped work on 6 March 2016.

On 23 May 2016, the respondent’s workers’ compensation insurer, Allianz Australia Workers Compensation (NSW) Limited (Allianz) issued the applicant with a notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), which was then the section pursuant to which dispute notices were issued.
Allianz disputed liability on the grounds that the applicant had not sustained injury arising out of or in the course of her employment and that her employment was not a substantial contributing factor to the injury. It therefore disputed liability for payment of weekly benefits and medical expenses.
By letter dated 23 February 2017, the applicant’s solicitors requested on her behalf a review of Allianz’s decision.

On 13 March 2017, Allianz advised the applicant that it had reviewed its decision and maintained its position, pending receipt and review of an independent medical examination (report).

On 25 September 2020, the applicant completed a Permanent Impairment Claim Form. She claimed compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 56% whole person impairment (WPI) as a result of injury to her cervical spine on 24 February 2016.
By letter dated 6 October 2020 to the respondent and GIO General Limited (GIO) (which had assumed management of the claim) the applicant’s solicitors advised that the claim she had previously made was withdrawn, and she claimed $309,020 in respect of 56% WPI as a result of injury to her central and peripheral nervous system.
By letter dated 8 October 2020, the applicant’s solicitors requested that GIO review the decision by Allianz on 23 May 2016 to dispute liability for the claim.
On 4 March 2021, GIO issued the applicant with a notice pursuant to section 78 of the 1998 Act. GIO disputed that the applicant was entitled to permanent impairment compensation. It disputed that she had sustained injury, that her employment was a substantial contributing factor to the injury, and that her employment was the main contributing factor to the contraction of a disease injury or the aggravation, acceleration, exacerbation or deterioration of a disease injury. Liability for permanent impairment compensation, weekly benefits and medical expenses was disputed.
By letter dated 7 April 2021, the applicant’s solicitors again requested that GIO review the decision made in September 2020. There does not appear to have been any response.
The applicant lodged an Application to Resolve a Dispute (the Application) on 30 April 2021. She claimed to have sustained injury to her neck and lower back when repetitively handling heavy wheelbarrows full of compost in the course of her employment duties. The injury is claimed to be a disease, deemed to have occurred on 24 February 2016.
The Application claimed weekly benefits, pursuant to sections 36, 37 and 38 of the 1987 Act, from 6 March 2016 ongoing; past medical expenses of $8,642.55, pursuant to section 60 of the Act; and the sum of $309,020 in respect of 56% WPI, pursuant to section 66 of the Act, as a result of injury to the nervous system.
The respondent lodged its Reply on 24 May 2021.

ISSUES FOR DETERMINATION

The issues in dispute, as articulated in the applicant’s written submissions, are:

(a) whether the applicant sustained a disease injury to her cervical spine and/or lumbar spine on 24 February 2016;

(b) the applicant’s entitlement to weekly compensation pursuant to sections 36 and 37 of the 1987 Act, and

(c) entitlement to medical and related expenses, in respect of which the applicant seeks a general order, pursuant to section 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 11 August 2021.
Mr Adhikhary of counsel appeared for the applicant, instructed by Ms Nair. Mr Toohey of counsel appeared for the respondent, instructed by Mr Newell. The applicant was present. Mr Gore-Lenskyj from GIO also attended.

The Application was amended to claim weekly benefits from 6 March 2016 ongoing; to claim a general order for medical expenses pursuant to section 60 of the 1987 Act; and to delete the claim for permanent impairment compensation.

Due to the lengthy conciliation phase, during which the parties attempted to resolve the dispute, it was not possible to hear counsel’s submissions in the time remaining. A direction for written submissions was accordingly made. The applicant was also directed that on or before 12 August 2021, she was to file an Application to Admit Late Documents attaching documents served on the respondent by letter dated 10 June 2021. The parties have provided written submissions in accordance with the direction; and the documents have been filed.

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

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

(a)    the Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 5 August 2021 and attached document, filed by the applicant, and
(d)    Application to Admit Late Documents dated 12 August 2021 and attached documents, filed by the applicant.

Oral evidence

There was no application by either party to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Jula Hurley

The applicant has made three statements. I have extracted from her evidence a summary of the relevant matters. It is not intended to be a comprehensive survey of her evidence.
On 10 May 2016, Ms Hurley provided a statement to an investigator retained by Allianz.
Ms Hurley was employed by the respondent on a permanent part time basis, working Monday to Wednesday, with overtime as required. Her supervisor was Kathy Phipps.

On 24 February 2016, the applicant arrived at work at 8:30am, when she spoke with Kathy in the office. Kathy said “Before you do anything else, I want you to fill the garden beds with dirt from the compost, before the children arrive”. The garden beds were raised and had recently been put in. It was a 40 degree day.
The applicant commenced filling the garden beds. She was using a wheelbarrow and shovel or spade. “Amanda” (Spooner) was raking the dirt and Ms Hurley tipped the soil into the beds. The children helped, using little wheelbarrows and shovels. The applicant shovelled soil into the wheelbarrows and pushed them to the beds. This took about 1.5 hours and she moved about 21 barrows of soil. The distance between the soil and the garden beds was about 12 to 15 metres. The applicant had stitches in her right arm from a skin cancer having been cut out. She asked Amanda to help her tip the wheelbarrow as it was putting stress on her arm.
After the gardens were finished, the applicant was hot, tired and red faced. They went on with the normal day. She was a bit stiff and sore that evening. She had a shower and went back to the school for the BBQ and Planting Evening. The rest of the night was spent liaising with parents and children and helping the children with the planting. The applicant then had her days off, Thursday and Friday. She was stiff and sore the next day.
On 26 February 2016, the applicant saw a nurse and had her stitches out. Her doctor “stuck his head in the door”, checked her arm and told her the outcome. It was not a proper or formal consultation. She was there to see the nurse. She was focused on the results from her arm. Over the weekend, her back and neck got progressively worse.
The applicant went back to work on 29 February 2016 and her back and neck were still sore. She was very aware of her back and avoided lifting things, asking other staff for help. “Keren” was one of those she asked. She cannot remember exactly what she said, but it was to the effect that she did not want to further aggravate her back, as it was “very toey and sore”. She also had a conversation with Patricia Eaton, the cleaner, that week, and said she must be getting old, as her back was still sore from shovelling.
On 1 March 2016, the applicant made an appointment with Melanie Atteridge, her physiotherapist, for 3 March 2016. Ms Atteridge focused on the applicant’s neck, as it was pulling her jaw out of alignment. She also did not have enough time to work on the applicant’s lower back. She made a separate appointment for this on 10 March 2016.
The applicant worked her normal hours from 29 February 2016 to 2 March 2016. On 4-5 March 2016, her jaw improved but her lower back was not improving and was still very tight and sore.
On 6 March 2016, the applicant was at home. She bent down to put a tray in the oven/grill and her lower back began to spasm. She had pain down both legs, which she thought was a sciatic type pain. She also had altered bowel/bladder habits as the day went on. She rested, applied a heat pack and took pain killers. She texted Kathy and asked if she could get someone in for her, explaining her back problem.
The applicant referred to having produced the texts to the investigator. They are not attached to this statement but were lodged by the applicant as late documents. They show her having sent Kathy a text on 6 March 2016 including “I’ve just put my back out today. Can’t stand straight. Referring pain down legs. Restricted to bed. I’d say it’s sciatica.”
On 13 March 2016, the applicant sent Kathy a text to say she had “pinched a major nerve in my back. Had MRI on Friday. Physio has released it a bit. It is improving, but it requires further releasing and limited pressure on it.” There were further texts between the applicant and Kathy, including on 25 March 2016, when the applicant stated “Wish I’d never moved that damm [sic] soil.”
The applicant consulted Dr Brown on 8 March 2016. He advised bed rest and Panadeine Forte. He did not physically examine her.
Ms Hurley saw her physiotherapist on 10 March 2016. The physiotherapist was very concerned about her back symptoms and wrote to the doctor. She emphasised to see the doctor and get an MRI. She was also concerned it was cauda equina. She couldn’t believe the applicant had not seen the doctor yet, and suggested she see a different doctor.
The applicant consulted Dr Chandra at The Blue House Surgery on 11 March 2016, as she could not get in to see Dr Sacoor. Dr Chandra was also concerned about cauda equina and sent her for an MRI in Bega, which she had that day. She called her doctor about the results and he said they suggested it was not cauda equina, to rest over the following week, and see him the next week.
On 15 March 2016, the applicant saw Dr Chandra, who suggested she see a neurologist if her symptoms did not improve. At that stage they had not improved.
The applicant contacted Kathy on 24 March 2016, as she was hoping to return to work on light duties. Kathy said there were no light duties, and she would have to pass it before the committee.
On 29 March 2016, the applicant again saw Dr Sacoor, who advised her to see neurosurgeon Dr Khuran, who came to Batemans Bay, as her symptoms had not changed. Throughout April, she had regular reviews with the doctor and weekly visits to her physiotherapist.
On 8 April 2016, the applicant saw the neurosurgeon and he said there was nothing operable and he didn’t think there was any permanent damage. He suggested three months off work, with no excessive lifting, twisting or turning. He suggested “5 kgs max” and that she see a neurologist if symptoms persisted.
Ms Hurley saw neurologist/neurosurgeon Dr Fuller on 21 April 2016. He wanted her to have an MRI of the “top part” of her spine. She had not had that, as she could not get an appointment until June 2016.
The applicant’s partner gave Kathy the WorkCover forms on 26 April 2016. That was when Kathy rang and said she could not come back to work on light duties as they did not have any. This was the committee’s decision.
The applicant did not notify Kathy of the injury straight away because her back was sore but not debilitating. As she was not due back at work over the next few days, she could not report it. Kathy told her it must be done within 48 hours and after that “I couldn’t”. It gradually got worse over time. Her doctor asked her what she had done prior to this event, as bending over the oven would not do this. She informed him that it was sore since shovelling dirt at the school. This was confirmed by her physiotherapist. She had not returned to work since 6 March 2016.
The applicant believed “it was the twisting more so than the lifting”. Because of the stitches in her arm, she was also not reaching out fully and more conscious of utilising her core. There was a lot of twisting involved in the shovelling and getting the wheelbarrow through the gate and around the children.
On 29 May 2017, the applicant made a supplementary statement. She was responding to the evidence of Ms Spooner and Ms Phipps, whose evidence is not before me, but must at some stage have been provided to her.
The applicant stated that she and Amanda completed most of the task together. She did not report her injuries to Amanda as she thought she was simply tired and sore. She has not had any prior back injuries, so she did not tell Amanda she had.
The applicant told Kathy in a phone call on 18 March 2016 that her injury resulted from shovelling dirt on 24 February 2016. This is outlined in her journal entry on 18 March 2016. She had never had prior back problems and did not tell Kathy she had sciatica.
The applicant did not officially report her injury as she thought her back and neck symptoms were general muscle soreness that would resolve over time. She did not perform particularly strenuous work at the school event. She had taken a Panadol immediately before attending, which minimally reduced her symptoms. She had mentioned her pain to her mother that evening and borrowed a heat pack.
The applicant referred to a copy of her journal from 24 February 2016 to 30 April 2016. She did not bend to put a tray in the oven/grill but squatted. It involved minimal “bending” and minimal need to bend forward. Following this, she experienced numbness in her legs and groin area and developed bowel and bladder problems, which were ongoing.
On 23 December 2020, the applicant commented on Dr Paul Teychenné’s evidence.
The applicant stated that she was prescribed Diazepam only for anxiety in relation to undergoing an MRI. She has listed numerous disabilities. They include muscle spasms; urinary symptoms; “jelly like legs”, which collapse regularly; lack of muscle tone in the inner thighs and calves; no sensation in the vagina, bladder or bowel; limitation on walking; decreased sensitivity in the legs; numbness and lack of sensitivity in the internal saddle area; change in skin colour; prominent veins in the legs; difficulty climbing stairs; inability to walk up hills, inclines or uneven ground; reliance on a walker or back brace; bladder and bowel compromise and incontinence; internal numbness and sexual dysfunction; numbness and spasms from the waist down; no core strength; inability to sit or stand for more than 10 minutes without escalation of pain; aching legs and feet to the point where she could no longer stand; lower back spasms and sciatica; inability to sleep; and intermittent feelings of sickness, feeling hot and nausea.
The disabilities interfered with the applicant’s daily functioning, including her ability to work. She could not even put on her pants and shoes without assistance. She was unable to perform simple daily chores or lift and play with her grandchildren.

