Jones v Garden Village Port Macquarie
[2025] NSWPIC 68
•4 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Jones v Garden Village Port Macquarie [2025] NSWPIC 68 |
| APPLICANT: | Kellie Jones |
| RESPONDENT: | Garden Village Port Macquarie |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 4 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; dispute in relation to injury to the lumbar spine; respondent denied liability on the basis that the applicant had not suffered injury to her lumbar spine in the course of employment due to a lack of contemporaneous reporting and medical evidence; applicant claimed aggravation of disease process in the lumbar spine as a result of her workplace activities as a catering assistant; Held – applicant sustained ‘injury’ by way of aggravation in the course of employment section 4b(ii); referred to AV v AW, Federal Broom Co Pty Ltd v Semlitch, Kooragang Cement Pty Ltd v Bates, and Murphy v Allity Management Services Pty Ltd; matter remitted for assessment by a Medical Assessor to assess impairment of the lumbar spine and non-disputed cervical spine injury. |
| DETERMINATIONS MADE: | The Commission determines: 1. By consent, amend the Application to Resolve a Dispute to plead “disease” of the lumbar spine. 2. The applicant suffered “injury” to her cervical (neck) and lumbar (back) spine within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). 3. The matter be remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 1 September 2020 Method of assessment: whole person impairment Body system/part: cervical spine, and lumbar spine 4. Documents to be referred to the Medical Assessor are to include (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Application to Lodge Additional Documents filed by the respondent on A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Kellie Jones (the applicant) claims lump sum compensation for neck and back injuries arising out of her employment as a caterer with the Garden Village, Port Macquarie.
The respondent’s insurer accepted the claim for injury to the neck but denied liability for the back maintaining there was no evidence of injury, either discrete or consequential.
The above dispute resulted in an application to the Personal Injury Commission (Commission). The usual case management pathway was exhausted and the matter proceeded to arbitration. Mr Stockley of counsel instructed by Ms Thurgood represented the applicant. Mr Stiles of counsel instructed by Mrs Tancred represented the respondent.
Mr Said appeared on behalf of the insurer.Parties agreed the only issue requiring determination was “injury” to the back and subject to findings, the lump sum (impairment) dispute would require determination by a Medical Assessor.
No oral evidence was called. In my discernment, I had regard to the Application to Resolve a Dispute (ARD) and annexures, the Reply and annexures and an Application to Lodge Additional Documents (ALAD) filed by the respondent on 6 January 2025.
Prior to arbitration, the applicant sought leave to amend the ARD to plead disease injury to the lumbar spine. The respondent did not object. The deemed date of injury was agreed to be 1 September 2020.
EVIDENCE
Statement evidence
In her statement dated 16 October 2024,[1] the applicant indicated;
(a) she started her work as a caterer in January 2019, on a permanent part time basis (20 hours). This involved preparing meals for up to 50 people. It included tasks of food preparation, food service, cleaning and stores work;
(b) the work was physical requiring lifting long trays both in and out of the ovens which were at shoulder height. Food preparation tasks required bending of the neck. Her lower back flexed forward when serving food and washing up;
(c) pain in the neck and back commenced slowly and increased over time. Her neck troubles required discectomy and fusion at the C5/6 and C6/7 level on
15 April 2021 under the care of Dr Wilson. The procedure provided relief in the left arm but neck pain continues;(d) back pain has been constantly present. The “neck pain outweighed the pain I was suffering in my back”. When away from work following her surgery, back pain improved. Pain in the back was masked by the use of medication for the neck;
(e) a return to work on light duties in June 2021 resulted in symptoms in the neck and back despite avoiding repetitive lifting and bending. Regardless, she continues to work and is careful with tasks/positions, and
(f) symptoms in both areas have significantly interfered with activities of daily living both domestically and professionally. Pain impacts on sleep and mood.
[1] Folio 2-6 of the ARD.
