Leonard v Allity Management Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Leonard v Allity Management Services Pty Ltd [2024] NSWPIC 335
APPLICANT:	Terri Leonard
RESPONDENT:	Allity Management Services Pty Limited
MEMBER:	Anne Gracie
DATE OF DECISION:	25 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 60; consideration of applicant’s statement, medical reports and other treatment records, and claim correspondence; consideration of whether the work-related aggravation, acceleration and/or exacerbation of the underlying disease condition of the applicant’s lumbar spine has ceased and as such, is the medical treatment recommended as reasonably necessary as a result of an injury as required by sections 59 and 60; Murphy V Allity Management Services Pty Ltd, Kooragang Cement Pty Ltd v Bates, Taxis Combined Services (Victoria) Pty Ltd v Schokman, Sutherland Shire Council v Baltica General Insurance Co Ltd, Diab v NRMA Limited considered; Held – the applicant is entitled to compensation pursuant to section 60; the surgery proposed (an anterior lumbar discectomy and interbody fusion at L5/S1 and a posterior decompression at L3) is a reasonably necessary medical treatment as a result of the continuing effects of the injury the applicant sustained as a result of the aggravation, acceleration and/or exacerbation of an underlying disease process with a deemed date of injury of 5 October 2018.
DETERMINATIONS MADE:	The Commission determines: 1. The surgery proposed by Dr Damodaran (an anterior lumbar discectomy and interbody fusion at L5/S1 and a posterior decompression at L3) as referred to in his report dated 13 December 2019 is reasonably necessary medical treatment as a result of the continuing effects of the injury the applicant sustained as a result of the aggravation, acceleration and/or exacerbation of an underlying disease process with a deemed date of injury of 5 October 2018. The Commission orders: 2. The respondent is to pay the costs of and incidental to the surgery (an anterior lumbar discectomy and interbody fusion at L5/S1 and a posterior decompression at L3) proposed for the applicant by Dr Damodaran in his report dated 13 December 2019 pursuant to s 60 of the WorkersCompensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Terri Leonard, (the applicant) is 63-years-old and commenced employment with Allity Management Services Pty Ltd (the respondent), in July 2017 as a general service officer.
There is no dispute that as result of the heavy nature of her work, the applicant aggravated an underlying disease condition in her lumbar spine.
Liability was accepted by the respondent for the lumbar spine injury.
On or around 13 December 2019, the applicant’s treating neurosurgeon, Dr Damodaran, forwarded a report to the workers compensation insurance company of the respondent, AAI Ltd Trading as GIO Insurance, requesting approval to perform a surgical procedure on the applicant described as an anterior lumbar discectomy and interbody fusion at L5/S1 and a posterior decompression to address L3 radiculopathy.
The respondent issued a notice dated 20 March 2020 denying liability for the costs involved in this surgery pursuant to s 78 of the Workplace Injury Management Act 1998 (the 1998 Act)
The applicant sought a review of this decision on 9 March 2021.
The respondent undertook a review of the decision and issued a further notice confirming the original decision to decline liability for the surgery proposed by Dr Damodaran. The outcome of the review under s 287A of the 1998 Act was dated 18 March 2021.
The applicant sought a further review of the decision on 15 September 2022.
The respondent undertook a further review of the decision and issued a further notice amending and maintaining the original decision. The further outcome of review decision under s 287A of the 1998 Act is dated 28 September 2022. In that review decision the respondent declined the applicant’s claim on the basis that the degenerative changes in the applicant’s lumbar spine were not related to the applicant’s employment with the respondent and any workplace aggravation of the degenerative condition had ceased. The respondent also maintained that there was a lack of compelling medical evidence to support that the treatment request is reasonably necessary as a result of an injury as the applicant had recovered from the effects of her workplace injury as required by s 59 and s 60 of the Workers Compensation Act 1987 (1987 Act).
By way of an Application to Resolve a Dispute (ARD) filed in the Personal injury Commission (Commission) on 10 April 2024, the applicant requests an order that the respondent pay for the costs of and incidental to the surgery proposed by Dr Damodaran in accordance with s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) has the work-related aggravation, acceleration and/or exacerbation of the underlying disease condition of the applicant’s lumbar spine ceased and as such, is the medical treatment recommended by Dr Damodaran reasonably necessary as a result of an injury as required by s 59 and s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 19 June 2024.
Mr Perry, instructed by Mr Robens, solicitor, appeared in person for the applicant, Ms Terri Leonard who joined the proceedings with her daughter by TEAMS. Mr Barter, counsel instructed by Ms Alikozay, solicitor appeared in person for the respondent. Mr Gretencord from AAI Limited trading as GIO joined the proceedings by TEAMS.
At the commencement of the proceedings, by consent, the applicant amended the ARD under the heading “Injury Details” on page 7 of 9 to include the following:
“In the alternative, the applicant has sustained an injury in the course of her employment by way of an aggravation, exacerbation and/or acceleration of a preexisting disease condition described in the evidence as a spondylolisthesis with a deemed date of injury of 5 October 2018.”
At the preliminary conference held on 8 May 2024, the respondent confirmed that it did not rely on the independent medical report from Dr Keller dated 23 April 2020 as the inclusion of the report would be in breach of regulation 44 of Workers Compensation Regulation 2016.
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) ARD and attached documents, and
(b) Reply and attached documents with the exclusion of the report of Dr Keller dated 23 April 2020.