Applicant’s journal entries

The journal entries were submitted as late documents by the applicant. The documents include an email from her solicitor to the solicitor for the respondent, stating that she was instructed that the applicant sent them to the factual investigator, and they were annexed to the original statement, which she signed for the insurer. No objection to the evidence has been taken, and the respondent has made submissions about it.
The entries are consistent with the applicant’s statement evidence about the circumstances of the injury on 24 February 2016 and the incident at home on 6 March 2016. There are also entries regarding her symptoms, treatment and interactions with the respondent, Allianz and her union.

Evidence of Diane Reid

Ms Reid has provided a hand-written statement dated 30 May 2016.
Ms Reid stated that on the morning of 24 February [2016], she dropped her granddaughter at Narooma Pre-School. She had observed Ms Hurley shovelling soil into wheelbarrows and moving it to the new garden for “The Planting Evening” that night.

Evidence of Jeanette London

On 31 May 2016, Ms London stated she had organised to go kayaking with the applicant on 3 March 2016. The applicant rang her to cancel it, “because her back was still sore from when she had shovelled dirt at pre-school.”

Evidence of Fay Hurley

Ms Fay Hurley (whom I will call Fay, to avoid confusion, and meaning no disrespect) is the applicant’s mother. She stated on 1 June 2016 that on 24 February 2016, when the applicant arrived to pick up her son after work, she mentioned that digging the dirt [at the pre-school] was hard work and her back was sore from doing it. She asked if she could borrow her mother’s heat pack.
Fay was aware that the applicant’s back was sore the rest of the week and the following week, as she could see the way she was holding it, and through multiple conversations during this period.
Thelma and Billy Lamb were also involved in a conversation about the applicant’s back on 27 February 2016. After this conversation the applicant borrowed ointment from Fay on 28 March 2016, to try and relieve the pain in her back.
On 21 March 2017, Fay made a further statement, expanding on her earlier evidence.
When the applicant arrived at Fay’s home on 24 February 2016, she was walking slowly, holding her back. She said she needed to sit down and rest. Fay made her a cup of tea. She appeared to be in pain and exhausted. She said she had to fill the garden beds with soil from the compost bins. It was a very hot day and she hoped she hadn’t split the stitches in her arm.
After resting for a while, the applicant took painkillers and had a shower, as she thought it might help relieve the pain. She said she really didn’t feel like going to Planting Evening but had to. She returned to pick up her son, looking tired and sore. She said she wanted to get home and rest her back. She said digging the dirt was hard work and her back was sore from doing it. Before going home, she asked to borrow Fay’s heat pack.
Fay was aware that the applicant’s back was sore for the rest of the week and the following week and became worse. She could see by the way she held it, became more restricted in her movements, and needed to take stronger medication more regularly. The applicant informed Fay her back was getting worse multiple times during this period. She also borrowed rubbing ointment and made appointments to see the physiotherapist.

Evidence of Thelma Lamb

On 1 June 2016, Ms Lamb stated that on 27 February 2016, she and her husband called into Ted and Fay Hurley’s for morning tea. The applicant was there, and it came up in conversation that she was still sore from all the shovelling she had done at pre-school earlier that week. Ms Lamb suggested she rub some liniment on her neck.

Evidence of Patricia Eaton

On 2 June 2016, Ms Eaton stated that she was employed at Narooma Pre-School as a cleaner. As she had “told the Verifact interviewer for Allianz”, in a conversation one afternoon at work, the applicant had mentioned that her back was sore from moving soil for the planting evening.
Ms Eaton was unsure of the exact day, but she knew the conversation occurred between the planting day and prior to Ms Hurley being off work with her sore back.

Evidence of Graeme Negus

Mr Negus is the applicant’s partner. He stated on 3 June 2016 that on arriving home on the evening of 24 February 2016, she told him she was tired and sore from shovelling at work. She used a heat pack to try and relieve her discomfort.
Over the next 10 days, the applicant’s back continued to be sore and progressively got worse. During this time, Mr Negus had to massage her back and neck, apply cream, heat the wheat pack and help with household duties. Ms Hurley had to take pain killers.
Mr Negus made a further statement on 19 March 2017.
Mr Negus confirmed but expanded on his earlier evidence. When the applicant got home on 24 February 2016, she was exhausted and said she had had “a massive day”. Kathy had told her to shovel dirt and fill the garden beds before the children arrived, but it took over 1.5 hours. The children joined in, making it more difficult. During this process, she injured her back and it had been sore ever since.
The applicant was still stiff and sore the next morning. She said she was glad she had the rest of the week off, but her back did not improve. She continued to go to work, as she had no sick days left. She said she avoided lifting and asked others to help. She came home exhausted and in pain.
On 4 March 2016, the applicant filled in for Kathy. She didn’t really want to, as she was sore and needed the rest, but felt obliged to do so, as Amanda couldn’t do it.

Evidence of Alan Fridley

On 23 March 2017, Dr Fridley stated that he had been asked by the applicant if he recalled events at the pre-school on 24 February 2016.
Dr Fridley had consulted his diary. On 24 February 2016, he visited the pre-school to drop off some tablets for the cat of another teacher, Ms Kelly Winter. He saw the applicant, who had been a client for many years and whom he remembered as quite active and athletic, acting slow and hesitant. She said she had been doing some work in the garden, shovelling dirt, and had done something to her back.
Dr Fridley gave Ms Winter the tablets for her cat. It was a hot day and they chatted briefly. It was obvious the applicant was in considerable discomfort.
The diary entry confirms that Dr Fridley saw Ms Winter at the pre-school on 24 February 2016 between 11am and 12pm.

Medical evidence

The Blue House Surgery

The clinical records of the practice are in evidence.
The applicant had some skin lesions removed in February 2016.
On 26 February 2016, there is a record of histopathology – “Skin, right upper arm – SCAR”. The notes record the wound had healed well. The reason for the visit was recorded as removal of stitches.
On 11 March 2016, there is a record that the applicant “put out back on Sunday”. She had bent to put something in the oven – “sudden pain – spasms”. She had seen a GP three days ago. There is a notation of Panadeine Forte, that the applicant had seen a physio, which did help. “? Cauda Equina lesion” is also noted. The applicant “cannot go to toilet. Numbness down both legs. Says no control of bowels, bladder. Getting hot flashes. Nausea.” It was also noted that the applicant had back spasms 10 years ago – “no injury”. Her pain was rated 7/10. The doctor has recorded the reason for her visit as “Cauda equina compression?”
On 15 March 2016, the applicant still had bilateral sciatica symptoms, “when stands ++”. She was due for physio in two days. She still had toileting issues.

On 29 March 2016, the doctor recorded that on 24 February 2016 the applicant had moderate back pain since using a wheelbarrow and shovel to move 21 beds of soil into a garden bed at pre-school on a hot summer day. On 6 March 2016, she bent over at home and felt exacerbation of back pain and spasms. The assessment was “acute work-related back injury”. The reason for the applicant’s visit was “workers’ compensation. Low back injury”. The doctor issued a Certificate of Capacity (COC) that was consistent with this description of the injury.

The applicant continued to consult the practice for her back injury, a previous left shoulder injury and other matters.
On 5 May 2016, the doctor recorded that the back injury was slowing improving. There was less numbness, but more pain. There were reduced urinary symptoms. The applicant had been seen by Dr Fuller, neurosurgeon, and was to continue conservative management.

On 8 July 2016, it was noted that the applicant had seen Dr Malhotra (neurology) – “no neurological deficit”. She said she had mid-back and lower back aches and persistent bladder and bowel disturbance with saddle distribution numbness. She remained distressed about her work situation and the requirement to “return on full duties”.