Medical evidence
Matt Hempsell, osteopath at One Health reported to Dr Zhang on 2 January 2020.[2] He referred to an initial letter dated 10 December 2019 (not in evidence) but states that following clinical examination, he diagnosed nerve root aggravation in the lumbar spine and suspected a central disc bulge due to initial left leg symptoms which had subsided but were not present in the right leg. He postulated symptoms were of an L4/5/S1 nature but neurological examination did not confirm this. He reported osteopathic treatment provided relief but “due to increased work duties over the holiday period, has presented this week again in a very acute state”. (my emphasis)
[2] Folio 40 of the ARD.
MRI of the lumbar spine on 25 September 2020[3] (five days after the date of claim for injury to the neck) confirmed findings of shallow scoliosis to the right at L3/4 and to the left at L4/5. Asymmetrical severe disc endplate changes, moderate stenosis and contact mild deformity of the right L3 with partial compression of the left L4 root within its foramen was recorded.
[3] Folio 29 of the ARD.
Erin Reardon, physiotherapist reported on 8 September 2021 confirming there had had been an increase in stamina due to weekly physiotherapy appointments but the process was slower than expected due to the “frequency of pain flare ups… this has included left upper trapezius/left arm pain, right buttock pain/low back pain”.
Erika Stevenson, rehabilitation consultant, in her Activities of Daily Living Assessment report[4] dated 20 March 2021 reported the applicant complained of pain in her right leg and that her “lower back is playing up again because she is favouring her neck.” She recorded she had “sciatica really bad last year and worked through it” and attended osteopathy treatment at One Health.
[4] Folio 56 ARD.
In a report dated 8 September 2021,[5] Erika Stevenson recorded at case conference with
Dr Potter on 23 July 2021, the applicant confirmed she tolerated her return to work but is exhausted after the completion of a four hour shift and experiences “increased pain in her lumbar spine and shoulders” and attributed this to “using a lot of muscles not used for a while”. It was also recorded that she “could barely walk” a few weeks ago and attributed this to pre existing sciatica but that the current suitable duties were physically light but require “lots of turning and twisting” and she “hobbles out of work”.[6][5] Folio 66 ARD.
[6] Folio 67 ARD.
On 30 September 2021,[7] in her progress report, Erika Stevenson recorded that over the “previous three weeks there had been a flare up of upper trapezius, upper back, low back and right buttock pain after her shifts were increased from three hours to five hours”.
[7] Folio 71 ARD.
Clinical notes of the Lachlan Medical Centre disclose the following regarding back complaint;
(a) on 18 September 2019 the applicant told Dr Zhang she “had a fall at a beach three weeks ago after slipping on a wet surface”. Tenderness was noted in the T6 and right sacroiliac region. It was also recorded she worked at the Garden Village where there was heavy lifting;[8]
(b) on 20 November 2019,[9] the applicant presented to Dr Zhang with lower back pain radiating into the left lower limb around the buttock and thigh. A diagnosis of “back pain with radiculopathy” was made. Physiotherapy, rest, exercise, Celebrex and Lyrica were prescribed;
(c) on 30 January 2020, [10] Dr Potter recorded the back pain had settled and core strengthening was discussed for prevention of re injury;
(d) on 11 September 2020, Dr Heise recorded[11] flare of chronic shoulder, neck and back pain for the past week. Physiotherapy and medication was prescribed. Investigations were ordered;
(e) on 30 September 2020, Dr Potter recorded[12] left leg numbness and weakness despite analgesia, and
(f) on 9 October 2020, Dr Potter documented[13] still has radicular symptoms in arm and leg. Neurosurgeon appointment was arranged and a WorkCover Certificate issued.
[8] Folio 104 ARD.
[9] Folio 105 ARD.
[10] Folio 105 ARD.
[11] Folio 110 ARD.
[12] Folio 112 ARD.
[13] Folio 113 ARD.
Dr Hyde-Page, orthopeadic surgeon, was qualified by the applicant. The following opinions were expressed with regards to the back, and I note that no radiology was assessed;
“she started developing neck pain in 2020 and first reported this to her GP on the 11 September 2020… at the same time she had developed persistent low back pain…
Towards the end of 2022, she started to develop some low back pain shooting into her left leg….was organized to have osteopathic treatment. She has found wearing a back brace has been helpful. A lot of her back pain has improved now[14]…
She presents today with some muscle guarding associated with her lumbar spine stiffness but no radiculopathy.”[15]
[14] Folio 18 ARD.