Oral evidence

There was no oral evidence called at the arbitration hearing. Both counsel made oral submissions which were sound recorded and a copy of the recording is available to the parties

Applicant’s evidence

The applicant has provided a detailed statement dated 20 March 2024 (page 1 of the ARD). In that statement the applicant describes her work duties as follows:
“14. My role with AMS was extremely physically demanding and involved a great deal of heavy lifting. I would say it was the most physically demanding of any employment I have had.
15.    Although I was provided with a daily work plan, it was often difficult to adhere to if I was working on my own or the workload was too significant.
16.    I found that I was often working on my own due to nonattendance of colleagues.
17.    My duties at work involved:
(a) Emptying the three (3) industrial washing machines and placing the washing into three (3) industrial dryers;
(b) Filling the washing machines and dryers with the linen from the dining room from the previous day;
(c) Collecting heavy laundry bags from each utility room which involved taking an empty laundry trolley to each utility room, returning with a trolley filled with laundry bags and emptying the trolleys ready for refilling. Dirty laundry trolleys were collected three (3) times a day at 7:00 am, 9.30am and 11am;
(d) Sorting of clothing, linen and towels from contaminated items;
(e) Filling the washing machines;
(f) Name labelling residents’ clothing whether it be replacing a loose name labels or labelling new clothing brought in;
(g) Folding dining room linen and placing the same onto a trolley for collection by dining room staff;
(h) refilling linen cupboards with folded linens and bedding;
(i) compiling clothing trolleys with clean clothes and delivering clothing trolleys to their respective wings for nursing staff to place in resident’s wardrobes.
20.    The laundry bags I collected were usually overfilled by the nursing staff which made the laundry bags very heavy. Each laundry bag containing only dry items weighed around thirty- thirty-five (30 - 35) kilograms; each bag containing a mix of dry and wet laundry weighed around forty-fifty (40 - 50) kilograms and each bag containing only wet laundry weighed around fifty-sixty (50 - 60) kilograms.”
The applicant relies on a report from her treating neurosurgeon Dr Damodaran dated 13 December 2019 (page 19 of the ARD). The applicant also relies on a report from her treating family doctor, Dr Leckie, dated 14 May 2021 (see page 17 of the ARD) and a copy of Dr Leckie’s clinical notes (see page 21 of the ARD).
The applicant relies on an independent medical report provided by Associate Professor Hope dated 23 February 2021 (page 10 of the ARD) and a supplementary report from Associate Professor Hope dated 9 September 2022 (page 15 of the ARD).