On 21 July 2016, it was noted that the applicant went back to work on Tuesday and Wednesday. On Tuesday she had spasms in her back and down her right leg, that settled a few hours later. She had low back pain on Wednesday that settled after rest. She still had a lack of control over her bladder and bowel.
On 4 August 2016, it was noted that there had been an exacerbation of low back injury after two half days at work. There were no new neurological symptoms, systemic symptoms or red flags. There was “severe stress re: employment issues, legal issues”. The assessment was early depression with severe stress.

The applicant continued to consult the practice, which issued her with COCs.

On 16 September 2016, it was noted that the applicant had a recent exacerbation triggered by physiotherapy. She had seen Drs Malhotra and Fuller, two neurosurgeons, Drs Khurana and Tsai, and had an appointment to see Dr Speldewinde for pain management. There was a discussion and counselling that included “lack of specialist interest in her case”.
The applicant continued to complain of low back pain and sciatica. On 24 October 2016, it was noted that she was using a walker at home and struggling to complete ADLs (Activities of Daily Living). She was increasingly depressed and frustrated by her situation and the lack of pathology on imaging. There were previous neurology and neurosurgical reviews without diagnosis. A referral to Dr Paul Ferris for pain management was made.
On 9 December 2016, it was noted that the applicant had been seen by Dr Ferris and was awaiting blood test results. She was referred to neurologist Dr Andrews “re ongoing lumbar and sciatic symptoms, patient concern about possible MS”.

On 9 February 2017, it was noted that the low back pain and sciatica were slowly improving. There was continuing leg weakness and reduced mobility. The applicant was awaiting further MRI scans and under Dr Andrews’ care.
On 23 March 2017, there was no change to chronic axial/functional back pain with neurological bladder dysfunction. The applicant had severe back pain with prolonged standing or sitting “However, says she has no problem driving her car!” Dr Peter Bentivoglio, neurosurgeon, had advised MRI of the pelvis, and neurosurgical referral. She was referred to neurosurgeon Dr Pope.
The applicant continued to consult the practice throughout 2017, with improvement noted on some occasions, and little or no change on others. On 13 November 2017, she was referred to Dr Teychenné.
On 18 July 2018, the history was recorded as severe episode of acute on chronic spinal pain, triggered by bending down awkwardly. There were ongoing chronic cauda equina symptoms for several years, under specialist review. The assessment was “Acute disc bulge or prolapse?”
On 8 November 2018 it was noted that there was no change to the applicant’s chronic back pain. She said she was unable to work but was still able to drive to Canberra several times each week.

On 18 April 2019, numerous complaints including headaches, recent lumps on the legs, odd skin rashes, strain in the heart, and poor circulation in the legs, as well as chronic unchanged back pain, were noted.

On 13 June 2019, it was noted that the applicant had spastic tetraparesis with profound bowel and bladder issues.
On 12 November 2019, the applicant had had a fall and landed on her back. “Nil injuries” but she had a painful back and left buttock. She had poor leg strength from a workplace injury. She had normal bowel and bladder movements.
On 14 March 2020, it was noted that the applicant had seen neurologists – “nil clear diagnosis”. She had significant issues with her lower back. She was very stressed and distressed.
On 6 August 2020, it was noted that the applicant had chronic low back pain and sciatica symptoms. She had seen a neurologist and got a diagnosis of spinal cord injury.
On 29 December 2020, it was noted that the applicant had ongoing incontinence. She had severe muscle spasms all over the legs. She felt her legs became “jelly” with mild twisting movement of her back. She could not walk more than 10 metres without the walker.
On 19 February 2021, it was noted that the applicant had a partial spinal cord injury. She had seen multiple specialists, including neurologist and neurosurgeon and was seeing a neurologist. She got spastic lower limb muscle pains bilaterally. She used to feel numb below the spine when the injury happened “years ago”. She was able to urinate and open her bowel with no issues. She was unable to work due to the injury that happened while shovelling.

Narooma Physiotherapy Centre Pty Ltd

The clinical records of the practice commence on 3 March 2016. There is reference to what appears to be left shoulder paraesthesia, especially with one strap of the bra over the scar. It is apparent from her general practitioners’ records that the applicant had undergone surgery to her shoulder. The notes also appear to refer to “C/S”, assumed to mean cervical spine.
On 10 March 2016, Ms Atteridge recorded that the applicant bent four days ago to put something in the oven. She “was already a little stiff”. She felt immediate pain across the “L/S” (lumbosacral). Ms Atteridge recorded spasm and “heavy” pain (?) in both lateral thighs to the knee and around the hips. She has also noted + “cord/cauda equina”.
Ms Atteridge reported to Dr Daniel Sacoor on the same day. The applicant had presented with a four day history of acute low back pain. She reported bilateral leg pain in her lateral thighs to her knees and significant paraesthesia in that region. She also reported saddle numbness, including internally, and altered bladder control.

Ms Atteridge opined that these were all signs of a cauda equina compression. The applicant was very reluctant to have unnecessary tests and as the paraesthesia had improved, Ms Atteridge had asked her to monitor it closely and follow up with a medical opinion if it got worse.
On 17 March 2016, Ms Atteridge recorded that the applicant had remembered that the week prior (Sunday onset) she did lots of wheelbarrowing – 21 loads of dirt/compost. She felt significantly better after treatment. She had rested lots. There was relief from leg pain. If she was up on her feet, “sciatica”. Her bladder/bowel control was still bad, “perhaps starting to improve today”.

On 5 April 2016, Ms Atteridge reported that the applicant had presented on 10 March 2016 with acute low back pain and paraesthesia. She reported this came on when she bent to put something in her oven on 6 March 2016. She had been a little stiff before the onset.
After thinking about what may have caused this, the applicant remembered having filled, wheeled and emptied 21 wheelbarrow loads of soil, in under 90 minutes, at work on 24 February 2016.
Ms Atteridge opined that this type of asymmetrical and very large twisting load is consistent with the SIJ (sacroiliac joint) dysfunction that appeared to be causing the applicant’s symptoms. Given that it was not something she was conditioned to do, and the very large heavy load she shifted, it was likely to have been the precipitating factor.
Ms Atteridge continued to treat the applicant. On 4 August 2016, she recorded “bad 2/52 since work”.
On 28 March 2017, Ms Atteridge recorded that “WorkCover review denied and appeal denied as not enough substantial evidence as being from work”. She had reviewed her notes and there was nothing new she could add that wasn’t covered in her letter dated 5 April 2016.
Ms Atteridge at times recorded some improvement in the applicant’s condition, but it was not sustained, and she had often noted new symptoms. The last entry is dated 18 October 2019.

Dr Gautam (Vini) Khurana – Neurosurgeon

Dr Khurana reported to Dr Sacoor on 15 April 2016.
Dr Khurana recorded a history that the applicant had had some low back and neck pain since filling the garden beds at work on 24 February 2016. It improved with some physiotherapy but on 6 March 2016 she had further back pain while bending in the kitchen. She had spasms and some saddle anaesthesia, bilateral sciatica, altered bowel and bladder function “and so forth”. The symptoms were “certainly suggestive of a cauda equina syndrome” and Dr Khurana agreed with the progression to MRI, based on these symptoms.
MRI done on 11 March 2016, about a week after the second injury and the escalation of the symptoms to cauda equina type symptoms, showed no radiological basis for cauda equina syndrome. The applicant had some mild spondylotic changes at L4/5, but no objective physical or radiological cauda equina syndrome, despite symptoms suggesting it. Dr Khurana could not explain those symptoms, but the applicant could be reviewed by a neurologist, urologist or both.
Dr Khurana recommended conservative management. There was no operative indication, based on the examination and radiology.

Dr John Fuller – Neurosurgeon

Dr Fuller reported to Dr Chandra Jinabhai at The Blue House Surgery on 23 April 2016.
Dr Fuller recorded a history that about 10 weeks ago the applicant had been working in a garden at school and stressed her lower back. About two weeks later she bent over and developed severe lower back pain and spasms. The pain radiated to both lower limbs and was associated with paraesthesia affecting her saddle region, and disturbance of her sphincter function.
The applicant had been treated with physiotherapy, heat, rest and analgesia. Her lower back spasm and pain had improved, and her sciatica had predominantly resolved. She still complained of quite significant left lower back pain. Her sphincter dysfunction had also significantly improved.
Dr Fuller noted MRI scan of the lumbosacral spine demonstrated disc desiccation at L3/4 and L4/5. There was a mild diffuse disc bulge at L4/5, but no evidence of nerve root compression. The spinal cord terminated at T12/L1. There was no evidence of cord tethering.
Dr Fuller opined that management of the applicant’s lower back pain was essentially ongoing physical therapy and medication as required. With regard to work issues, he suggested referral to Dr Geoff Speldewinde, rehabilitation specialist. He had arranged MRI of the thoracic spine to clarify that there had not been a structural lesion accounting for the applicant’s sphincter dysfunction.
Dr Fuller again reported on 9 June 2016, when he noted that the applicant’s symptoms had continued to improve. She believed she was about 70% to 80% better.
The applicant’s main issue was ongoing lower back pain. MRI of the thoracic spine demonstrated spondylosis but no evidence of cord compression or intrinsic lesion, which may have accounted for her symptoms.
Dr Fuller opined that an ongoing physical therapy program would be appropriate, and he had referred the applicant to Dr Speldewinde for this and a return to work program.

Dr Ram Malhotra – Consultant Neurologist

Dr Malhotra reported to Dr Sacoor on 14 June 2016.
Dr Malhotra recorded a consistent history of injury on 24 February 2016, and the start of back pain. On 6 March 2016, the applicant bent down at home and started to get numbness and back spasms and sciatica down the legs, and “started affecting bowel and bladder area”. Her symptoms were slowly resolving, but her bowel and bladder were not back to normal. Sitting down and twisting her back exacerbated her lower back pain.
Dr Malhotra noted MRI of the lumbar spine revealed multi-level disc degeneration, most marked at L4/5, with right posterolateral tear. There was no evidence of nerve root impingement.
The applicant had been seen by two neurosurgeons and no neurosurgical cause was found to explain her radicular and bowel/bladder symptoms. Dr Malhotra also did not find any neurological explanation. He thought the applicant could go back to work on reduced hours with gradual full time work over the next four to six weeks. He had continued physiotherapy.