[15] Folio 21 ARD.
In his report dated 1 October 2024 he continued:
“she aggravated her previous lumbar back pain towards the end of 2022, when she was back working[16]…
I also noted under past health that she developed low back complaint and saw her GP in 2019 and the problem was work related. It was at this stage she got a back brace. It appears that this low back complaint recurred at work as a consequence or her cervical spine condition…
The lumbar spine complaint came on as a consequence of the nature of her employment and had been present before her neck complaint developed in 2020. It got worse subsequently. It appeared to become more symptomatic as a consequence of her cervical spine condition”[17]
[16] Folio 24 ARD.
[17] Folio 25 ARD.
Respondent’s evidence
Attached to the Reply was the original claim form,[18] a questionnaire completed by Dr Potter, general practitioner on 26 October 2020,[19] multiple imaging reports, reports of Dr Peter Wilson, (neurosurgeon), and multiple Certificates of Capacity.[20] These documents are silent on back complaint, a matter emphasised by the respondent.
[18] Folio 4 Reply.
[19] Folio 11 Reply.
[20] Folio 112 to 117 Reply.
The initial certificate of capacity nominates a date of injury as 1 September 2020 but states “chronic evolving injury not single date… repetitive wear and tear of neck joints causing inflammation. Work involves working with head lowered for prolonged periods”.[21]
[21] Folio 112 Reply.
Dr Stening, neurosurgeon reported on 11 December 2020.[22] His opinion was confined to the neck but overall his report expresses an appreciation for the heavy nature of the work engaged by the applicant. He concluded “her pre injury duties have exposed her to the relevant physical forces that have altered the natural history of her neck condition causing spinal cord trauma”.
[22] Folio 12 Reply.
Dr Diebold, orthopaedic surgeon reported on 13 March 2024. He records the undertaking of repetitive manual duties with the onset of neck and back pain in about September 2020 without any specific precipitating incident. The onset of sciatica whilst working for the respondent was noted along with the subsequent osteopathy and lumbar brace. He concluded that it was plausible that the nature and conditions of employment aggravated pre-existing arthritis in the cervical spine. He diagnosed non specific lower back pain and considered it was unrelated to employment as “scientific literature is against a relationship between physical work duties and chronic lower back pain”.[23] Assessment of radiology was limited to the cervical spine only.
[23] Folio 22 Reply.
Submissions
In summary, the applicant submitted;
(a) the applicant is credible and her statement should be accepted in full. Her symptoms have been consistently reported to all who have examined her;
(b) activities nominated as part and parcel of her catering role are such that would have easily contributed to the aggravation of the pre existing disease which has been identified in not only the neck but also the back;
(c) the applicant has presented to her treating doctor and undergone imaging with regards to the back. It is accepted that there are few complaints in the records as the focus was on the neck, surgery and rehabilitation. Further, the treatment for the neck, particularly medication, masked back symptoms, and
(d) there is evidence that the applicant suffered sciatic flare ups whilst employed by the respondent, treated with a brace, osteopathy and modification of duties. These were not spontaneous flares and were related to her employment tasks, acknowledged to be repetitive and heavy by multiple specialists.
In summary, the respondent submitted:
(a) the diagnosis of any condition in the back is unclear;
(b) there is a paucity of complaints to the treating general practitioner. There is however a record that the applicant fell at the beach in September 2019 although the sequelae is unknown;
(c) the bulk of the contemporaneous evidence relates to the neck including the original certificates of capacity;
(d) the applicant’s qualified evidence does not refer to any radiological assessment of the lumbar spine and whilst the reports refer to underlying pathology, it has not been identified;
(e) the medical evidence is confusing as it suggests that the applicant has suffered a consequential condition to the back as well as an injury with the consequential claim not being established in submissions, and
(f) the applicant seeks to rely on ‘disease’ injury but it is unclear what the ‘disease’ is and if in fact it was aggravated in the course of employment as required by the 1987 Act.