Respondent’s evidence

The respondent relies on an independent medical report provided by Dr Casikar dated 4 February 2020 (page 78 of the ARD and page 17 of the Reply).
The respondent also relies on the four s 78 Notices annexed to the Reply.

Applicant’s submissions

Mr Perry took me to the report from Dr Damodaran dated December 2019 which sets out the recommended surgical procedures.
Mr Perry identifies the part of Dr Casikar’s report which encapsulates the issue for me to decide (see page 81 of the ARD). In that report Dr Casikar opines as follows:
“I believe Ms Leonard's alleged workplace aggravation has resolved. Her continued symptoms relate to underlying spondylolisthesis which in my opinion is fairly significant. There is also severe osteophyte compression at this level. These are the principle [sic] reasons for her complaints.”
In response to Dr Casikar’s opinion, Mr Perry took me to the decision of Murphy V AllityManagement Services Pty Limited [2015] NSWWCCPD 49 at [57] and [58] (Murphy).
In applying the decision of Murphy to the present claim, Mr Perry submits that the applicant
“58 …only has to establish, applying the commonsense test of causation (Kooragang Cement PtyLtd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796) (Kooragang) that the treatment is reasonably necessary ‘as a result of the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWCCPD 18 at [40] - [55]). That is, she has to established that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
Mr Perry submits, that based on the evidence before me, I would be comfortable in finding that the injury the applicant has sustained to her lower back during the course of her employment has materially contributed to the applicant's need for surgery.
Mr Perry submits that the applicant should be accepted as an honest and straightforward witness. He submits that there is nothing to suggest to the contrary in any of the evidence before me.
Mr Perry refers to the applicant’s statement which provides a detailed description of the applicant’s work duties with the respondent. The statement of the applicant also provides a detailed history of the treatment the applicant has undergone since the injury to relieve her pain including physiotherapy, massage, a number of injections and numerous diagnostic studies including X-rays and CT scans together with a referral to a neurosurgeon Dr Damodaran.
Mr Perry commends the respondent’s “laudable approach” to narrow the issue for me to decide to the issue of causation. To this end, Mr Perry notes that Associate Professor Hope and Dr Casikar are in agreement that the proposed surgery is reasonably necessary.
Mr Perry then addresses the opinion that Dr Casikar has expressed in relation to causation. Dr Casikar notes that the applicant suffers from a congenital L5 pars defect, spondylolisthesis and osteophyte compression which were aggravated by the work performed by the applicant. However, Dr Casikar is of the opinion that the work-related aggravation has ceased and the applicant would have developed the symptoms she now experiences at this stage in her life even if she had not suffered the workplace aggravation.
In response to this, Mr Perry states that Dr Casikar fails to acknowledge that prior to the applicant developing back symptoms in August 2018 and October 2018 the applicant had performed heavy work for a year without symptoms. Dr Casikar also fails to address whether or not the applicant’s employment with the respondent made a material contribution to her need for surgery.
Mr Perry also points out that the pre-existing pathology was entirely asymptomatic. It had never been investigated nor diagnosed prior to the work-related events.
Mr Perry also points out that the supplementary report from Associate Professor Hope is dated 9 September 2022 which is less than 18 months ago. He urges upon me the opinions expressed by Associate Professor Hope in his two reports. Associate Professor Hope provided the following opinion in his report dated 23 May 2021:
“Employment is the main contributing factor to the injury. The lumbar spine was previously entirely asymptomatic. Well-described work-related tasks (6 hours of repetitive overuse on 3 August 2018 and a single lifting incident at work on 5 October 2019) induced permanent lumbar pain. Therefore, employment is deemed to have caused the condition.”