Dr Malhotra had requested CT SPECT of the spine to further investigate the applicant’s ongoing lower back pain and decide whether she would benefit from local injection. He was to review her after the scan.
The scan was reported by Dr Surjit Wadhwa on 23 June 2016 as showing no significant pathology. There were minor degenerative changes at L3/4 and the hips.
Dr Malhotra reviewed the applicant and reported on 28 June 2016. He had reviewed the scan and found no organic/medical cause for her symptoms.
Dr Malhotra opined that the applicant could return to full time pre-injury work, as no ongoing medical or neurological issues were discovered on extensive investigations.

Dr Paul Ferris – Pain Management Specialist

Dr Ferris reported to Dr Sacoor on 28 November 2016.
Dr Ferris recorded a history of chronic mechanical low back pain, intermittent leg weakness and symptoms of cauda equina syndrome following a work-related injury, with no significant pathology on MRI. This was on a background of litigation, issues with the employer and insurance company, fear avoidance behaviours, previous domestic violence and medication intolerance.
The applicant dated the onset of her symptoms to 24 February 2016, when she moved 21 barrow loads of dirt for the garden. She had increasing low back pain over the following week and a half. On bending to put something low in the oven, she developed sudden onset of back spasms, radicular pain down the legs, impaired bladder and bowel control and saddle numbness.
Dr Ferris provided the applicant with some education on the nature of chronic pain, the importance of a graded exercise program and re-engagement with social activities. He suggested she continue with her physiotherapy and pharmacotherapy and should consider referral to a psychologist. He was to review her in about two weeks. There are no further reports from him.

Dr Nicholas Tsai – Orthopaedic Surgeon

Dr Tsai reported to Dr Sacoor on 5 September 2016.
Dr Tsai recorded a history that the applicant started experiencing problems with her back and legs about six months before. She had spent 2.5 hours shovelling dirt. Initially she had some mild lower back pain but after a few days developed severe pain in her lower back, with muscle spasms. Subsequently she had had pain in her lower back with radiation down her legs and tingling.
The applicant had had physiotherapy and her symptoms had waxed and waned. She had recently felt a clunk in her lower back and her back pain had improved, but her legs felt weak.

Dr Tsai noted that the applicant had been seen by two neurosurgeons and one neurologist in the past six months, and none had been able to come up with a diagnosis for her. He opined that her symptoms did not seem to fit any particular condition he knew of. He reassured her that the feeling of weakness in her legs did not come from her lumbar spine. He wondered
if she “deserve[d]” another review by a neurologist and noted she was due to see Dr Speldewinde in October. Dr Tsai did not think he had anything to add to her management.

Dr Colin J. Andrews – Consultant Neurologist

Dr Andrews reported to Dr Sacoor on 1 March 2017.
The applicant still had weakness in her legs, with some numbness between the thighs. She believed her bladder had improved. She thought there had been slight improvement and she was with a physiotherapist.
Dr Andrews noted that the applicant had had MRI of her brain, cervical and thoracic cord, all of which were normal. He had reviewed the MRI of her lumbar spine from 14 October 2016, which showed no neural involvement.
On re-examination, Dr Andrews could find no definite neurological abnormality. He opined that “it looks very much a functional illness”. They are very hard to treat, but probably the best was continuing encouragement, physiotherapy and possibly rehabilitation, “although sometimes they don’t rehabilitate that well.”

Dr Raoul Pope – Neurosurgeon and Spine Surgeon

Dr Pope reported to Dr Sacoor on 5 April 2017.
The applicant complained of lower back pain and bilateral lower limb pain, pins and needles and numbness for one year. Dr Pope noted a “very unusual constellation of symptoms”.
Dr Pope recorded a consistent history of injury on 24 February 2016. The applicant had tightness in her lower back and pain progressively worsened over the ensuing days. Ten days later, she was putting something in the oven, when she had a sudden onset of severe back spasming, intractable lumbosacral junction back pain and bilateral sciatica.
The applicant had progressive, almost cauda equina symptoms. Over time, the numbness had improved, with pins and needles only in the inner thighs and perineal region. The applicant had pain in both legs and non-dermatomal weakness in her legs. She needed to use a walking frame in the community and had difficulty walking up stairs and hills.
Dr Pope opined that the applicant’s symptoms did not correlate with the examination findings and imaging. Diagnoses as rare as Guillain-Barre syndrome were a possibility, but that was highly unusual.
Dr Pope noted that two neurologists had ruled out any neurological conditions. The main issue was that the applicant needed to recover from her disuse syndrome. She could have a chronic regional pain syndrome type 2, but Dr Ferris could comment on that. Dr Pope would like her to try to push through some of the weakness and discomfort, and work with physiotherapy. He had given her no particular restrictions and it would be highly desirable for her to find some work.

Dr Paul Carney – Neurosurgeon

Dr Carney was qualified by the respondent and reported on 30 May 2017.
Dr Carney recorded a history of one accident at work on 24 February 2016, when the applicant said she injured her lower back. She had had numerous consultations with specialists and in further investigation.
The applicant described her symptoms as lower back pain and spasms; saddle numbness; internal numbness; bowel and bladder compromise; leg weakness; fatigue (jelly legs); and sciatica. Sitting and standing were limited to 10 minutes and walking to 25 metres because of fatigue, and she used a walker. She could drive for half an hour before she needed to stop. Her legs would not walk uphill or on inclines.
Dr Carney recorded that the applicant was taking numerous medications. She had tried physiotherapy, massage, exercises, acupuncture and one episode of “hydrotherapy”, walking in a lake.
Dr Carney recorded a consistent history of the injury on 24 February 2016. The applicant said she developed a sore back and neck and at the end of the process she was exhausted. She went home, still suffering from a sore back. She returned to work that evening but carried out no physical work.
On 6 March 2016, the applicant bent down to put something in the oven and developed “extreme spasms” in her lower back, describing the pain as excruciating. She then had pain in the lateral aspect of the thighs, going down the lateral aspect of the calves. At the same time, she developed weakness in her legs and saddle numbness. She noted bladder and bowel loss of control as the day went on.
Dr Carney recorded that the applicant’s symptoms remained the same. She saw a neurosurgeon in April 2016 (assumed to be Dr Khurana). He recommended three months off work and that she take it easy, not lifting weights more than 5 kg. There was minimal improvement and she saw different doctors thereafter, continuing physiotherapy and medication. In June 2016, she saw a neurologist, who told her there was no explanation and no physical reason for her symptoms.
The applicant told Dr Carney that by this stage she was quite desperate financially, having just bought a house. She tried to resume work on 19 July 2016 and 20 July 2016. The weakness in her legs became more pronounced and she ceased work.
The applicant saw an orthopaedic surgeon on 6 September 2016. He told her he had no explanation for her problems. She was referred to Dr Ferris for pain management. She explained that he told her she had a chronic pain problem. She had been seeing psychologist Mr Tim Golding for the past six months.
Dr Carney recorded complaints of pain in the lower back and spasms, worsened with activity. The applicant had continuing pain down the lateral aspects of the thighs, lateral calves and the dorsal surface of both feet. The numbness had started in her feet and worked up her inner thighs. She then developed numbness in the saddle area. She had no sensation internally. She had weakness in her legs and fatigued rapidly when walking. Otherwise, she used a walking frame. Dr Carney asked her about her incontinence, and she said she initially had no control, and now had accidents from time to time.
Dr Carney recorded his examination. He reviewed the investigations and noted that none revealed an abnormality that could explain the applicant’s presentation.
Dr Carney described a prolonged illness with neurological symptoms, for which there had been no demonstrable underlying structure or neurological disorder, despite repeated testing. It was probably best described as a functional neurological symptom disorder (FNSD). There are other terminologies, but they tend to have somewhat pejorative overtones.
The applicant’s condition was characterised by weakness, sensory impairment and symptoms of incontinence. Its basis is sometimes explained in psycho biosocial terms. It is not uncommon and probably some 30% of presentations to neurologists are for this condition.
Dr Carney opined that the applicant required treatment with a neurologist, psychiatrist or possibly both, with an interest in her condition and its management. She needed to understand that this is a common problem and a known disorder and be clear about the diagnosis and her potential for recovery. Her treatment would probably depend mainly on physiotherapy and occupational therapy, but she may require psychotherapy. It was important that all involved understood the nature of her disorder and the potential for rapid improvement with understanding and appropriate physical and rehabilitation programs, which may be as short as one to two weeks.
Dr Carney was unable to relate the applicant’s diagnosis to her work with the respondent. He was referred to Dr Endrey-Walder’s and Dr Bentivoglio’s reports. He opined that he had no evidence that the applicant suffered an aggravation of a pre-existing condition or that she suffered significant soft tissue strains either at work or at home. There may have been minor strain injuries that should have resolved in physical terms within days. The applicant appeared to have been very fit and active and there was no evidence from current x-rays that she had any more than the expected degree of degeneration for her age. The structures imaged were in a very good condition for her age.
Dr Carney opined that sometimes “this condition” is precipitated by a physical injury that would otherwise recover within a few days. It is possible that some physical injury at work or more probably the injury at home, when she described an acute onset of severe pain, precipitated the onset of the problem, in which case it was more likely that the incident at home was the precipitating factor. In physical terms, these are problems that should have resolved within a few days.
Dr Carney concluded that any physical aggravation had long ago ceased. In that sense, the applicant would be fit for her pre-injuries. However, her condition overall would preclude this. Given appropriate treatment for her FNSD, she had potential to return to her pre-injury duties, and it might be important to include this in her goals during the rehabilitation program. He opined that Allianz was not liable for any treatment or incapacity, in that the symptoms were not substantially contributed to by the work injury. However, it was a significant and not uncommon illness and the applicant required appropriate treatment.