In response, the applicant submitted:
(a) the failure of the certificates of capacity to nominate a back injury is irrelevant. The certificates were issued to reflect the incapacity arising from the predominant neck symptoms, surgery and rehabilitation. It is not suggested that the applicant was incapacitated from her work on account of any back symptoms. Injury and incapacity are two different concepts, and
(b) the applicant maintains she suffered injury to the back. The claim of consequential condition is not pressed.
APPLICATION OF THE LAW, FINDINGS AND REASONS
Injury is defined in s 4 of the 1987 Act (relevantly):
“‘injury’
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’ , which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
In assessing injury, key authorities establish:
(a) in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological/physiological change: Castro v State Transit Authority (NSW),[24] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[25] “the word ‘injury’ refers to both the event and the pathology arising from it”;
(b) “disease”, – s 4(b) of the 1987 Act, has been described as “any abnormal physical or mental condition that is not purely transient”[26] (and it is now well established that a relevant aggravation injury (which for present purposes shall include aggravation, exacerbation or deterioration) need not have any effect on the underlying pre-existing disease itself and that it will be sufficient if the symptoms of the disease have been increased in the course of employment;
(c) the issue of causation must be determined based on the facts in each case and the application of the commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates,[27] (Kooragang), and
(d) the applicant bears the onus of establishing injury on the balance of probabilities, to the extent that I must feel an actual persuasion or comfortable satisfaction of the existence of a fact - Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen).
[24] [2000] NSWCC 12; 19 NSWCCR 496.
[25] (2003) 25 NSWCCR 422, [429].
[26] per Windeyer J Commissioner for Railways v Bain [1968] HCA 5.
[27] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), at [463].
What does main contributing factor mean?
This critical term is not defined in the 1987 Act but has been the subject of much authority which establish the following key principles;
(a) the test of “main contributing factor” is one of causation which involves consideration of the evidence overall and further in a matter involving a disease injury, it is necessary that the employment be the main contributing factor to the aggravation and not to the underlying disease process as a whole (AV- AW);[28]
(b) the employment need only be the main contributing factor to the relevant aggravation etc and need not contribute to the causation or the pathology of the underlying disease itself (Rootsy), (Murray) (Hancock);[29]
(c) moreover, for aggravation etc to be found it is not necessary for the employment to have caused actual worsening in the pathology of the disease itself (although this will often be the case); it will be sufficient if there has been an increase in symptoms and restrictions resulting from the disease (Semlitch),[30] and
(d) Aggravation or exacerbation of a disease occurs where the experience of a disease by the patient is increased or intensified by an increase or intensifying of symptoms (Kelly).[31] On the other hand, it has been held that the mere manifestation of, or an increase in, symptoms in the course of employment will not necessarily constitute an aggravation injury if such symptoms are the ordinary consequence of the underlying condition (Beattie).[32]
[28] AV v AW [2020] NSWWCCPD 9
[29] Rootsey v Tiger Nominees Pty Ltd [2002] 23 NSWCCR 725, Murray v Shillingsworth [2006] NSWCA 367 and Rural Press Ltd v Hancock [2009] NSWWCCPD 160.
[30] Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626.
[31] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71.
[32] Commonwealth of Australia v Beattie [1981] 35 ALR 369 (Beattie) and Albury City Council v Gunton [2011] NSWWCCPD 68.
Did the applicant suffer “injury” to the back?
Assessment of this matter was not straight forward and the initial position of the respondent was valid. I found the qualified evidence to be lacking and unsatisfactory especially given the failure to refer to MRI studies of the back undertaken just five days after the claim, which would support the applicant’s claim of symptoms at that time. I have afforded these opinions (as they relate to the back), limited weight, although will acknowledge they are helpful in that they have exposed the applicant’s consistency in presentation throughout the history of the claim, causing me to find favourably regarding credit.
The respondent understandably also had difficulty responding to the applicant’s case given the ambiguity contained in the qualified evidence, which suggests that the applicant suffered aggravation and had developed a consequential condition. At arbitration, applicant’s counsel did not press the consequential condition argument.
I have noted with caution the respondent’s argument the applicant had a fall at the beach in 2019 which has not been disclosed in either her statement or to those who have assessed her. Careful assessment of the chronology reveals the fall occurred in early September 2019 with the area of concern being the thoracic spine and not the lumbar spine as claimed.