Respondent’s submissions

Mr Barter submits that I should not accept the opinion expressed by Associate Professor Hope. In particular, Mr Barter describes the supplementary report provided by Associate Professor Hope dated 9 September 2022 as “sloppy”. In that report, Associate Professor Hope refers to the applicant as “He” not “She” and does not comment on the fact that since his first report, the applicant has been diagnosed with lung cancer in February 2022 for which she was undergoing treatment. Furthermore, Mr Barter notes that Associate Professor Hope did not reexamine the applicant for the purpose of preparing his supplementary report.
Mr Barter submits that there is no evidence before me that the treatment recommended by Dr Damodaran is reasonably necessary “at the moment”.
Mr Barter submits that the applicant refers to two further reports from Dr Damodaran that are not before me but are referred to in the applicant’s statement. The reports are dated 5 December 2019 and 8 January 2020. He questioned what was in these reports.
Mr Barter repeats his submission that there is no current evidence before me supporting the need for surgery. Mr Barter submits that what may have been reasonably necessary in 2019 may no longer be considered reasonably necessary.
Mr Barter referred to the decision of Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab). Mr Barter submits that when considering whether the proposed surgery is reasonably necessary this calls for an assessment of the necessity having regard to all the relevant matters. Mr Barter submits that as I have no current medical evidence before me, I would be unable to reach the conclusion that the proposed surgery was reasonably necessary.
Mr Barter points out that I have no evidence before me as to the current cost of the treatment proposed, the current potential effectiveness of the treatment recommended by Dr Damodaran and is there now alternative treatment available to the applicant which has not been explored.
Mr Barter points out that Associate Professor Hope’s report of 3 February 2021 is over three years old. Mr Barter submits that I do not have any evidence before me from Associate Professor Hope supporting the applicant’s claim that the surgery proposed by Dr Damodaran is still appropriate.
Mr Barter submits that although Dr Casikar’s opinion is over four years old, it is unlikely that he would have deviated from the opinion he expressed in his report dated 4 February 2020 that any aggravation of the underlying degenerative process in the applicant’s lumbar spine due to her work had ceased.

Applicant’s submissions in response

In response, Mr Perry pointed out that at no point in the s 78 notices and the review notices issued by the respondent did the respondent take issue with whether or not the treatment proposed by Dr Damodaran was still reasonably necessary. The respondent did not make an application under s 289A of the 1998 Act to add a further reason for denying liability for the proposed surgery.
Mr Perry points out that the only question raised in the s 78 notice and identified as the issue that I need to determine which was confirmed by the respondent at the preliminary conference and the arbitration hearing, was whether or not the aggravation to the underlying degenerative condition of the applicant’s lumbar spine that had been rendered symptomatic as a result of the nature and conditions of the applicant’s work with the respondent, had ceased and the problems the applicant was now experiencing in her lumbar spine were no longer referrable to the workplace aggravation.
Mr Perry submits that in this respect the opinion of Associate Professor Hope is to be preferred over the opinion expressed by Dr Casikar for the reasons already advanced.

FINDINGS AND REASONS

Section 60 (1) of the 1987 Act provides as follows:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Section 60 (5) of the 1987 Act provides as follows:
“(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service.”
The question that I have been asked to determine is has the work-related aggravation, acceleration and/or exacerbation of the underlying disease condition of the applicant’s lumbar spine ceased and as such, is the medical treatment recommended by Dr Damodaran reasonably necessary as a result of an injury as required by s 59 and s 60 of the 1987 Act.
The parties agree that the treatment recommended by Dr Damodaran is reasonably necessary.
I have considered the evidence in this matter and the submissions made by counsel.
I accept the statement evidence of the applicant. The respondent has not suggested otherwise. The applicant was not cross examined. According to her statement and the clinical notes from the Wellbank Street Medical Practice the applicant has had ongoing debilitating symptoms in her lumbar spine since developing pain in her lower back in August 2018 during the course of her employment.