Dr Paul F. Teychenné – Neurologist

Dr Teychenné has been treating the applicant since November 2017. He has provided numerous reports, each of which includes a comprehensive history and findings on examination.
On 15 November 2017, Dr Teychenné reported to Dr Muhammad Malik. He recorded a history that on 24 February 2016, the applicant was shovelling dirt into a raised garden bed. She was flexing slightly at the lumbar spine and twisting right and left. As she did this, she noted pain between the scapula at about T6, extending up the vertebral column into the upper neck. Dr Teychenné recorded symptoms in the cervical and lumbar spines.

On 6 March 2016 the applicant squatted to put a “toastie” in the oven. She had a straight back as she squatted slightly forward. As she did this, she had an intense pain over the lower lumbar spine, at 10/10. She had spasms of sharp excruciating pain down the lateral legs, which went weak and collapsed. “They went like jelly”. The applicant slowly fell down. All this occurred within half an hour of the onset of the intense pain over her lumbar spine. She then developed bowel and bladder symptoms.

The applicant had physiotherapy. Her tight sore neck settled about two weeks after the shovelling incident. She still had lumbar and cervical spine symptoms. She began to notice tingling in her toes in August 2017. She then noticed it over her medial calves and thighs and “the odd tingle within the vulva”, although she had not recovered vaginal sensation. She had some bowel and urinary incontinence.
Dr Teychenné recorded numerous symptoms and an extensive examination. EMG Nerve Conduction Study was normal, as were Brainstem Evoked Response and Visual Evoked Response.
Dr Teychenné opined that the applicant had evidence of an incomplete cord lesion. It was probably within the high thoracic region, though the weakness within the upper limbs would also put it up into the cervical region. An MRI scan on 16 February 2017 was consistent with an incomplete cervical cord lesion within the C5/6 and C6/7 region.

On 6 December 2017, Dr Teychenné reported that he had conducted a Somatosensory Response in the applicant’s upper limbs. The latencies were symmetrical. Conduction through the posterior cervical cord, thoracic outlet and cervical nerve roots was within the normal range. He did not find evidence of posterior spinal dysfunction. He opined that this was not unusual in situations of central cord syndrome. The major effect is on the central portion of the cord, which does not include the Somatosensory pathways. It affects mainly the spinothalamic and corticospinal tract pathways, which was consistent with the applicant’s clinical picture. She was showing some evidence of regeneration or recovery.
On 20 December 2017, Dr Teychenné reported that he had carried out a Somatosensory Response within the applicant’s lower limbs. He did not find evidence of lumbosacral nerve root compression or cauda equina compression. A normal decrement study indicated a normal synaptic and anterior horn cell function.
On 10 January 2018, Dr Teychenné reported that he had carried out a Somatosensory Response within the applicant’s lower limbs and found no evidence of a posterior spinal lesion. There was again a normal decrement study.
On 9 May 2018, Dr Teychenné opined that the applicant’s clinical picture was consistent with an incomplete cervical cord lesion. She had recovered a sense of vibration and joint position sense.
On 1 August 2018, Dr Teychenné again opined that the applicant’s clinical picture was consistent with a central incomplete cervical cord lesion, with sacral spurring in the right side. Her clinical picture had been slowly improving over 2.5 years.
Dr Teychenné opined that it was hard to determine whether the applicant would achieve significant improvement, but there appeared to be some positive signs, in that she was regaining more muscle tone in some muscles, although some were also going into spasm, which could be consistent with spasticity. It was too early to determine prognosis.
On 10 October 2018, Dr Teychenné reported that he did not find any evidence of denervation on EMG muscle sampling. It was apparent that the applicant had a tetraparesis far more marked in the lower limbs. The sensory level was at C3 and she had upper motor neuron weakness within the upper limbs. She also had upper motor neuron weakness in the lower limbs. Her quadriceps and hamstring muscle power was normal. Dr Teychenné felt overall that there was some evidence of improvement.
On 12 January 2019, Dr Teychenné reported to the applicant’s solicitors. He repeated the history he recorded on 15 November 2017. The applicant had described a sore aching neck and tight spasms within her neck during the night of the injury. She also developed tight spasms localised over the lumbar spine, extending into the left and right paralumbar region.
Dr Teychenné confirmed his previous diagnosis. The incomplete cervical cord lesion was probably predominantly present at C5/6, though the significant flattening of the cord at T6/7 could also induce an incomplete cord lesion with the sensory level at T10.
Dr Teychenné concluded that the applicant had a tetraparesis that was more marked within the lower limbs, with myelopathic weakness within the lower limbs. She was “totally unemployable”. She required a walker and as her legs collapsed with sudden movement, she may require a persistent wheelchair. She was presently totally disabled due to her tetraparesis and predominant bilateral paraplegia.
On 20 February 2019, Dr Teychenné reported that the applicant’s primary level of cord lesion was at C3, even though the marked manifestations appeared to start at around T6. She had a spastic tetraparesis with more marked involvement of the lower limbs, compared to the arms, though she had upper motor neuron weakness in the arms and intrinsic hand muscle weakness. Dr Teychenné opined that her clinical picture had not improved over the approximately two years he had been assessing her.
On 4 September 2019, Dr Teychenné reported that EMG studies of the applicant’s lower limbs were normal. He was to review her in six months. It had been three years and she had not basically substantially improved over the past six months.
On 15 May 2020, Dr Teychenné again reported to the applicant’s solicitors. He referred to the applicant’s handwritten notes. It is not clear whether they are the same as the notes in evidence, but the history is largely consistent with that evidence.
Dr Teychenné has referred to a report of Dr Endrey-Walder dated 9 August 2016, which is not in evidence, but which he noted contained the history that the applicant continued wheeling 21 full wheelbarrows and ended up with a somewhat stiff neck and back.
Dr Teychenné reported that it was apparent on review of the history that the applicant’s initial symptoms started on 24 February 2016. She had symptoms that indicated she had a lesion at the level of the cervical spine, and it was apparent that this was the cause of the higher and lower spinal symptoms.
On 6 March 2016, the applicant had an exacerbation of her condition, to the extent that her legs went weak and collapsed. It was apparent that she had exacerbated her injury, as squatting by itself would not have induced a cervical spinal injury. Dr Teychenné opined that the cervical spinal injury had occurred on 24 February 2016, and that situation was exacerbated when the applicant squatted down to put her toast in the oven.
Dr Teychenné then referred to MRI scans of the applicant’s lumbar spine on 11 March 2016 and cervical spine on 31 July 2018. He opined that the spasm within her lumbar spine was associated with the cervical spasm. This was consistent with the fact that flexion of the neck would induce painful spasm over the lower lumbar spine.
Dr Teychenné had “picked up” on MRI that the applicant had evidence of disc osteophytes at C5/6, contacting the cord and causing flattening of approximately 20%; and a similar finding at C6/7. There were also osteophytes at T6/7, with cord flattening of 27% and at T10/11, with cord flattening of approximately 15%. The crucial flattening was at C5/6. This was consistent with the clinical finding of an incomplete cervical cord lesion, which was almost a complete cervical cord lesion. This was why Ms Hurley was tetraparetic and almost tetraplegic.

Dr Teychenné opined that it was probable that the applicant had disc osteophytes at the time of the injury, with cervical central spinal stenosis, as reported in a further MRI scan, and that as a result of them causing some flattening of the cord, and the stenosis, she was at significant risk of an incomplete cervical cord lesion, as a result of shovelling and twisting, as well as pushing the wheelbarrow.
Dr Teychenné further opined that the incident on 6 March 2016 was an exacerbation of the initial incomplete cord lesion that occurred on 24 February 2016. In his experience, it was not unusual for a significant proportion of patients to show evidence of progression of incomplete cord lesions. This is secondary to most probably biochemical changes induced by the initial injury that occurred on 24 February 2016. Patients undergo initial symptoms due to the initial injury, but then develop secondary biochemical changes, resulting in biochemical cord damage and progression of the incomplete cord syndrome. This has been well documented in numerous publications on incomplete cervical cord lesions.
On the balance of probabilities, Dr Teychenné considered that it was the event on 24 February 2016 and not that on 6 March 2016 that led to the applicant’s incomplete cervical cord lesion. As a result of the squatting, she increased the stenosis, as indicated by the MRI scan, on 6 March 2016, to exacerbate an already existing incomplete cervical cord lesion.
Dr Teychenné opined that at the time of the squat on 6 March 2016, the applicant had already expressed symptoms consistent with an incomplete cervical cord lesion, dating from the time of the shovelling on 24 February 2016, when she developed pain within the neck and lower back.
On 12 October 2019, in a report to the applicant’s solicitors, Dr Teychenné reviewed his previous evidence. He referred to the evidence of Narooma Physiotherapy Centre, Dr Sacoor, Dr Khurana, Dr Fuller, Dr Malhotra, Dr Tsai, Dr Ferris, Dr Gailani, Dr Huynh, Dr Bentivoglio and, again, Dr Endrey-Walder.
Dr Teychenné referred to Dr Endrey-Walder’s report. He noted that Dr Endrey-Walder indicated that the initial injury was at the workplace and the aggravation at home was a sudden increase of symptoms that the applicant had experienced in a much milder way until then.
Dr Teychenné again opined that it was apparent in his assessment of the clinical symptoms described by the applicant that she had a spinal cord lesion, most probably at a higher level than the cauda equina. He agreed with Dr Tsai that the feeling of weakness in the applicant’s legs did not come from her lumbar spine. It was most likely that it came from a higher level within the spinal cord.
Dr Teychenné referred to a report of Dr Gailani, which is not in evidence. Dr Gailani had indicated that Ms Hurley’s symptoms (apparently of her bowel) could be explained with cauda equina or nerve root pressure. In a report dated 22 May 2018, he apparently opined that the back injury when she was gardening caused weakness in both lower limbs in the saddle area and altered sensation.
Dr Teychenné opined that, in view of her tetraparesis, with most marked weakness within the legs and particularly in hip flexion, the applicant was not capable of any form of employment. Her episodes of urinary and bowel incontinence were additional factors prohibiting employment. Dr Teychenné considered her prognosis extremely guarded. He had not seen any major improvement over the two years he had been assessing her. He considered it probably unlikely that she would significantly improve. He assessed 56% WPI, a claim that is not now made in this Application.