The respondent’s main argument was the paucity of contemporaneous complaints concerning the back. I find the applicant explained the lacuna plausibly, that is, her focus was her neck symptoms which caused significant incapacity, surgery and protracted rehabilitation. Further, treatment to the neck went some way in disguising symptoms in her back. I also find that following analysis of the chronology, that the gap in evidence is not as wide as submitted. This is because the applicant had made consistent complaints to the rehabilitation case provider. Such complaints were scantily recorded and buried within the sequential case management reports.
The respondent was critical of the lack of diagnosis. This criticism aligns with the omissions of the qualified medical specialists who unfortunately did not consider the radiology which showed severe disease processes at the L3/4 and L4/5 levels and overlooked the view of the osteopath who as early as 2020 diagnosed nerve root irritation and suspected a central disc bulge with symptoms at the L4/5/S1 level.
Dr Diebold accepted the applicant suffered an aggravation to the disease process in her neck due to her employment activities but did not extend those views to the back presumably due to the lack of investigations and non specific complaints. Given his findings relating to the neck, it would be difficult to now argue the documented disease process in the back, which was also exposed to the same workplace stressors/activities or ‘micro traumata’ would have been immune from similar aggravation. In fact, such argument would defy common sense. I appreciate this medical opinion is not before me, and I must exercise caution in regard to medical commentary, (such falling outside of my jurisdiction), although the observation is relevant given the history of workplace activities and the fact that multiple assessors including Dr Stening and Dr Diebold have acknowledged the heavy nature of the work has resulted in aggravation to the underlying disease process in the spine (neck).
Dr Diebold reinforced his opinion regarding causation as ‘scientific literature is against a relationship between physical work duties and chronic lower back pain’. This single statement in isolation (albeit likely unintentionally) disregards/discounts the body of law and precedent in this near century old jurisdiction. Further, despite relying on the science he fails to reconcile how the current medical presentation aligns with any metadata that formed the basis of the “literature” and so I must afford his opinion limited weight.
Overall, I find the applicant has established, on the balance of probabilities and with a degree of actual persuasion and affirmative satisfaction that her employment was a main contributing factor to the aggravation of her disease condition in the back with reference to the 1987 Act. This is largely due to the contemporaneous complaints recorded in paragraphs 8 to 14 of this decision, relevantly;
(a) treatment was sought by the applicant in early 2020 where the osteopath suspected a central disc bulge with symptoms arising from the L4/5/S level, such symptoms arising “due to increased work duties over the holiday period”;
(b) symptoms were sufficient to have resulted in radiological investigation of the back as early as 25 September 2020 (only five days after the claim for injury to the neck);
(c) work duties resulted in increase in back pain due to “lots of turning and twisting” and she “hobbles out of work” recorded in July 2021;
(d) the documented flare up in symptoms in the low back when shifts were increased from three to five hours, and
(e) there were complaints of back pain to the treating doctor as early as November 2019.
The findings are made on the basis of consistent reporting of symptoms (albeit not frequent) initially to the osteopath, rehabilitation officer and her general practitioner. Importantly, I am satisfied and find there is no other established cause for the back symptoms apart from the aggravating workplace duties which have been acknowledged as being repetitive (particularly with regards to the injury to the neck and for which liability has been accepted).
I also undertook a commonsense evaluation. This involved global scrutiny of the chronology, medical evidence, factual statements and review of the respondent’s medical case (which I found to be unpersuasive). I have found no evidence that would disrupt or displace the commonsense evaluation.
Finally, I am satisfied that the above analysis of the chronology, medical evidence and factual statements clearly establish the workplace duties have aggravated the underlying disease process resulting in an increase in symptoms and restrictions (Semlitch). The evidence also establishes that symptoms in the back are not the result of the underlying condition alone but rather were aggravated in the course of her employment (Beattie), increased and intensified by work activity (Kelly). Therefore the applicant has sustained back injury as defined in the 1987 Act.
SUMMARY
For the above reasons, I make the findings and orders set out on page 1 of this Certificate.
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