She has come under the care of Dr Leckie, general practitioner and Dr Damodaran, neurosurgeon. I am of the opinion that the two treating doctors are in the best position to recommend treatment. Dr Damodaran has recommended an anterior lumbar discectomy and interbody fusion at L5/S1 and a posterior decompression to address L3 radiculopathy in his report of 13 December 2019. In the applicant’s statement, she provides a detailed chronology of all the different types of treatment she has undergone in the six months following the development of symptoms in August and October 2018 including physiotherapy, swimming, weight loss, pilates, exercise physiology, cortisone injections, pain killing medication, stretching exercises and heat packs. She also underwent a CT scan and an MRI scan. Finally in April 2019, Dr Leckie referred the applicant to see Dr Damodaran who first saw the applicant on 26 April 2019. Initially, Dr Damodaran recommended conservative treatment however the applicant’s pain did not abate. She returned to see Dr Damodaran on 30 October 2019 and the applicant was referred for nerve conduction studies. On 4 December 2019, the applicant attended Dr Damodaran to review the nerve conduction study results. In that consultation, Dr Damodaran recommended to the applicant that she undergo surgery to address her continuing pain.
Dr Leckie has provided a report dated 14 May 2021. In that report and at that time, Dr Leckie advised that the applicant’s work is the major contributing factor to the applicant’s low back pain. Dr Leckie also indicated that she agreed with Associate Professor Hope’s assessment that work is the major contributing factor. Dr Leckie notes that the applicant had been asymptomatic until lifting at work. I also have the clinical notes from the Wellbank Street Medical Practice where the applicant has consulted with Dr R Leckie (see page 21 of the ARD). Unfortunately, the clinical notes only cover the period 27 June 2018 to 19 June 2021. Despite this, the clinical notes support the considerable treatment the applicant has undergone for her lower back since October 2018. The clinical notes confirm the information the applicant has included in her statement in relation to her treatment. Of note are the numerous references in the clinical notes confirming that the applicant was awaiting surgery. The notes confirm that the applicant has placed her name on the public hospital list for the surgery after she received the correspondence from the respondent denying liability for the surgery (see page 50 of the ARD). The last entry in the clinical notes recorded by Dr Vimalaratnam on 19 June 2021 records “ongoing chronic back pain, awaiting for surgery, script for Targin MR” (see page 57 of the ARD). The clinical notes demonstrate a clear history of ongoing pain since the work-related aggravation of the applicant’s underlying degenerative condition in her lower back and also the applicant’s desire to undergo surgery to address the ongoing pain.
I will now address the conflicting opinions in the independent medical reports that I have before me.
In his report dated 23 February 2021, Associate Professor Hope has taken a detailed history from the applicant in relation to her work duties. He has recorded the weight of the laundry bags the applicant was required to lift, how far the applicant had to move the laundry trolleys, her length of employment, her hours of work and the repetitive nature of her work.
Associate Professor Hope importantly notes that prior to August 2018, the applicant was asymptomatic. He considers the significant pathology present on the CT scan and the MRI scan. He specifically addresses the report from Dr Casikar as follows:
“Dr Casikar’s report is thorough and well written. Dr Casikar and I agree on the diagnosis (anterolisthesis) and the treatment (spinal fusion and decompression). However, Dr Casikar indicates that ‘There was no specific work-related injury’, and ‘These (the degenerative changes) are not related to her employment’. However, this contrasts the clear history of pre-existing pathology being entirely asymptomatic, not investigated, not diagnosed. Well-described work-related events on 3 August 2018 and 5 October 2019 [sic] (2018) caused permanent symptoms in the asymptomatic lumbar spine. Therefore, work is a significant causal factor”.
In the short supplementary report from Associate Professor Hope dated 9 September 2022 whilst I note the incorrect reference to the applicant as “He” not “She” and further note Associate Professor Hope did not reexamine the applicant, I have considered the answers Associate Professor Hope has provided to the request for further information from the applicant’s legal representative and find the answers provided by Associate Professor Hope to the questions helpful in my deliberations.