Dr Grant L. Walker – Neurologist

Dr Walker was qualified by the respondent and reported on 12 November 2020.
Dr Walker recorded a history that on 24 February 2016, the applicant performed an unaccustomed activity, filling wheelbarrows of compost and moving it to elevated gardens. She believed she loaded about 20 wheelbarrows during the course of the day. Dr Walker has not recorded a history of any injury on that day.
Dr Walker then recorded that the applicant continued her activities until 6 March 2016, when, while bending over at home, she developed sudden back pain with pains down her legs, and apparently some difficulty with bladder function. He referred to her attendances at The Blue House Surgery on 26 February 2016 and 11 March 2016, and Ms Atteridge’s reports dated 10 March 2016 and 5 April 2016.
Dr Walker referred to the applicant’s subsequent investigations and the reports of Drs Khurana, Bentivoglio, Andrews and Carney.
The applicant complained that she had lost all feeling from the waist down. Her legs were weak and spasmed, and she could walk only a few metres unaided on flat ground. She had pain in her lower back. She had a loss of bladder and bowel control. She had had a urodynamic study and an anal manometry study but could not recall the results. She had trouble sitting for any length of time, so could not use a wheelchair.
Dr Walker noted that the applicant had physiotherapy in 2019 but not in 2020. She used medication, although not necessarily every day. She had attended a pain management course and had some pelvic floor exercises. She still exercised at home. She was able to drive but did not do so much. Her father helped, for example, with hanging washing, and her de facto partner and son provided other care.
On examination, Dr Walker noted that the applicant literally staggered four metres to sit on a chair. She had a postural tremor of her outstretched arms and felt that her arms were weak, although they seemed normal on formal assessment and her flexes were preserved. She would not give any effort when he attempted to assess strength in her lower limbs. Her knee reflexes were quite brisk, but her toes were down going. She had a non-organic loss of sensation on testing.
Dr Walker had been provided with Dr Teychenné’s reports. He referred to the “outrageous claim” of 56% WPI. He opined that “regrettably”, Dr Teychenné’s concept of “partial spinal cord lesion” is not one that is held by the general neurological community. Dr Walker rejected all his conclusions and comments.
Dr Walker summarised that on 24 February 2016, the applicant did some unaccustomed lifting in the course of her work. It was not until 10 days later that she developed acute back pain while bending over at home. At some point after, she developed a functional gait disorder, without any organic basis, as well as generalised pains and alleged sphincter dysfunction. Her imaging had failed to demonstrate any cause for the vast majority of her symptoms, except perhaps for some localised lower back pain.
Dr Walker diagnosed functional neurological disorder (non-organic gait disorder). He opined that the applicant had no fitness for any employment. The incapacity was not related to the work incident. No treatment was required in respect of the work incident. Functional neurological disorders (conversion disorders) are very difficult to treat. The applicant had had side effects with various pain medications and was not really able to undertake any physical treatment “in her current frame of mind”.

Dr Walker opined that the applicant had no physical condition that related to her employment. There was no impairment that related to her work injury. She had 5% impairment, which did not relate to her work, but more to her bending over at home 10 days later.
Dr Walker concluded that the vast majority of the applicant’s “disability” appeared to be non-organic. He strongly made the point that her bladder and bowel symptoms required input from other specialists, particularly as he did not have the urodynamic and anal manometry studies that had allegedly been done. Her main impairment was because she had developed a psychogenic conversion disorder. It was impossible to determine during a neurological assessment whether it was being embellished, although it had no direct relationship to any incident at work on 24 February 2016.
There is reference in the clinical records to referrals to Mr Chi Can Huynh for urodynamic studies and to Dr Omar Gailani for anal manometry. Dr Teychenné has referred to reports from them, but they are not in evidence.

SUBMISSIONS

Both parties have provided written submissions. I will not reproduce all the submissions.

Applicant

The applicant submitted that the dispute is limited to whether she sustained a disease injury to her cervical and/or lumbar spine; her entitlement to weekly compensation; and a claim for a general order for section 60 expenses. The claim for weekly compensation is made from 6 March 2016 ongoing, pursuant to sections 36 and 37 of the 1987 Act.

The applicant submitted that I would be satisfied that she has sustained disease injuries to her cervical and lumbar spines, pursuant to section 4(b)(ii), or in the alternative, section 4(b)(i) of the 1987 Act; and that she has been totally incapacitated for any form of employment as a result. She agreed that her pre-injury average weekly earnings (PIAWE) were $559.80, as calculated by the respondent in its Reply.

The applicant relied on the decision in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen), submitting that I need only feel a sense of actual persuasion that she has sustained injuries to her cervical and lumbar spines. She referred to her statement dated 10 May 2016, which is contemporaneous to the matters addressed. She submitted that an inference should be drawn that the evidence of Keren would not assist the respondent – Jones v Dunkel [1959] HCA 8; (1959) 101 CLR; and Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 at [63]. A similar inference should be drawn from the absence of evidence from Ms Phipps.

The applicant relied on the first two of the principles of State Government InsuranceCommission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003 (Oakley) to indicate there is only one injury; it is the one that has been claimed; and the incident at home does not constitute a novus actus or unrelated incident. These principles have been applied in Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396 (Aboushadi); and Ozcan v Macarthur Disability Services Limited [2020] NSWWCCPD 21 (Ozcan).
The applicant submitted there is one injury caused by the employment duties on 24 February 2016 and all the issues result from it. The incidents on 6 March 2016 and on 24 February 2016 are causally related. She submitted that the medical evidence demonstrates that she had already sustained an injury following the 24 February 2016 incident and before the 6 March 2016 incident.
The applicant referred to her journal entries as providing contemporaneous accounts of the circumstances of her injury. She submitted they provided clear indication that she had sustained injury as alleged and could not be criticised as suffering from issues of fallibility of memory with the passage of time. She referred also to her Claim Form and the evidence of other lay witnesses. She highlighted the absence from the applicant’s evidence of the statement from Ms Eaton provided to Verifact.

The applicant referred to the evidence from Narooma Physiotherapy Centre as confirming her lay evidence that she had treatment of her cervical spine on 3 March 2016. She submitted it confirmed she had injured her cervical spine. She relied on the clinical entries and Ms Atteridge’s reports. She also relied on the evidence of Dr Sacoor and the clinical records of the GP.

The applicant relied on the decisions in EMI (Australia) Ltd v Bes [1970] 2 NSWR at 242 (Bes); Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 at [94] (McGuiness); Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 at [383]; and Cruceanu v Vix Technology (Australia) Limited [2020] NSWWCCPD 7 at [153] as authority that medical science is prepared to state it was possible for her to have sustained injuries as alleged, and, based on the lay evidence, I am able to find that it is probable she sustained these injuries.

The applicant submitted that the histories recorded by Drs Khurana, Tsai and Fuller are consistent with her having sustained injury as a result of the duties she was undertaking on 24 February 2016 and, as a result, she sustained further damage on 6 March 2016. The focus was largely on her lumbar spine and not her cervical spine. It changed once Dr Teychenné began to treat her.

The applicant then referred to Dr Teychenné’s evidence. He has diagnosed a cervical spine injury. She submitted that his reports demonstrate that her issues were causally related to the injury. Based on the totality of the evidence, including Dr Teychenné’s, she submitted I ought to be satisfied on the balance of probabilities that she sustained injuries to her cervical and lumbar spines. Dr Teychenné’s medico-legal opinion also provides expert medical basis that the damage occasioned as a result of the injury on 6 March 2016 was causally related to the injury on 24 February 2016.

The applicant submitted that the opinion of Dr Teychenné is that she suffered from significant ongoing limitations; and she suffered a cervical spine injury in the form of an incomplete cervical cord lesion. He formed this opinion on the basis of the medical evidence and has provided elaborate reasons as to why the other doctors who have treated and/or examined her did not form that opinion. She submitted she suffered from underlying, asymptomatic issues in her spine, such as disc osteophyte, and the duties she undertook on 24 February 2016 caused an aggravation, exacerbation “etc” of same.
The applicant referred to the evidence of Drs Walker and Carney, relied on by the respondent. She submitted that Dr Walker’s opinion should be rejected as he has not provided any cogent reason why Dr Teychenné’s opinion was rejected; and he has not indicated what he means by “the general neurological community”. Accordingly, his opinion is a bare ipse dixit. He made no note of the applicant’s issues after the incident on 24 February 2016.
The applicant submitted that it is apparent that Dr Walker concluded that she sustained injury to her lumbar spine as a result of the incident on 6 March 2016. Based on the totality of the evidence and the first two principles of Oakley I would be comfortably satisfied that the injury and damage occasioned in the incident on 6 March 2016 were a result of the incident on 24 February 2016. Therefore, Dr Walker’s opinion would persuade me that she had sustained a lumbar spine injury, as well as a cervical spine injury.

The applicant submitted that Dr Carney opined that she sustained an injury to her lumbar and cervical spines either at work or at home. She submitted that, prima facie, this supports the proposition, noting the lay and medical evidence, that she sustained a cervical and lumbar spine injury as result of the 24 February 2016 employment duties. Dr Carney had not had regard to Dr Teychenné’s opinion, and the respondent had not sought a supplementary opinion from him.

The applicant submitted that Dr Carney’s opinion, to the extent that it does not support her having sustained disease injuries on 24 February 2016 or that the incident on 6 March 2016 was causally related to it, or that the effects of her injury continue, was not provided under a fair climate and should not be given any weight – Kubovic v HMS Management Pty Ltd [2015] NSWCA 315.

As regards the applicant’s work capacity, she submitted a finding ought to be made that she has been totally incapacitated for any employment from 6 March 2016. Dr Teychenné has opined that her total incapacity resulted from the injury on 24 February 2016. Although she had at times been certified with some capacity to work, this does not detract from the fact that she has not had capacity to undertake suitable duties, having regard to the definition and factors identified in section 32A of the 1987 Act.

The applicant referred to the evidence that the respondent refused to allow her to return to work because of her injury and no “real job” was available. She submitted the respondent bears the onus of demonstrating she had any capacity to work and had not put forward any evidence to demonstrate same, or what real jobs she could do or were available to her, or what she could have expected to earn. As Ms Atteridge has noted in her report dated 11 August 2016, she did attempt to return to work for two days, which caused an exacerbation and deterioration of her issues. This was also noted by Dr Sacoor in his COC dated 9 February 2017.
The applicant finally submitted that I ought to find she has sustained an injury to her cervical and lumbar spines as a result of her employment duties on 24 February 2016 and has been rendered totally incapacitated for any form of employment as a result. She also submitted that a general order for treatment expenses ought to be made.

In reply to the respondent, the applicant submitted that its submissions do not detract from her having sustained an injury, but support her contention that she sustained injury to her lower back and neck as a result of her employment duties. The respondent has not addressed the submissions pertaining to Oakley, Aboushadi and Ozcan.

The applicant submitted that when the unchallenged lay evidence is considered, it is clear there was no delay between the shovelling duties and her experiencing symptoms.

The applicant submitted that the respondent’s submissions about her journal entries ought not be accepted. The respondent has effectively submitted her evidence was fraudulent and/or that she acted fraudulently. These are serious allegations that have never been raised in the past. She was not on notice that such allegations would be made. She submitted this is a new matter in dispute and she is prejudiced because she is not in a position to meet it. The respondent should not be allowed to raise these issues at this juncture.

The applicant submitted that, pursuant to Finney Pty Limited t/as Cut Price Car Rentals v Chequer [2012] NSWPICPD 13, and the cases referred to therein, such as State of New South Wales v Hunt [2014] NSWCA 47, noting these matters involving serious misconduct were never put to the applicant, including in cross-examination, findings pursuant to the respondent’s submissions ought not be made.

The applicant submitted that the respondent’s submission regarding main contributing factor ought not be accepted, as it has accepted she experienced symptoms post the shovelling duties on 24 February 2016. She submitted there is no other reason for her to have sustained neck and back injuries.

Respondent

The respondent submitted that the applicant alleged myriad symptoms, some pleaded and others withdrawn, but all must be considered for the purposes of her capacity, assuming injury is accepted. Specifically, the applicant pleads injury to her neck and lower back on a “deemed date” of 24 February 2016. Her claim for 56% WPI of her nervous system was withdrawn, despite the fact that she places great reliance on the reports of Dr Teychenné, who supports those unclaimed injuries affecting her capacity for employment, in addition to the injuries relied upon.

The respondent submitted that the applicant has been examined by two neurosurgeons and two neurologists who, according to Dr Ferris, failed to find any significant pathology. The respondent referred to the evidence of Drs Khurana, Andrews, Walker and Carney. Dr Carney was of the view that the symptoms were best described as FNSD. The respondent referred to the records of the applicant’s nominated treating doctor that she was concerned about her cardiac health, was able to regularly drive to Canberra, and suffered ongoing severe health anxiety, with fixation on multiple minor symptoms.
As regards injury, the respondent primarily asserts that the applicant did not sustain injury to her back, in accordance with the section 74 notice dated 23 May 2016. She did not raise the issue of any injury to her neck until the commencement and later withdrawal of 2017 proceedings, before the insurer had an opportunity to admit or deny liability. A notice disputing liability for injury to the applicant’s neck was issued on 4 March 2021.

The respondent referred to the applicant’s evidence about the injury. She made no formal complaint of injury. She stated that she had pain in her back and, for the first time, neck. She did not report this to her doctor although she saw him two days after the alleged injury. She worked her normal shifts from 29 February 2016 without formal complaint. She relied on an innocuous comment to Ms Eaton. She did not have any significant symptoms until after the incident at home on 6 March 2016. The first COC was not issued until 29 March 2016 and the Claim Form was not completed until 15 April 2016.

The respondent submitted that the applicant has emphasised her dire cauda equina symptoms but attributed the delay in reporting her injury to the gradual onset of pain. It submitted I would draw an inference that the worsening of her condition was more likely due to the incident on 6 March 2016 than the shovelling on 24 February 2016.

The respondent submitted that the majority of the lay evidence adduced by the applicant in the Application to Admit Late Documents dated 12 August 2021 lends support to her shovelling dirt and/or compost at work on 24 February 2016, but the real issue is when she first complained of problems in her back or neck. Those complaints only arose after the incident on 6 March 2016. The respondent referred to the history recorded by Ms Atteridge. Her contemporaneous notes do not allude to the cause of her symptoms being shovelling dirt on 24 February 2016, but rather the incident on 6 March 2016.

The respondent submitted that the applicant’s journal entries are undated and unverifiable. They could have been written months after 24 February 2016 or 6 March 2016 and would not assist me in determining the cause of any injury. They can easily be read as having been made in hindsight.

The respondent submitted that the applicant’s ongoing incapacitating symptoms, for which there is no supporting radiological evidence, are referrable to the incident at home on 6 March 2016 and no other injury. The causative incident occurred at home and employment cannot be regarded as a [sic] main contributing factor, pursuant to section 4(b)(i) of the 1987Act. Therefore, I would not be sufficiently persuaded that the applicant sustained injury during the course of her employment with the respondent on 24 February 2016, and she has failed to discharge the onus of establishing injury.

The respondent referred to the applicant’s evidence as to her symptoms and disabilities. It submitted that her usual duties did not require her to be fully physically capable to undertake them in a range of employment scenarios in the early childhood space. Her bladder and bowel symptoms are significant and distinct from any symptoms or limitations in relation to injury to her neck or lower back.
The respondent made submissions about the applicant’s medical evidence and its own evidence. It submitted that Dr Teychenné is alone in his diagnosis of incomplete cervical cord lesion as a result of the injury on 24 February 2016 and that the applicant’s total incapacity for work is a result of that condition. A detailed analysis of the medical evidence “for and against” the applicant is unable to find any pathology that supports the applicant’s alleged ongoing incapacity. Her own evidence attributes it to her tetraplegia type symptoms, for which there is a complete absence of neurological support.
The respondent submitted that I would be persuaded primarily by the opinions of Drs Walker and Carney, in addition to the views expressed by Drs Khurana, Ferris, Fuller, Tsai and Andrews.
The respondent agreed that the applicant’s PIAWE was $595.55 per week, as claimed in the Application. It submitted that its medical case is that the applicant would have been incapacitated for a matter of a few weeks; and referred to the evidence of Dr Carney. The applicant at no stage has stated that she is unable to work due to the injury to her back and neck.
The respondent submitted that, considering the injury to the applicant’s neck and back, and in accordance with the realities of the labour market in which she is to be engaged (Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206) (Lawarra Nominees) she has capacity to work up to six hours per day, three days per week in an early childhood setting from 7 April 2016, ongoing, based on a COC dated 19 April 2016. Any ongoing incapacity thereafter would be attributed to the bowel and bladder issues, together with neurological symptoms, for which there is no support.
The respondent’s primary contention was that the applicant has failed to discharge the onus of establishing that her employment was the main contributing factor to any injury. There should be an award for the respondent.
Alternatively, the respondent submitted that, if it is accepted that the applicant has discharged the onus, the source of her ongoing incapacity is unrelated to any injury to her neck or lower back supported by radiological or medical evidence, and Dr Teychenné’s opinion is a “lone voice in the wilderness”. It submitted I would not accept that opinion and be persuaded by the plethora of medical evidence from “both camps” that is at a loss to explain the applicant’s ongoing incapacity. There would be minimal, if any, loss for a period of approximately 12 weeks or less, when the symptoms related to any neck and lower back injury would be expected to have ceased.

SUMMARY

Injury

Applying the principles of Nguyen, I am satisfied that the applicant sustained injury to her back and neck arising out of or in the course of her employment with the respondent on 24 February 2016.
The applicant has provided lay evidence from several witnesses, including some who may be expected to have no interest in the matter, that support her claim that she was shovelling dirt at the pre-school on 24 February 2016, and she complained about symptoms in her back and neck after doing so. It is not the case, as submitted by the respondent. that she first complained of symptoms after the injury on 6 March 2016. The evidence of Ms London, Fay, Ms Lamb, Mr Negus and Dr Fridley is to the contrary.
Ms Eaton, who was employed by the respondent, stated that she had told the investigator engaged by Allianz that the applicant had mentioned her back was sore from moving soil for the planting evening. She knew the conversation occurred between the planting day and Ms Hurley taking time off with a sore back. It is unclear if she provided the investigator with a formal statement, but none has been put in evidence by the respondent.
The dispute notice issued by Allianz on 23 May 2016 refers only to “factual statements” as being attached, with no detail of by whom they were made. There is no evidence from Ms Phipps or Ms Spooner, although the applicant responded to their evidence in her statement dated 29 May 2017. The dispute notice issued by GIO on 4 March 2021 stated that it relied on “All documents exchanged between the parties in WCC proceedings 2730/17”. Copies of those documents were not attached, because they had previously been “shared with” the applicant.
The Claim Form is dated 18 April 2016. It was completed before Allianz disputed the applicant’s claim. It is possible that the applicant submitted the Claim Form because Allianz did not commence provisional payments of compensation, but that is not clear from the evidence. In any event, the applicant named witnesses to the injury and provided an explanation for the delay in reporting it.
The applicant also relied on her journal entries, which support her evidence about the circumstances of the injury on 24 February 2016. I do not accept the respondent’s submissions about the entries. The respondent did not submit that the applicant had acted fraudulently, but rather that the entries could have been written months after the events occurred and could easily be read as having been made in hindsight. That was not put to the applicant, and it is not an inference I am prepared to draw.
The applicant has provided an explanation for the clinical records on 26 February 2016 not including reference to the injury on 24 February 2016. Her evidence is that her back and neck were still sore when she returned to work on 29 February 2016, and she took care not to aggravate it. Ms Eaton’s evidence is supportive of that evidence.
There is no evidence from Keren, from whom the applicant said she sought assistance during this period. The applicant has invited me to draw a Jones v Dunkel inference from the absence of her evidence and that of Ms Phipps. The applicant has responded to a statement from Ms Phipps (and from Ms Spooner). It is not clear whether a statement from Keren was obtained or served. I am not prepared to draw a Jones v Dunkel inference from the absence of evidence from either witness. Ms Phipps’ evidence was available to the applicant and she could have relied on it had she wished to do so.
Ms Atteridge’s evidence is that the applicant was already a little stiff when she bent to the oven on 6 March 2016. She was provided with a history of the applicant’s activities on 24 February 2016, and her report dated 5 April 2016 supports them as a likely precipitating factor for her symptoms.
I have referred above to the histories provided by the applicant to the numerous doctors she has consulted. The history is consistent with her evidence of an injury to her neck and back on 24 February 2016.
In the matter of McGuiness, Spigelman CJ referred at [94] to the decision of Herron CJ in Bes, where his Honour said:
“Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.”