In that report Associate Professor Hope is asked specific questions including the following:
“Whether, on the balance of probabilities, the injury sustained by the applicant whilst employed by AMS materially contributed to the need for the surgery recommended by Dr Damodaran by way of the onset of debilitating symptoms”.
To which Associate Professor Hope responded:
“The lumbar injury sustained while employed by AMS materially contributed to the need for surgery. The lumbar spine was previously symptom-free. Well described work -related tasks caused permanent symptoms. Surgery is required. The requirement for surgery is work-related”.
I do not find the report “sloppy” as described by Mr Barter. Associate Professor Hope’s use of the words “permanent symptoms” is also supportive of an ongoing aggravation of the degenerative conditions in the applicant’s lower back caused by the applicant’s work with the respondent.
In relation to the respondent’s submission that Associate Professor Hope did not comment on or record in his report dated 9 September 2022 that the applicant had been diagnosed with lung cancer in February 2022, in my opinion it is clear that Associate Professor Hope was not asked about the lung cancer. He was asked a series of specific questions to which he provided comprehensive answers.
There is no evidence before me one way or the other to suggest that the diagnosis of lung cancer and subsequent treatment for that cancer would prevent the applicant from undergoing the surgery recommended by Dr Damodaran. There is also no evidence before me that suggests that the diagnosis and treatment for the cancer represented a break in the causal link between the aggravation of the applicant’s underling disease process in her lumbar spine during the course of her employment with the respondent and the need for surgery.
In this respect, the ARD was filed and served on 10 April 2024. The ARD contained the applicant’s statement which provided full details in relation to her diagnosis with lung cancer and her subsequent treatment. The respondent has had two months to obtain medical evidence to address the applicant’s lung cancer. Neither the applicant nor the respondent have provided me with this evidence. In the absence of this evidence from either party I am not persuaded that the causal chain has been broken by the diagnosis and treatment the applicant has undergone for lung cancer nor has the diagnosis or treatment for her cancer rendered the applicant unsuitable for lumbar surgery.
It is clear that the applicant wishes to proceed with the surgery. The applicant has commenced proceedings in the Commission challenging the respondent's decision to deny liability for the lumbar surgery. Prior to the commencement of proceedings, the applicant's legal representative sought two reviews of the respondent's decision to decline liability for the surgery. The last application for review prior to the commencement of proceedings was made on 15 September 2022 some seven months after the applicant’s diagnosis of lung cancer in February 2022.These steps taken by the applicant, in my opinion support the applicant’s position that despite her lung cancer diagnosis, she is keen to proceed with the lumbar surgery recommended by Dr Damodaran.
According to her statement, the applicant continues with significant problems with her low back. The applicant has tried numerous different forms of treatment seeking relief. Despite the report and quote from Dr Damodaran being quite dated, 13 December 2019, there is no evidence before me to suggest that there has been any intervening injury or incident to the lumbar spine to interrupt the chain of causation. It is clear from her statement the applicant continues with pain.
I agree with the respondent’s submission that there is a hiatus in the medical evidence between September 2022 and 2024 however from the applicant’s statement it is clear that she is still in pain. She has been advised that she needs surgery. She has put her name on the public hospital list. There has been no intervening injury or incident involving her lower back. The absence of medical evidence between September 2022 and 2024 could be attributed to a number of reasons that I have not been made aware of however the question that I have been asked to determine is has the work-related aggravation, acceleration and/or exacerbation of the underlying disease condition of the applicant’s lumbar spine ceased and as such, is the medical treatment recommended by Dr Damodaran reasonably necessary as a result of an injury as required by s 59 and s 60 of the 1987 Act.
I now wish to address the report of Dr Casikar dated 4 February 2020 and provide my reasons for preferring the opinions expressed by Associate Professor Hope and Dr Leckie over the opinion expressed by Dr Casikar.