Spigelman CJ also said at [83]:
“The law in Australia is, in my opinion, as stated by Glass JA in this Court in Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190 at 197:
‘The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways, or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence.’” (citations omitted).
In the matter of Military Rehabilitation and Compensation Commission v May [2016] HCA 19, Gageler J said at [80]:
“The Full Court was right to point out in the decision under appeal that the Act and the case law do not ‘preclude an injury being established on the basis of an account by a claimant of the disturbances to his or her body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion’ and to observe that ‘[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case’. But the Full Court was wrong, in my opinion, to infer that the Tribunal proceeded on a different basis.”

Apart from the evidence of the applicant, and the other lay evidence, the applicant has the support of Dr Teychenné, who has had the advantage of treating her for the last four years, has examined her on many occasions, and has performed various tests. He is well placed to provide an opinion as to whether she has sustained injury and the nature of that injury. I will discuss his evidence further below.
Even Dr Carney, who diagnosed FNSD, provided some support for the applicant’s claim. He opined that the condition is sometimes precipitated by a physical injury. It was possible that a physical injury at work, or in his view more probably the injury at home, precipitated the onset of FNSD.
Having determined that the applicant sustained injury on 24 February 2016, it is also necessary to consider whether there has only been one injury, or whether the incident at home constitutes a novus actus interveniens or an unrelated incident.
The respondent relies on the authority of Oakley, as applied in Aboushadi and Ozcan.
In Aboushadi, Mason P, as he then was (Meagher JA and Barr AJA agreeing) found that the trial judge had correctly applied Fishlock v Plumber [1950] SAStRp 18; [1950] SASR 176, which was said in Oakley to be authority for the first two of the following three propositions:
(a)     where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence;
(b)     where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence, and
(c)     where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.

The applicant submitted that the medical evidence demonstrates that she had already sustained an injury following the incident on 24 February 2016 and before the incident on 6 March 2016. She referred to the COC issued by Dr Sacoor on 29 March 2016.
Dr Teychenné opined that it was apparent on reviewing her history that the applicant’s initial symptoms started on 24 February 2016. Her symptoms indicated that she had a lesion at the cervical spine. The injury was exacerbated on 6 March 2016, as squatting (which is how the applicant described her action) by itself would not have induced a spinal cord injury.
Dr Teychenné has explained his reasoning. He concluded that on the balance of probabilities, it was the event on 24 February 2016 and not on 6 March 2016 that led to the applicant’s incomplete cervical cord lesion. As a result of squatting, the stenosis was increased, and the already existing lesion was exacerbated. In his experience, it was not unusual for patients to show evidence of progression of incomplete cord syndrome.
The respondent has described Dr Teychenné as a “lone voice”, but he is the voice of the specialist who has had the longest treating relationship with the applicant. He also apparently had access to the reports of numerous other practitioners who have either treated or examined Ms Hurley, and his opinion has not altered.
I accept that the applicant had already sustained injury to her cervical and lumbar spines on 24 February 2016 when the incident at home occurred on 6 March 2016. Having regard to the decision in Oakley, her further injury resulted from the subsequent accident, which would not have occurred had she not been in the physical condition that resulted from the work injury. I determine that there has been only one injury.
Dr Teychenné opined that the applicant probably had pre-existing disc osteophytes at the cervical and thoracic spines. This caused flattening of the cord, and as a result of this flattening, and the stenosis, she was at significant risk of an incomplete cervical cord lesion. The lesion at the level of the cervical spine was the cause of the higher spinal symptoms and the lower spinal symptoms. I am satisfied on his evidence that the applicant sustained injury to her cervical and lumbar spines, pursuant to section 4(b)(ii) of the 1987 Act, in that the injury consists of the aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease. I will refer in these reasons to aggravation for convenience.

The applicant must also establish that her employment was the main contributing factor to the aggravation of the disease. The cases on “main contributing factor” were considered by Deputy President Snell in AV v AW [2020] NSWWCCPD 9.
Snell DP summarised the discussion as follows:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than it was in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.” (at [77]-[78]).
Apart from a reference in the GPs’ clinical records on 11 March 2016 to back spasms 10 years before, there is no evidence that the applicant had symptoms in her cervical or lumbar spines before 24 February 2016. She described herself as having previously lived an active lifestyle. Dr Carney described her as appearing to have been very fit and active. She had already sustained injury when the incident at home occurred on 6 March 2016. I am satisfied that her employment was the main contributing factor to the aggravation of the disease.

Incapacity

The applicant has submitted that she has had no capacity for work since 6 March 2016. She pointed out that Dr Teychenné opined that her total incapacity for employment resulted from the injury on 24 February 2016.
The respondent submitted that its medical case is that the applicant would have been incapacitated for a matter of a few weeks. It further submitted she has had capacity to work up to six hours per day, three days per week, in early childhood work, from 7 April 2016.

Section 32A of the 1987 Act provides that
"suitable employment”, in relation to a worker, means employment in work for which the worker is currently suited--

(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and

(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.

The applicant was certified as fit to return to work on suitable duties, for 18 hours per week, in April 2016. Her evidence is that no suitable work was available to her.
On 8 July 2016, Dr Sacoor certified that the applicant would be fit to return to work on 18 July 2016. She would return for three half days per week, until she felt able to increase to full working days. She should take appropriate precautions to avoid re-injury or aggravation of her back condition.
The clinical records of The Blue House Surgery recorded on 4 August 2016 that the applicant had an exacerbation of her low back injury after two half days at work. Dr Carney recorded that she returned to work because she was financially desperate.
While there have been occasions on which some improvement in the applicant’s symptoms have been recorded, there have been consistent complaints of leg weakness, sciatica, reduced mobility and bowel and bladder dysfunction. Dr Carney, while concluding that she had FNSD, nonetheless opined that her condition precluded a return to her pre-injury duties. More recently, Dr Teychenné has opined that she was not capable of any form of employment.
In the matter of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, Deputy President Roche considered the extent to which the application of authorities such as Lawarra Nominees has been affected by the change in the meaning of “suitable employment”.
Roche DP said:
“… In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment…” (at [59]-[60])
The reference to the “eye of the needle” test is a reference to the decision of Mason P, as he then was (Beazley JA as she then was, and Grove AJA agreeing) in Moran Health Care Services v Ivy Alice Woods [1997] NSWSC; (1997) 14 NSWCCR 499, in which the Court of Appeal applied the reasoning in Lawarra Nominees.
In Lawarra Nominees, Mahony P with whom Handley and Powell JJA agreed, upheld a finding that the worker was totally incapacitated for work. His honour said (at 213):
“Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: what is the relevant labour market, i.e. what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physically able to do.
In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income...the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what [the worker] could do if the work available to him would allow him to...generally work, as in his condition, he would fairly wish to work...The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which he is to be engaged.” (Emphasis added).

The applicant’s symptoms have been well-documented in the medical evidence. She has been employed in childcare for about 20 years and her qualifications are in that field. She is now 54 years old and has effectively been unemployed for over five years. Her return to work plan was, according to her evidence, that she needed to be fit for her normal duties. There is no evidence of any rehabilitation services.
The applicant’s only and brief attempt to return to work with the respondent was unsuccessful and caused an increase in her symptoms. I accept and determine that she has had no current work capacity from 6 March 2016; and is entitled to an award of weekly benefits on that basis.

Weekly benefits and medical expenses

The applicant agreed that her PIAWE was $559.80, as calculated by the respondent in the Reply. The respondent agreed that the PIAWE was $595.55 per week, as claimed in the Application. I have accordingly calculated the weekly benefits in accordance with the claim. I will give the parties liberty to apply with respect to the award.
Neither party made any submissions with respect to the application of section 38 of the 1987 Act. The applicant submitted that the claim for weekly benefits was made pursuant to sections 36 and 37 of the Act. However, as I have determined that the applicant has no current work capacity, I propose to make an award pursuant to section 38 of the Act, as it is claimed in the Application. Similarly, neither party has made any submission with respect to the application of section 39 of the 1987 Act. The period of 260 weeks from the date of commencement of weekly benefits expired on 28 February 2021.
There will accordingly be an award for the applicant as follows:
(a) from 6 March 2016 to 5 June 2016 at the rate of $565.77 per week, pursuant to section 36 of the 1987 Act;
(b) from 6 June 2016 to 2 September 2018 at the rate of $476.44 per week, pursuant to section 37 of the 1987 Act, and
(c) from 3 September 2018 to 28 February 2021 at the rate of $476.44 per week, pursuant to section 38 of the 1987 Act.

The applicant is entitled to an award for payment of her medical expenses, pursuant to section 60 of the 1987 Act.
The parties have liberty to apply with respect to the award of weekly benefits.
The orders are as set out in the Certificate of Determination.

[2021] NSWPIC 408

13 October 2021