Dr Casikar opines that there was “no specific work-related injury” (page 81 of the ARD). This is clearly incorrect. On page 2 of his report, (page 79 of the ARD), Dr Casikar states:
“In October 2018 when she was in the utility room, she tried to pull a trolley with a load of wet clothes. One of the bags fell off, which contained mainly wet towels and when trying to retrieve it her back pain reoccurred. Fifteen minutes later there was a sensation of tingling in the right thigh... She went back to her work and she was mainly doing non-laundry work…She also was expected to label the clothes in the cupboard. This involved bending down to reach the clothes on the lower levels of the cupboard. This repetitive movement increased her back pain. The back locked up again”.
This account, in my opinion, describes a work-related injury.
Dr Casikar notes the spondylolisthesis and osteophyte formation in the applicant’s lumbar spine. He opines that these are related to degenerative changes and are not related to employment. What Dr Casikar fails to acknowledge is that the applicant’s degenerative condition was completely asymptomatic at the time of her injury. Dr Casikar fails to acknowledge that up until the work injury the applicant had been able to do her full duties.
The report from Dr Casikar is also internally inconsistent. He repeatedly states that there has not been any specific workplace injury however later in his report he states that the “alleged workplace aggravation has resolved” (page 81of the ARD). He also takes a clear history of the workplace injury in October 2018 when the applicant was retrieving a heavy bag of wet towels.
In coming to the conclusion that the workplace aggravation had resolved, Dr Casikar provides no explanation as to why and when the workplace aggravation had resolved. Despite his opinion that the workplace aggravation had resolved Dr Casikar supports the surgical procedures recommended by Dr Damodaran.
Dr Casikar is of the opinion that the applicant would have developed symptoms in her lower back “at this stage in her life” but he fails to acknowledge that up until the applicant commenced the heavy, repetitive work with the respondent she was asymptomatic and capable of performing her full duties. In relation to the opinion expressed by Dr Casikar that the applicant would have complained of this problem at this stage in her life irrespective of her employment, I note the question that I have to address is has the work the applicant performed with the respondent materially contributed to the problems she now experiences in her lower back. In my opinion the heavy work the applicant has performed with the respondent has materially contributed to the problems the applicant developed in her lower back and continues to materially contribute to the ongoing pain the applicant experiences in her lower back.
Dr Casikar also failed to take a detailed history of the work the applicant was performing on 3 August 2018 when she experienced the first episode of pain in her lower back. Associate Professor Hope noted that on that day, the applicant had been performing heavy repetitive lifting of laundry bags and laundering linen from 7.00am to 1.00pm and after sitting down at lunch time, the applicant experienced severe lumbar pain. Dr Casikar merely recorded that “during her lunch break, when she got up her back seized up.” Dr Casikar has failed to consider the nature and conditions of the applicant’s work and the continuing impact this work has had on the underlying degenerative conditions she has in her lumbar spine.
For these reasons, I reject the opinion of Dr Casikar and prefer the opinions of Associate Professor Hope and Dr Leckie.
In his submissions Mr Barter referred to two reports from Dr Damodaran that were referred to in the applicant’s statement that were not before me. I note in the applicant’s statement she states that the two reports were sent to the insurance company by Dr Damodaran. As I do not have the reports, I cannot draw an inference one way or the other as to whether these two reports would have assisted the applicant’s claim or not. I do not have the reports however as they were addressed to the insurer for the respondent, I am not prepared to draw the conclusion that Mr Barter was suggesting in relation to the contents of the two reports.
On the evidence before me and considering the authorities that have been provided to me by counsel, I find that the work-related aggravation, acceleration and/or exacerbation of the underlying disease condition of the applicant’s lumbar spine has not ceased and the applicant’s injury has materially contributed to the need for the surgery recommended by Dr Damodaran. As such, I find that the medical treatment recommended by Dr Damodaran is reasonably necessary and as a result of the injury deemed to have occurred on 5 October 2018 as required by s 59 and s 60 of the 1987 Act.

[2024] NSWPIC 335

25 June 2024